Nullifying Autocracy: How to Fight Trump’s Powerplay

Withdrawal of consent can make a difference. Nullification is a form of active resistance and disengagement from illegitimate authority, and certainly preferable to continuing to depend on obsolete notions.

By Greg Guma

“Nullification is not a “fringe theory,” asserts conservative constitutional scholar Joe Wolverton II. “It is, in fact, an explicit constitutional mechanism designed to prevent federal usurpation—a principle that predates even the ratification of the Constitution itself.” The article in which this controversial argument appears, published on the Tennessee Conservative website, presents arguments you are not likely to see in mainstream sources. 

I’d like to add a few more, specifically focusing from a more progressive perspective on how we can begin to resist autocracy. As Donald Trump makes good on his threat to weaponize the Department of Justice and FBI against his “enemies,” both political and personal, nullification can become an effective tool to protect basic rights and fight back.

Traditionally, nullification occurs in court when a jury declares a defendant not guilty despite agreement — beyond a reasonable doubt — that a crime was committed. It is a legal form of popular resistance, a way for citizens to respond to malicious prosecutions or the unjust enforcement of laws. At times it has also been used to free popular defendants.

But the strategy need not be restricted to courtrooms. The Brennan Center for Justice explains: “At a time when essential human rights like bodily autonomy are under attack, immigrants face deportation on trumped-up charges, and the government has threatened to use its vast power to punish undesirable citizens, it is easy to feel powerless.” However, by employing nullification strategies, “the people retain the power to fight back and protect the freedom of their fellow Americans.”

As I explained in Restless Spirits & Popular Movements, “The argument for nullification rests on the theory that the states created the national government. Therefore, they have the right to judge the constitutionality of federal laws and potentially refuse to enforce them. Nullification was used when American colonists nullified laws imposed by the British. Since then states have used it to limit federal actions, from the Fugitive Slave Act to unpopular tariffs.” 

Like other states, Vermont had direct, dramatic experience with nullification early in its history. In November 1850, for example, the state legislature approved a so-called Habeas Corpus Law that required officials to assist slaves who made it to the state. The law rendered the Fugitive Slave Act effectively unenforceable. This was a clear case of nullification, a controversial concept even then. Poet John Greenleaf Whittier recommended such tactics, while Virginia governor John B. Floyd warned that they could push the South toward secession. 

Even earlier, support for nullification emerged in reaction to the Adams era Sedition Act. This was one of the key events that prompted the Kentucky Resolve of 1798, written by Thomas Jefferson, and the almost identical Virginia Resolve penned by James Madison. In Section One of his version, Jefferson stated that federal authority wasn’t unlimited, and, if it went too far, need not be obeyed. 

The national government wasn’t the “final judge” of its own powers, Jefferson suggested, and various states had a right to decide how to handle federal overreach. Madison’s Virginia version declared that, in the case of a deliberate and dangerous abuse of power, states not only had a right to object. They were “duty bound” to stop the “progress of the evil” and maintain their “authorities, rights and liberties.”

Ten years later, after President Jefferson enacted a trade embargo in response to British maritime theft and the kidnapping of sailors, legislatures nullified the law using his own words and arguments. On February 5, 1809, the Massachusetts legislature declared that the embargo was “not legally binding on the citizens of the state” and denounced it as “unjust, oppressive, and unconstitutional.” Eventually, every New England state, as well as Delaware, voted to nullify the embargo act.

Today, defenders of the status quo — and that includes AI responses to inquiries about nullification — argue that it is merely a rhetorical tool, a theory “without legal or practical application.” Yet, even before the Trump administration began its assault on various parts of the US Constitution, state legislatures were debating laws designed to nullify federal actions in areas from gun control and health care reform to marijuana possession and overseas troop deployments. More recently, it has been mentioned as a strategy to resist unfair abortion regulations, defend birthright citizenship, and challenge immigration laws.

Ironically, one of the early nullification fights emerged between states and the federal government in the 1800s, a precursor that ultimately led to the Civil War.

The Supreme Court has consistently upheld the principle of federal supremacy, arguing that states cannot nullify federal laws. However, if a Court majority doesn’t acquiesce to the Trump regime’s current push to nullify the separation of powers, due process and other constitutional guarantees, there is little doubt that Trump will not hesitate to defy it. He has already taken the first steps by side stepping and declining to follow court orders. In doing so, he is providing the spark for additional local, state and regional nullification moves to follow.

Wolverton goes further than I would in his judgement about the historic role of the Supreme Court. He accuses it of being “an accomplice in the unconstitutional expansion of federal power” for two centuries. But I do agree with him that the Court has frequently “rubber-stamped unconstitutional federal overreach” and “is not the final arbiter of what is and is not constitutional.” That power rests in the Constitution itself. 

His viewpoint also points to another argument I’ve made over the years. Although the left and right have been culturally polarized for generations — disagreeing over racism, abortion, immigration, climate change and the distribution of wealth — there is some common ground. One area that could prove crucial now, as the federal government slides toward autocracy, is the belief that withdrawal of consent can make a huge difference. Nullification is a form of active resistance and disengagement from illegitimate authority, and that is certainly preferable to continuing to depend on obsolete notions about federal-state relations and an 18th century social contract that can no longer protect us.

Design Flaws: The Road from Delegation to Tyranny

The old constitutional framework has passed its expiration date. The alternatives range from a constitutional convention to radical devolution.

By Greg Guma

The US Constitution contained many brilliant ideas. But it outlined the new nation’s structure and system of laws almost 250 years ago, just eight after the Articles of Confederation — the first Constitution — were adopted. It’s time to ask serious questions about whether it still works.

The Articles were called a voluntary “league of friendship.” But the basic framework — largely independent states and a limited central government — was vulnerable to commercial schemes and corruption, conflicts between small and large states, and difficulties regulating new territories. State legislatures and communities often refused to support actions proposed by the Council of State, which managed general affairs. The national government couldn’t tax the states or exert authority over individuals. 

America soon faced a serious fiscal crisis. As George Washington put it, what the country needed was “a power that will pervade the whole nation.” At first, he and others claimed that the Articles simply could be amended. But that was just a pretext for what became a Constitutional Convention. And instead of adopting amendments, they abandoned the Articles, started from scratch, and ended up replacing state and local control with federal supremacy. 

Now we know that they failed to resolve many of the underlying problems.

The group of men who developed the plan principly gave Congress power over the new government. That was no surprise, since the Articles had created weak legislative and executive branches. The tyranny of the British Crown remained a vivid memory. So the framers searched for a middle way, something new between an ineffectual central government and a voracious dictatorship.

To that end, Article I of the new US Constitution stated clearly that law-making was in the hands of Congress, a power that couldn’t be abdicated or transferred to another branch of government. But nothing prohibited the delegation of power. Instead, the authority of Congress rested on three principles — separation of powers between three branches of government, the idea that delegated powers cannot themselves be delegated, and due process of law. The third of these implied that the regulatory powers of Congress couldn’t be given to private individuals. If that happened, people would be denied due process — exactly what is happening with Donald Trump and Elon Musk in charge.

In 2020, near the end of his first term, Trump made his view crystal clear: “When somebody’s president of the United States, the authority is total.”

For a long time after the constitutional system was created, the Supreme Court interpreted delegation liberally. For example, in an 1825 case, Wayman v. Southard, it said that Congress could delegate power to federal courts, but basically for the purpose of “filling in the details” of laws. Even in an 1892 case, Field v. Clark, which authorized the President to suspend a tariff, the chief executive wasn’t granted authority to make laws. In this and other Court cases, it reiterated the rule that Congress couldn’t delegate its basic functions. 

But as the nation became more complex and industrial, Congress was forced to turn over more power to administrators. Today they’re called bureaucrats, and sometimes the “deep state.” Members of Congress weren’t elected because of their technical skills, and couldn’t keep up with all the changes. Neither could the Courts, which could only act in response to a specific case or controversy. Over time, more functions were performed by presidents and an ever-expanding number of executive agencies. 

By the time Franklin Roosevelt’s “new deal” administration began, Congress was delegating power whenever it felt necessary — with little concern about Court disapproval. Of course, “unfettered” power (whatever that means) would be unconstitutional. But until 1935, the Supreme Court didn’t rule that any specific delegation was too much. 

Then, in Panama Refining v. Ryan, concerning the National Industrial Recovery Act, passed to end the Depression and restore prosperity, the Court ruled that Congressional delegation of power to the President was unconstitutional. Related cases reinforced restrictions on the executive branch.

After that, though, the Court upheld every delegation of power that came its way. 

Why the opposition to “New Deal” delegations? Some say that some Roosevelt era laws were sloppily or hastily written. More likely, several Justices were conservatives who used the Court to kill laws that were inconsistent with their minimal government beliefs. When the cases involved international matters, they almost always refused to restrict legislative delegation of power. 

The President’s power today couldn’t have been imagined by the authors of the Constitution. In fact, they weren’t very clear about what the executive branch should look like. They did fear executive tyranny and have faith in legislative bodies. But they had experienced a weak central government. Thus, Article II was supposed to give the President enough authority to deal effectively with national problems — without overwhelming the other two branches.

Unfortunately, the Article II language was vague. It said that the President should “faithfully execute” laws. But it made the executive commander-in chief of the military, and empowered the President to appoint numerous officials, grant pardons and reprieves, make treaties, and perform many duties connected with Congressional functions. What it did not do was define clear limits, which opened the door to a vast expansion of presidential power. It all depended on the character of the person who won the job. Whoever that was, however, the assumption was that they would share power with the other two branches. 

  Yet here we are, with a neutered Congress, hoping that courts can still impose some limits. The problem is that the Supreme Court has done more to expand than limit presidential power. In fact, it has granted powers to the President that aren’t conferred by laws or even mentioned in the Constitution. In a few cases, it has restrained executive power. But mostly it has rationalized presidential pretensions — especially during “emergencies.” At such times, the Court has been reluctant to interfere, except in cases of extreme abuse of authority. Many legal scholars say that is happening, but the Supreme Court recently ruled that the President is immune from prosecution for any official acts.

In Mississippi v. Johnson, a case emerging during a post-Civil War struggle between President Johnson and Congress about reconstruction, the Court clearly stated that the judiciary could not control the acts of the President. Johnson favored moderation while Radical Republicans wanted strict military control of rebel states. The Court’s decision was a compromise, sidestepping a potential constitutional crisis. 

Article II gave the President enormous influence over domestic affairs through the power to appoint public officials. But questions about removal were left unanswered. In 1926, the Supreme Court did weigh in, apparently giving the President unlimited power to remove government personnel — except for federal judges. Still, it provided no definition of who is a purely executive official, which allowed the Court to decide about removal on a case-by-case basis. 

The case, Myers v. United States, was controversial. Despite the main thrust, it indicated that executive power — even in an emergency — could still be subject to judicial control. Unless, of course, the President decided to defy the third branch of government. Recent statements by the President, Vice President, and various officials raise that prospect. 

For example, a US district court judge recently issued an injunction stopping Elon Musk’s “department of government efficiency” (Doge) from accessing the Treasury Department’s central payment system in search of alleged corruption and waste. In response, Vice President J.D. Vance, a Yale Law School grad, said that judges who issue rulings that attempt to block some of Donald Trump’s executive orders “aren’t allowed” to control the president’s “legitimate power.” A showdown in the Supreme Court is likely.

In foreign affairs, primarily the responsibility of the President and Department of State, some power is nevertheless supposed to be shared with Congress. Treaty ratification requires approval by two-thirds of the Senate. A simple majority is enough for appointment of diplomats. But the growth of presidential authority over war and foreign relations was inevitable. 

In connection with the Korean and Vietnam wars, Congress delegated much of its power, despite doubts that this was constitutional. And Presidents have used executive agreements rather than treaties to make international deals. These don’t require Senate approval, and the Supreme Court has said that they have the same legal effect.

Two centuries after the US constitutional system was created, it has gradually unraveled under the explosive force of the imperial presidency. The framers, though they could not predict the global dominance of the US, were certainly aware of the danger — a drift toward monarchy. Unfortunately, their 18th century solution no longer makes sense.

A different approach is needed again. Even if Trump’s monarchical power grab fails, Presidents will continue to seek more power until clear limits are imposed and public pressure reverses the long-term trend. In the end, the US may need another Constitutional Convention. Given the way things are going, any risks may turn out to be preferable to the inexorable drift toward tyranny.

But a Convention may not be practical at the moment. On the other hand, states did empower the federal government and ratify the current constitutional system. It’s time now for them and regional pacts to act, asserting their sovereignty by challenging or nullifying illegitimate presidential actions. What America needs is a radical devolution, a grassroots movement that restores the balance between federal, state and local power. 

As Thomas Jefferson explained in reaction to the repressive Sedition Act, federal power isn’t unlimited. When it goes too far, he argued, it need not be obeyed. States have the right to decide how to handle federal overreach. In fact, they are obligated, as Jefferson wrote, to stop the “progress of evil” and maintain their “authorities, rights and liberties.” 

Let the devolution begin.

Derailing the Engine of Liberty

The Trump crusade to end birthright citizenship isn’t a new idea. But it would create a permanent caste of aliens.

It’s a crystal clear idea: citizenship and equal protection under the law for everyone born or naturalized in the United States. Beyond that, the 14th Amendment to the US Constitution also protects the rights of life, liberty, and property of all citizens.

        The language is unequivocal. "All persons born or naturalized in the United States," it states, "and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

        And yet, like so many things these days, this could change.

        During his recent campaign for re-election Donald Trump repeated his past pledges about ending and revoking the citizenship status of children born in the United States to non-citizen parents. On Dec. 8, 2024, he told NBC News in a post-election interview that it was an official goal. “We’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it.” He also claimed that he could use his presidential powers —  through the use of executive orders — to end birthright citizenship “if we can.”

        But can he? On Jan. 23, a federal district court judge said no, temporarily blocking Trump’s presidential order to limit birthright citizenship. Judge John Coughenour was responding to legal challenges from four states. It’s just the first step in what will no doubt be a multi-year, multi-state and federal legal battle. Coughenour blocked the Trump order for just 14 days, ending on February 6th. "I’ve been on the bench for over four decades," said the judge, a Reagan appointee. "I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."

        The day before that deadline, District Judge Deborah L. Boardman granted another temporary restraining order after a group of 16 pregnant women sued the Trump administration. “No court in the country has ever endorsed the president’s interpretation,” she said. “This court will not be the first.” The lawsuit is one of several from pregnant women, civil rights groups and state officials challenging the order.

        Yet it’s not unprecedented.  In fact, the idea has been pushed for decades by Republicans, many of them publicly saying that they want to abolish the citizenship guarantee of this 140-year-old Amendment.

        The official reasons? It’s a smorgasbord, to use imported slang. Some say that too many undocumented immigrants come to the US just to insure citizenship for their children. This fuels ideas like getting states to deny public education and other benefits to children of undocumented parents. The immigrant "threat” is often a pretext for attacks on basic rights and constitutional principles.

        Hatred and cruelty directed at immigrants is a persistent theme in US politics. In 1996, for example, when then-California Gov. Pete Wilson announced that undocumented pregnant women should be denied prenatal care, his underlying message was clear and brutal: If you’re “illegal,” get out of our country!

        “Citizenship in this country should not be bestowed on people who are the children of folks who come into this country illegally," argued Tom Tancredo, a Colorado Republican Congressman who led the charge long before the rise of Trump. As far back as 2006 at least 83 GOP co-sponsors pushed a bill that would have restricted automatic citizenship at birth to children of U.S. citizens and legal residents.

        More than 150 years ago, at the end of a two-year war, US and Mexican leaders signed the Treaty of Guadalupe Hidalgo. Many Latinos still feel that the treaty, accepted under pressure by a corrupt dictator, was an act of theft violating international law. Mexico surrendered half its territory — currently the Southwestern United States — and most of the Mexicans who stayed in the ceded region ultimately lost their land.

        In a sense, that war never ended. Throughout the remainder of the 19th century, US officials, working closely with white settlers and elites, used often-violent means to subdue Mexicans in the region. Once the region was “pacified,” border enforcement became a tool to regulate the flow of labor into the US. With the passage of the Immigration Act of 1924, the Border Patrol emerged as gatekeeper of a “revolving door,” sometimes processing immigrant labor, sometimes cracking down. The Bracero Program, which brought in Mexican agricultural laborers, was followed (and overlapped by) Operation Wetback, an INS-run military offensive against immigrant workers.

        Trump's order not only directs federal agencies to stop issuing citizenship documents to U.S.-born children of undocumented mothers; it applies to mothers in the country on temporary visas, if the father isn’t a citizen or permanent resident.

        According to a lawsuit filed by 18 states, there are about 150,000 children born each year to two parents who are non-citizens and lack legal status. California Attorney General Rob Bonta estimates the order would affect more than 20,000 newborns each year — 5% of the babies born in that state annually.

        In the past, the Supreme Court has described citizenship as the most basic of all rights, a "priceless possession." The opening clause of the 14th Amendment was designed principally to grant both national and state citizenship to the newly free Blacks. Under its terms, citizenship is acquired by either birth or naturalization; thus, any person born in the US is a citizen — regardless of parentage.

        But the current Supreme Court isn’t easy to predict. The justices would likely rule against the executive order, scholars claim — that is, if they took up the issue. But they could also decide not to rule or defer to lower court rulings.

        A primary goal of the 14th Amendment was to overrule the notorious Dred Scott decision, in which the Supreme Court held that neither Blacks who were "imported into this country and sold as slaves nor their descendants" could become citizens. During debate in 1866, Congress also considered the likelihood that it would apply to children of immigrants. Until the 14th Amendment, there was no constitutional definition of US citizenship. Ironically, the Republican Party pushed this and other Reconstruction measures through Congress after the Civil War.

        If children born in the US to illegal immigrants are citizens, some also charge that it's too easy for their parents to obtain visas and citizenship later. This idea first surfaced in the 1996 GOP platform. Recommended by a panel created by then House Speaker Newt Gingrich, a proposal called for "a constitutional amendment or constitutionally valid legislation declaring that children born in the United States of parents illegally present are not automatically citizens." Scholars warned then that another constitutionsl amendment would almost certainly be needed to make such a profound change.

        A month before she died, Barbara Jordan, former chairwoman of the US Commission on Immigration Reform, eloquently denounced the idea. "To deny birthright citizenship," she told Congress, "is to derail the engine of American liberty." Walter Dellinger, Acting Solicitor General at that time, added the following prediction: It would create "a permanent caste of aliens, generation after generation born in America but never to be among its citizens." 

        Be that as it may, another bad idea is back.

Overkill: The Deadly Illogic of Gun Rights

When a disturbed teenager or adult commits mass murder it has nothing to do with liberty. Yet, since the weapon is usually a gun, many people in the US essentially say that the freedom to be armed is more important that the right to be safe. In fact, millions claim that being armed is the only way to be safe. Like most arguments against gun control, it’s cruel and illogical.

By Greg Guma

For decades now, leaders of gun rights groups have made the same case. They claim, for example, that the only thing separating Americans from people living in dictatorships is their unrestricted access to weapons. If the police have all the guns, they say, attacks against defenseless citizens will become as common in the US as they are in oppressed countries. This is one of the reasons why gun owners oppose the banning of so-called assault rifles. 

Does this sound familiar? It certainly should. The same argument is still being made today by those who say nothing can be done to stop mass shootings like the recent ones in Texas and upstate New York. They also warn that only way to prevent a police state here, which many people claim is underway, is to allow the wide and unregulated distribution of all sorts of weapons.

This idea, which assumes that any regulation is the first step toward confiscation, represents a paranoid and individualist mentality that for decades has dominated debate about gun violence in the US. We are free, the argument goes, only as long as we can defend ourselves with guns, not only against criminals but also against the law and the State.

A related argument is that the federal government should not be allowed to regulate guns; this is a matter best left to states. And if a state wants to do nothing, perhaps because the gun lobby can defeat candidates who back even modest reforms, or because the crime rate isn’t soaring or no mass shootings have recently occurred, people in neighboring states must simply spend more money to crack down on crime and violence. It’s just the price of freedom.

Such positions are based on the notion that government should not meddle in the affairs of individuals. Guns aren’t the problem, opponents add, it’s people — in other words, human nature. But most homicides in the US are committed with guns; in other words, people with guns kill more people than those without them. 

There are 393 million privately owned firearms in this country — up almost 100 million in the last ten years. Use by children has also increased, as has the stockpiling of exotic weapons by extreme groups and criminal organizations. Three-in-ten American adults say they currently own a gun, and another 11 percent say they don’t personally own a gun but live with someone who does.

Gun ownership is more common among men than women, and white men are particularly likely to be gun owners. Among those who live in rural areas, 46 percent say they are gun owners, compared with 28 percent of those who live in the suburbs and 19 percent in urban areas. There are also significant differences across parties, with Republican and Republican-leaning independents more than twice as likely as Democrats and those who lean Democratic to say they own a gun.

Considering all this, it seems fair to ask what is more threatening to freedom and security, unrestrained gun ownership or some government oversight? 

The arguments against regulation tend to fall into three categories: 1) the right to bear arms is constitutionally protected, 2) gun control won’t reduce violence in society, and 3) gun laws are a serious threat to freedom. But do these assertions hold up to scrutiny?

The roots of traditional US ideas about the relationship between weapons and society actually go back centuries to the Florentine political philosopher Niccolo Machiavelli, who noted that military service should be the responsibility of every citizen, but soldiering the professional of none. Basing his ideas on the Roman suspicion of professional soldiers, he concluded that military force should only be used to assure the common good. 

This idea of citizens bearing arms in defense of the State, to avoid the potential tyranny of a standing army, was translated by the authors of the Bill of Rights into the Second Amendments and helps to explain its unusual wording:

“A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

Many libertarians have interpreted this sentence to mean that individuals are guaranteed the right to possess firearms for their personal defense or for any other use they choose. What this fails to acknowledge is the meaning of citizenship as it was understood two and a half centuries ago. In the 18th century, citizenship directly involved militia service for men, which was part of the commitment to the greater public good. An armed citizenry did not mean an armed population. In fact, even then it was clearly understood that access to weapons was a communal rather than an individual right.

This dynamic was made clear in various declarations of rights predating the Bill of Rights. For example, Virginia’s Declaration of Rights, adopted on June 12, 1776, said that a well-regulated militia, trained to arm, was the safe defense of a free State. That and subsequent variations adopted by other states made it clear that the idea was trained citizens, organized in militias, providing for a common defense. The word “people” refers to this collective role, contrasting a militia to a standing army.

Article 17 of Vermont’s Declaration of Rights, adopted in 1777, followed this logic by proclaiming:

“That the people have a right to bear arms for the defense of themselves and the State; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military ought to be kept under strict subordination to and governed by the civil power.”

Vermont’s Article 9, which dealt with the matter of conscientious objection to military service, made it clear that “bearing arms” meant military service. It said that no one could be compelled to carry or use a gun, even though rights also involved personal service. The solution was that those who chose not to serve would pay an appropriate sum of money. Bearing arms was directly linked to the collective responsibility for defense.

Several states specifically said that criminals or people involved in rebellion could be disarmed. In other words, the security of society took precedence over an individual’s right to have weapons. Thus, when early Americans spoke or an armed citizenry’s role in preserving freedom, they were talking about a militia linked to the classical idea of citizenship. There is no record of anyone arguing, during the passage of the Bill of Rights, that individuals had a right to bear arms outside the ranks of a militia. On the contrary, that provoked fear for the stability of the new Republic.

The great constitutional commentator of the period, Justice Joseph Story, noted that what the Second Amendment actually guaranteed was a “well-regulated militia.” The fear was that without one the country might be vulnerable to invasion, domestic insurrection, or a military takeover by some ruler. We needed a militia, Story said, because it was impractical to keep people armed without some organization.

The fear of a militarized society or a federal government monopoly on force is not, by definition, a form of paranoia. On the other hand, it is an overreach to claim that individuals have a fundamental right to protect themselves by stockpiling weapons. For those who want a counter-force to our national government, the direction to look is greater autonomy of organized local or state militias, not the right of people to become self-appointed guardians or vigilantes.

Despite the endless repetition of claims that individuals have a constitutional right to be armed, this is not consistent with the weight of legal opinion. In fact, several US Supreme Court cases have made the situation quite clear. In U.S. v. Cruikshank (1876), the Court ruled that the right “of bearing arms for a lawful purpose is not a right granted by the Constitution.” Ten years later, in Presser v. Illinois, the Court noted that although states have the right to form militias, they are also free to regulate the circumstances under which citizens can carry weapons. This view was upheld in an 1894 case, Miller v. Texas.

In 1939, federal gun regulations established by the National Firearms Act of 1934 were challenged. The decision in that case was unanimous. The federal government has the right, the Court ruled, to regulate the transportation and possession of firearms, and individuals only have a right to be armed in connection with military service. In 1980, Justice Harry Blackmun commented that this case represented the Courts’ basic thinking on gun control.

On June 8, 1981, the Village of Morton Grove, Illinois passed an ordinance banning the possession of handguns, except by police, prison officials, members of the military, recognized collectors and those who needed them for their work. Predictably, the National Rifle Association challenged the law. Both the Federal District Court and a Federal Appeals Court rejected their argument, saying that there is no individual right to bear arms, the ordinance was reasonable, and the right to have weapons applies only to well-regulated militias. The US Supreme Court refused to even hear the case.

Sentiment in favor on some form of gun control fluctuates, but has tended to grow for decades. In 1968, 71 percent were in favor, peaking at more than 90 percent in 1981. In one Gallop Poll the Brady Bill won 95 percent support. Most people obviously see some connection between the availability of firearms and the rate of crimes involving guns, and a variety of studies support these views. Nevertheless, opponents insist that stronger laws won’t have an impact.

Interstate trafficking of weapons is an enormous problem, undercutting the argument sometimes heard that the only reason for gun control is a high murder rate in a specific state. This provincial argument ignores interdependence, our responsibility to our neighbors, and basic facts. The only effective way to control the black market for guns, through gun shows and private sales, is a national registry of purchasers, along with tracing and prosecution of the interstate traffickers. This does not involve rounding up handguns. But it does mean acknowledging that the situation is out of control and that saving lives takes priority over protecting a form of free enterprise that has turned monstrous.

Leaving the matter in the hands of individual communities or states may sound appropriately populist. But it avoids the issue. Ten years ago guns were involved in more than 32,000 US deaths, 11,100 of them murders, as well as thousands of rapes, hundreds of thousands of robberies, and about a half million assaults. In 2020, 45,222 people died from gun-related injuries, according to the CDC,

Most people convicted of violent crimes obtain their weapons either at a gun shows or on the black market. This suggests that background checks alone will not make a huge dent in the problem. But a reduction of twenty percent would be significant: less children killed every day and fewer rapes and murders.

Many crimes involving guns are impulsive, suggesting that a waiting period helps. Of course, the underlying causes of violence and crime must also be addressed. But for those who might be saved by modest reforms that would be more meaningful than any statistic or slogan.

The NRA is fond of saying that “guns don’t kill people, people kill people.” It’s a tidy little argument but let’s get real: people with guns can kill people far more quickly and effortlessly than people with knives, deadly fighting skills or poison. The FBI has assembled evidence on whether stricter laws make a difference. For example, after Massachusetts passed a law requiring a mandatory jail sentence for carrying a handgun without a license murders involving handguns dropped by almost 50 percent. Robberies went down 35 percent. After South Carolina tightened its handgun purchase requirement in the 1990s, the murder rate dropped 28 percent.

Registration and background checks alone will not solve the problem. However, they do keep weapons out of the hands of some criminals, addicts and kids. They can also reduce the number of murders and suicides that result from being able to buy a gun in state of rage or depression. Drivers licenses and automobile registration do not prevent all auto accidents – but they help. To drive a car, a potentially dangerous vehicle, we agree that people need to be properly trained and meet minimum standards. Similar requirements, in the form of gun safety programs and practical tests for the owners of lethal weapons, would be a step toward national sanity.

No freedom is absolute. Even in the most decentralized and self-managed society, people must accept some social responsibilities and limits in exchange for liberty. Ideally, in a free society citizens participate directly in making the rules governing their social contract. But even Michael Bakunin, an anarchist philosopher who took the practice of liberty to a place some might consider extreme, did not ignore than importance of social responsibility. Human beings can only fulfill their free individuality by complementing it through all the individuals around them, he argued. Bakunin was contemptuous of the type of individualism that asserts the well-being on one person or group to the detriment of others.“Total isolation is intellectual, moral and material death.” he wrote.

When a disturbed teenager or adult commits mass murder it has nothing to do with liberty. People obviously do not have the right to abuse or destroy the lives and liberties of others. Yet, if the weapon is a gun, many people essentially argue that the freedom to be armed is more important that the right to be safe. In fact, many say that being armed is the only way to be safe.

Allowing the government to take any step, argue the opponents of gun regulation, is the beginning of tyranny. From this vantage point government is the enemy. It would be naive to argue that the government always uses its power wisely. The political system cries out for change, if not transformation, if we are ever to have a society that promotes real equality, justice, respect for diversity, and self-management. Yet achieving this, empowering people and making step-by-step progress, requires an appeal to hope rather than fear. Arguing that the only way to be free is to oppose and resist government, in other words knee-jerk rejection, plays into the hands of the most reactionary forces in society.

Suspicion of centralized power was clearly a concern of those who created the country. It is still justified and relevant. But the form that most threatens freedom in the 21st century is the power of powerful, unaccountable groups and organizations, most of them private, that can influence elections and shaped government policies. Many of these same interests aggressively argue that freedom means “freedom from government.” Such appeals are a convenient way to prevent intrusions into the private “right” to profit and pollute at the expense of the general health and well-being – to exploit in the name of freedom.

In the 1970s a Trilateral Commission study candidly concluded that a central objective of corporate planning in the coming era would be to lower expectations. People needed to be convinced to expect less, to accept a reduced standard of living and stop demanding that government solve all their problems. Reagan was not a Trilateralist, but he was an effective spokesman for the same position. The Clinton administration, although committed rhetorically to “activist” government, embraced a similar social and economic agenda.

The bottom line is this: Effective regulation, combined with a comprehensive national database and a training program for gun users, would establish over time that less access to guns leads to less violent crime. This has been the case in Europe and some US states. Success would help shatter the myth that government is the problem, and that people are better off armed to the teeth and on their own.

The debate over guns is not about restricting rights. That’s the cover story, an assumption promoted by the gun lobby to shape public perceptions. It’s not even about “control.” The goal is security, freedom from the fear and anxiety sweeping across this over-armed society.

A well-regulated militia is a altruistic idea, certainly preferable to the military-industrial complex. But almost 400 million guns in private hands is — pardon the expression — overkill.