Guest Essayist: David B. Kopel

In 1949, after more than 20 years of fighting, the Chinese Communist Party overthrew the Republic of China. The party’s chairman, Mao Zedong, became dictator, and ruled until his death in 1976. Mao’s regime was the most murderous in history. His regime killed over 86 million people—more than Hitler and Stalin combined.

In 1966 Mao initiated “The Great Proletarian Cultural Revolution.” It started as a campaign against the more pragmatic elements of the Chinese Communist Party—such as leaders who a few years before had forced Mao to retreat from an agricultural collectivization program, the Great Leap Forward, that had caused the deadliest famine ever.

Incited by Mao, the Cultural Revolution began with the most privileged students—the children of the top communist party officials—at the top universities. They rioted, rampaged, and looted, first on-campus and then beyond. They started by killing or torturing teachers, and then moved on to the general public. Soon, the rage mobs of ultra-Maoists spread nationwide. Anyone’s home could be invaded and looted, and anyone could be murdered or tortured. The police were forbidden to interfere—or even to fight back when the mobs assaulted the police.

As the Cultural Revolution continued, things got even worse. The Cultural Revolution ended only when Mao died.

The Americans who created the United States Constitution could not know about the tyrants who would arise in the twentieth century. They did know of bad men who had tried to seize absolute power, such as Julius Caesar in the Roman Republic, or King James II of England. Yet the worst of English kings or Roman emperors were mild in comparison to the totalitarian Mao regime.

The American “people did not establish primarily a utility-maximizing constitution, but rather a tyranny-minimizing one.” Rebecca I. Brown, Accountability, Liberty, and the Constitution, 98 Columbia Law Review 531, 570 (1998). This essay describes some of the provisions of the U.S. Constitution that aim to thwart absolutism and totalitarianism. The information about China under Mao is based on David B. Kopel, The Party Commands the Gun: Mao Zedong’s Arms Policies and Mass Killings, Chapter 19.D.3 in Nicholas J. Johnson, David B. Kopel, George A. Mocsary, E. Gregory Wallace & Donald E. Kilmer, Firearms Law and the Second Amendment: Regulation, Rights and Policy (Aspen Publishers, 3d ed. 2022), pp. 1863-1966. Additional citations are available therein.

The Preamble to the Constitution states:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The principles and the results of the Mao regime were the opposite. For example, starting in 1972-73, the people were ordered to condemn the “reactionary” ideas of Confucius, such as “the people are the foundation of the state,” and “depositing riches in the people.” As described below, the Mao regime cultivated injustice, domestic violence, the welfare of the ruling class at the expense of the people, and the eradication of liberty. The regime did “provide for the common defense” in the sense that China was not invaded in 1949-76, other than in some border clashes with the Soviet Union.

The U.S. Constitution creates three distinct and independent branches of government:

“All legislative powers herein granted shall be vested in a Congress of the United States.” Art. I, §1.

“The executive power shall be vested in a President of the United States of America.” Art. II, §1.

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Art. III, §1

Under the U.S. Constitution, the three branches of government check and balance each other, as power is set against power. In a communist regime, there are no checks on the party’s will. All political power belongs to the party. Under Mao, “at the top, thirty to forty men made all the major decisions. Their power was personal, fluid, and dependent on their relations with Mao.” Andrew J. Nathan, Foreword, in Li Zhusui, The Private Life of Chairman Mao xi (Tai Hung-Chao trans. 1994).

“The House of Representatives shall be composed of members chosen every second year by the people of the several states.” Senators are to be elected every “six years” and the President every “four years.” Art. I §§2-3; Art. II §1.

There have been no elections since the Chinese Communist Party (CCP) seized power in 1949. Although the party calls the nation it rules the “People’s Republic of China,” the name is a lie. In a “republic” where “the people” rule, the people elect government officials. In the People’s Republic of China, the party rules because the military keeps the party in power. It is reasonable to infer that the CCP knows that if free elections were held, the CCP would lose.

Particular types of “power” are granted to each of the three branches of government. Arts. I §8, II §§2-3, III §2.

The three branches of United States government are granted certain powers by the people. The branches of government may exercise the particular powers expressly granted by the Constitution, as well as some incidental powers that are implied by the express grants. No branch of government, and not even the U.S. government as a whole, has all possible powers.

A communist regime claims unlimited power over everything. Mao acknowledged no legal limit on himself. The practical limit was the difficulty of one man imposing his absolute will on hundreds of millions. The Cultural Revolution was Mao’s method for eliminating everything and everyone that impeded his power.

Congress creates law by passing a “bill,” in compliance with certain procedures. Art. I §7.

The Mao regime was not based on law. As Mao told the very sympathetic American journalist Edgar Snow, “We don’t really know what is meant by law, because we have never paid any attention to it!” Li Cheng-Chung, The Question of Human Rights on China Mainland 12 (1979) (statement to Edgar Snow 1961).

During the 1950s, there were some efforts to create normal legal codes, but these were abandoned once the Great Leap Forward into full communism began in 1958. In contrast to the Hitler regime, which issued many statutes and regulations, the Mao system relied mainly on edicts from the communist leadership, the Party Center. There were many exhortative propaganda campaigns based on slogans.

The party-controlled national newspaper, the People’s Daily, was read to peasants and workers in frequent, mandatory political instruction meetings, which often consumed the rest of the day after work. In effect, the latest article in the People’s Daily was the official source for people to learn how to behave without getting in trouble with the authorities. As different factions within the CCP gained ascendency, the edicts changed frequently. So doing what had been mandatory on Monday could be punished on Friday.

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Art. I §9.

When a court issues a writ of habeas corpus, whoever is holding an individual prisoner must appear in court and prove to the court that the detention of the prisoner is lawful. In communist regimes, there is no recourse for individuals who are arbitrarily imprisoned or sent to slave labor camps.

Neither the federal government nor the states may enact any “ex post facto law.” Art. I §§9-10.

In other words, a criminal law cannot retrospectively punish an act that was lawful at the time it was committed. Just the opposite under Mao and all communist regimes. For example, in the 1956 Hundred Flowers period, people were encouraged to frankly express their views about perceived shortcomings of the CCP. Later, persons who had done so were imprisoned or sent to slave labor camps.

Likewise, during the first several months of the Cultural Revolution, young people from all over China were given free train tickets to see Chairman Mao speak at mass rallies at Tiananmen Square in Beijing. This was an exception to the normal rule that a person could not travel away from his or her village.

A few years later, when factional politics within the CCP had changed, 3.5 million people who had attended one of the 1966 rallies were given other free tickets: one-way transportation to forced labor in the countryside.

Throughout the Mao era, people were often punished for acts that had been lawful at the time, such as expressing non-communist political opinions in the 1930s.

“The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II §1.

The President’s salary and expense accounts are set by Congress. Mao, in contrast, treated himself to whatever he wanted. In Beijing he lived in the former palace of the emperors, with his own private swimming pool and beach. He had fifty more fortified palaces around the country.

The special Giant Mountain (Jushan) farm supplied fine foods daily to the portly Mao and the others at apex of the CCP food chain. When Mao was away from Beijing, which was most of the time, daily airplanes delivered food from Jushan. The élite CCP leadership in the provinces had similar arrangements for special food, while the masses starved.

Mao enjoyed the company of many beautiful young concubines, procured for him by government employees.

During the Cultural Revolution, everyone had to buy a book of his sayings, Quotations from Chairman Mao Zedong, popularly known as “The Little Red Book.” Mao decided that he was entitled to royalties from all the forced book sales, and he became the first millionaire in Communist China.

As explained by a former vice-president of communist Yugoslavia, all communist governments eventually replace the old wealthy class with a new class of reactionary despots. Property that was nationalized in the name of “the people” becomes the property of the most privileged at the top of the inner party, the “all-powerful exploiters and masters.” Milovan Dijilas, New Class: An Analysis of the Communist System 47 (1957). The same point is made in George Orwell’s book Animal Farm (1945).

“The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Art. II §4.

The constitutional system of elections makes a president removable by the people every four years. In addition, a president may be removed during his term if he is impeached by the House and then convicted by the Senate. In 1974, President Richard Nixon resigned when facing certain impeachment and conviction because of his crimes, including the coverup of an attempted burglary, directed by Nixon’s staff, of the Democratic National Committee office at the Watergate office complex.

But there was no way to remove Mao, even when, as in the Great Leap Forward or the Cultural Revolution, the majority of the people, and even the majority of the CCP elite, thought that he was leading the nation into ruin. Like a bad Roman Emperor, Mao could only be removed by force.

In 1971, Mao began plotting to get rid of defense minister Lin Biao. Lin’s son began organizing a coup against Mao. The plan was to bomb Mao’s train in September 1971, when he would be returning from a trip to southern China to shore up support from the army generals there for Mao’s plan to remove Lin.

But Mao, knowing he was widely hated, often changed his travel plans at the last minute, as a security precaution. This time, the last-minute change saved his life. Lin Biao and his family tried to flee to Mongolia, dying in a plane crash on September 13, 1971.

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” Art. III §1.

“The trial of all crimes, except in cases of impeachment, shall be by jury.” Art. III §3.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” Amendment VI.

The U.S. Constitution guarantees the right to jury trial, with fair trial procedures, such as the right to counsel, public proceedings, and the right to cross-examine witnesses. Federal judges hold their positions until they choose to retire, and they cannot be removed for political reasons.

Under Mao, “judicial reform” purged judicial officers and ensured that a puppet judiciary would never err on the side of lenience against dissidents. Courts ceased to exist as independent finders of fact. They became administrative processing units for predetermined sentences. Entirely under the thumb of the CCP, judges merely pronounced the severe sentences that CCP officials had already decided. In cases where the law was not clear, judges were required to follow the Central Party line. According to the CCP official newspaper, People’s Daily, the accused were “presumed to be guilty. . . . Giving the accused the benefit of the doubt is a bourgeois weakness.”

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Amendment I.

No government-established religion, and free exercise of religion

As soon as the communists seized power, they began suppressing some religious organizations and bringing the rest under state control. Religious organizations could exist only as entities subordinate to and directed by the CCP. Soon, the government began to attempt to exterminate religion entirely. While atheism was the official communist belief, the party recognized that religion made people harder to control, as the faithful recognized a higher power than the CCP.

Today’s China is little different. Tibetan Buddhists, Uighur Muslims, and Falun Gong face the worst persecution. Christian denominations are allowed to exist only as state-controlled entities.

Mao despised religion. When Tibet’s Dalai Lama visited Mao in Beijing in 1954, Mao told him, “I understand you well. But of course, religion is poison. It has two great defects: It undermines the race, and secondly it retards the progress of the country. Tibet and Mongolia have both been poisoned by it.” Dalai Lama, My Land and My People 117-18 (2006).

Mao always wanted to be the center of attention. He didn’t like the Chinese national anthem, March of the Volunteers, which had been adopted by the CCP in 1949. It had originally been a song for people of all political persuasions who fought the Japanese invasion of China of 1933-45. During the Cultural Revolution, Mao put the national anthem author in prison, where he died. Although Mao did not formally change the national anthem, for almost every occasion that the national anthem would be played, Mao made the state media (the only media) instead play a song about him, The East Is Red.

“The East Is Red (Dongfang hong):
From China comes Mao Zedong.
He strives for the people’s happiness,
Hurrah, he is the people’s great saviour!
Chairman Mao loves the people,
He is our guide to building a new China.
Hurrah, lead us forward!”

For schoolchildren, a soon-to-be pervasive new song was composed in 1966: “Father is dear, mother is dear, But not as dear as Chairman Mao.”

Under German regime of the National Socialist German Workers Party (“Nazi” for short), people were required to say “Heil Hitler” rather than “Good morning” or “Hello.” The same became true with “Long Live Chairman Mao”—literally, “Chairman Mao ten thousand years” (Mao zhuxi wansui). One man was executed for saying that Chairman Mao would not actually live ten thousand years.

With Mao’s blessing, the military (the “People’s Liberation Army,” PLA) began establishing a new religion for China. Starting in the latter part of 1967, most nonwork time was taken up by mandatory nightly assemblies where people had to discuss their personal behavior in light of Mao Zedong Thought. Then came the 1968-69 campaign of “Three Loyalties” and “Four Boundless Loves” that everyone was supposed to feel for Chairman Mao.

Statues and shrines of Mao were erected everywhere. Busts or pictures of Mao were mandatory home religious items.

Although there was good money to be made, painters often declined the opportunity to paint a Mao icon, since the artist would be scrutinized and punished for the slightest inadvertent sign of insufficient veneration.

Upon arising in the morning, everyone had to face their home Mao shrine and “ask for instructions.” The day ended with “reporting back in the evening.” Mao replaced the “kitchen god” of Chinese folk culture. In other aspects Mao was portrayed as the sun god.

Life was structured around Mao and his words. Before every meal, people had to say grace: “Long live Chairman Mao and the Chinese Communist Party.”

Maoist life encompassed the body as well as the mind. Instead of normal sports, the new exercise routine was “quotation gymnastics”—a set of group exercises in which participants shouted Mao quotes related to the motions. For example, in the third set of exercises, the leader would yell “political power grows out of the barrel of a gun.” The exercisers would make nine thrusting and stabbing motions with imaginary bayonets.

Even more common were “loyalty dances,” in which individuals or groups stretched their arms to show their “boundless hot love” for Mao, sometimes worshipping him as the sun. The PLA enforcers labeled any nonparticipant in the Mao rites as an “active counterrevolutionary.”

People began reporting miracles such as healing of the sick and attributing them to Mao. Communist temples were erected, based on the historic model of ancestral temples. When buying a Mao item in a store, one could not use the common word for buying, mai; instead one would use the polite verb actress Jiang Qing, previously reserved for the purchase of religious items.

Freedom of speech and freedom of the press

When the communists were fighting to overthrow the Republic, they promised freedom of speech for everyone. As soon the Communists seized power, all nongovernment newspapers were closed.

All radios were confiscated, so no one could hear news from the outside world. The confiscation of radio transmitters ensured that people could not communicate with each other at a distance.

All mail was surveilled, and the contents were put in the secret files that the government kept on everyone.

Once people saw what communist rule was like, many people burned their book collections, because possession of a book—even an apolitical book—that was not based on communist ideology might result in the owner being labeled a “counterrevolutionary” and sent to a slave labor camp.

During the Cultural Revolution, the rage mobs pillaged libraries and burned books in huge outdoor bonfires, reminiscent of similar book burnings in Nazi Germany. The Nazi book burners mainly targeted books by Jewish authors, but Mao’s mobs were more ambitious. Any book that was not communist—such as books of ancient poetry—was put to the torch. Many rare historic manuscripts were destroyed.

Mao’s fourth wife, the former actress Jiang Qing, took a special interest in the performing arts. In China, opera had always been entertainment for the masses (as it was in the United States in the nineteenth century) and not solely for a highly educated audience (as it is in the U.S. today). Madame Mao banned all classical works of performing art. The only works that could be performed were post-1949 “model” pieces of crude communist propaganda. That amounted to five operas, two ballets, and one symphony. In the privacy of her palaces, Madame Mao enjoyed a much broader selection of entertainment, including private screenings of Western movies.

During the Cultural Revolution, simply being educated, or an intellectual, or able to speak a foreign language could be cause enough to be killed, tortured, or put into forced labor.

From about March 1968 to April 1969, even the most mundane conversation had to be centered on Mao. If a peasant walked into a store, the clerk was supposed to say “keep a firm hold on grain and cotton production,” and the peasant would reply “strive for even greater bumper crops.” If the customer was a student, the clerk would say “read Chairman Mao’s books,” and the student would answer “heed Chairman Mao’s words.” As one historian observes, “The Cultural Revolution is perhaps the time in the twentieth century when language was most separated from meaning. . . . If you do not mean what you say, because what you say has no meaning beyond the immediate present, then it is impossible to imbue language with any system of values. . . . This led to the overall moral nullity of the Cultural Revolution during its most manic phase.” Rana Mitter, A Bitter Revolution: China’s Struggle with the Modern World 209 (2004).

Or as George Orwell wrote about a fictional totalitarian government very similar to communism, “The intention was to make speech, and especially speech on any subject not ideologically neutral, as nearly as possible independent of consciousness.” George Orwell, Appendix: The Principles of Newspeak, in 1984 (1990) (1949).

Right to petition the government for redress of grievances

Of course there was no such right in Mao’s China, especially during the Cultural Revolution. Sending the government a critical petition would lead to every signer being imprisoned, tortured, sent to slave labor camp, or executed.

At the beginning of the Cultural Revolution, Wang Rongfen, who was studying German at the Foreign Languages Institute, observed the similarities between Mao’s first Cultural Revolution rally for a crowd at Tiananmen Square and Hitler Nuremberg rallies. She sent Chairman Mao a letter: “the Cultural Revolution is not a mass movement. It is one man with a gun manipulating the people.” He sent her to prison for life. In prison, she was manacled full-time, and the manacles bore points to dig into her flesh. She had to roll on the floor to eat. She was released in 1979, three years after Mao’s death, with her spirit unbroken.

Right of Assembly

The textual right of assembly is related to the implied right of association. As the U.S. Supreme Court has recognized, the right of association is implied by the other First Amendment rights, and is necessary to their exercise.

Under the CCP, no associations could exist except those under government control. No assemblies on political matters were allowed, except those demanded by the government.

But when Premier Zhou Enlai died in January 1976, huge, spontaneous, and unauthorized crowds assembled to mourn him. The crowds considered him relatively less totalitarian and oppressive than Mao. Unlike the Tiananmen rallies of the early Cultural Revolution, which originated from the top down, the crowds that gathered to mourn Zhou expressed people power. “The country had not witnessed such an outpouring of popular sentiment since before the communists came to power in 1949.” Li Zhusui, The Private Life of Chairman Mao 611 (Tai Hung-Chao trans. 1994).

While there were demonstrations at over 200 locations throughout the country, the flashpoint was in Beijing’s Tiananmen Square, which saw the largest spontaneous demonstration ever in China. On April 4, Tomb-Sweeping Day (Qing Ming), a traditional day for honoring one’s ancestors, an immense crowd gathered at the Monument to the People’s Martyrs in Tiananmen Square. Erected in 1959, the monument honored Chinese revolutionary martyrs from 1840 onward.

That night, the Tiananmen assembly was attacked by the Capital Militia Command Post (a/k/a the “Cudgel Corps”). According to one report, it later took hundreds of workers to scrub off all the blood.

“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.” Amendment II.

The Second Amendment ensures that the government will never have a monopoly of force. As Americans knew from recent history in Europe and from ancient history, people who were first disarmed were often tyrannized later.

The Chinese Communist Party was aware of similar lessons of history. In a 1938 speech, Mao explained, “Our principle is that the Party commands the gun, and the gun must never be allowed to command the Party. . . . According to the Marxist theory of the state, the army is the chief component of state power. Whoever wants to seize and retain state power must have a strong army.” Problems of War and Strategy (Nov. 6, 1938).

In 1949, one of the new regime’s “first acts” was “to confiscate weapons.” Jung Chang & Jon Halliday, Mao: The Unknown Story 424 (2005). Homes were inspected to “search for forbidden items, from weapons to radios.” Frank Dikötter, The Tragedy of Liberation: A History of the Chinese Revolution 1945-1957, at 45-46 (2013).

By ensuring that all the people could be armed, the Second Amendment aimed to ensure that the militia would be drawn from all people. If the government were allowed to disarm people, then instead of a general militia of the people, there would be a “select militia” of the government’s favorites and toadies. At the Virginia Convention for ratifying the U.S. Constitution, George Mason had warned that a select militia would “have no fellow-feeling for the people.” (June 14, 1788).

As the U.S. Supreme Court noted, in England, the despotic Stuart kings in the seventeenth century had used “select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Further, said the Court, the Second Amendment was enacted in part to assuage fears that the U.S. government “would disarm the people in order to impose rule through a standing army or select militia.” Id. at 588.

Under Mao, a select militia was the instrument for forcing most of the population into de facto slavery. In the 1958-62 Great Leap Forward, the select militia became the instrument that caused the deaths of over forty million people from famine.

In a nation of over 600 million people, the select militia comprised fewer than 2 percent of the population. Unlike in the American system, militia arms were not personally owned but were usually centrally stored and guarded.

According to a political refugee interviewed in Hong Kong in the 1950s, in a farm commune of 15,000 families, there would be about 1,500 militiamen, chosen from the politically correct, who would have rifles. Of these there was “a further selection of 150 super-reliable men whose rifles are always loaded.” Suzanne Labin, The Anthill: The Human Condition in Communist China 104 (Edward Fitzgerald trans., Praeger 1960) (1st pub. in France as La Condition Humaine en Chine Communiste (1959)). “Otherwise ammunition is kept at a central armoury guarded day and night by special police armed with machine-guns. As an extra precaution the personnel of this guard is changed every two months.” Id. A hundred and fifty always-armed males could control 15,000 families.

“They would turn out to be crucial in enforcing discipline, not only during the frenzy to establish communes, but throughout the years of famine that lay ahead.” Frank Dikötter, Mao’s Great Famine: The History of China’s Most Devastating Catastrophe, 1958-1962, at 182 (2010). “[L]ocal militia were a critical ingredient in the CCP’s consolidation of power in the countryside.” Elizabeth J. Perry, Patrolling the Revolution: Worker Militias, Citizenship, and the Modern Chinese State 182 (2007).

“The militia movement and a small corps of trained fighters brought military organization to every commune. All over China farmers were roused from sleep at dawn at the sound of a bugle and filed into the canteen for a quick bowl of watery rice gruel. Whistles were blown to gather the workforce, which moved in military step to the fields. . . . Party activists, local cadres and the militia enforced discipline, sometimes punishing underachievers with beatings.”

Dikötter, Famine, at 50. “Militiamen spearheaded the countless mobilization campaigns that were the hallmark of Mao’s rule. They enforced universal participation by all members of the factory or village, dragged out or designated targets of struggle [persons targeted for persecution], and monitored mass meetings.” Perry, at 191.

A case study of the remote village of Da Fo, located on the North China Plain, details the operation of the select militia. There, guns had been confiscated in 1951 (later than the general confiscation in 1949, perhaps because of the village’s isolation). Over the course of the war against the Japanese invasion and then the final phase of the civil war (1945-49), the high-quality leaders of the Da Fo communist militia had been moved elsewhere, to positions of greater responsibility. The militiamen left behind were the dregs of society. “Villagers remember them as poorly endowed, uneducated, quick-tempered, perfidious hustlers and ruffians who more often than not operated in an arbitrary and brutal political manner in the name of the Communist Party.” Ralph A. Thaxton, Jr., Catastrophe and Contention in Rural China: Mao’s Great Leap Forward: Famine and the Origins of Righteous Resistance in Da Fo Village 329 (2008).

There were no rules against them exploiting or coercing peasants. To the extent that the national government provided subsidies, the militia took them. The Da Fo militia had 30 guns and kept the crop fields under a four-man armed guard day and night, to prevent peasants from obtaining food.

“The militia was a repressive institution, and Mao needed it to press the countless rural dwellers who were resisting disentitlement by the agents of the people’s commune.” Id. “These men were practically the perfect candidates to tear apart civil society and destroy human purpose. . . . [T]hey had a lot in common with the Khmer Rouge in Cambodia, with Ceauşescu’s militias in Transylvania, and with the Janjaweed in the Darfur region of Sudan. In rural China of the late 1950s, as in these other killing field environments, such men were backed by state power.” Id. at 330.

The militia and the communist party cadres carried large sticks they used to beat the peasants. The frontline enforcers were under orders from their superiors to administer frequent beatings, and those who failed to do so were punished. “A vicious circle of repression was created, as ever more relentless beatings were required to get the starving to perform whatever tasks were assigned to them.” Dikötter, Famine, at 299.

Without the select militia, “surely the famine’s death rate would not have been so high.” Thaxton, at 331. Because of the select militia, peasants suffered “socialist colonization, subhuman forms of labor, and starvation.” Id. at 334.


The Chinese Communist army invaded eastern Tibet in 1949 and central Tibet in 1951. At first, they ruled relatively mildly, while they worked hard at building a transportation infrastructure for permanent military occupation. But in 1956, the Chinese announced gun registration, which the Tibetans accurately foresaw as a step towards gun confiscation. In 1957, the CCP demanded that Tibetans surrender all their firearms.

Tibet was a universally armed nation. Every man was expected to have a firearm and be proficient with it. The Tibetan Buddhist monasteries had large arsenals. Even the poorest beggar would at least have a large knife.

As the Dalai Lama later recalled, when he heard about the gun confiscation order, “I knew without being told that a Khamba [Eastern Tibetan] would never surrender his rifle — he would use it first.” Roger Hicks & Ngakpa Chogyam, Great Ocean 102 (1984) (authorized biography).

The historically fractious Tibetan tribes united in a national resistance movement, the Chushi Gangdruk. For a while, they drove the Chinese out of most of Tibet, and liberated hundreds of thousands of square miles.

Yet although the Tibetan volunteers were, man-for-man, vastly superior fighters to the Chinese conscripts, the Chinese eventually wore down the Tibetan resistance through sheer force of numbers, just as centuries before barbarians in Europe had overwhelmed the Roman Empire’s legions.

The Tibetan resistance movement did make it possible for 80,000 Tibetans, including the Dalai Lama, to escape to India and Nepal, where they have kept the Tibetan Buddhist religion alive, free of CCP domination, and have continued to inform the world about the CCP’s colonialism and genocide in Tibet.

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Amendment III.

Unlike some of the bad monarchs in England and France, Mao did not force families to let soldiers live in their homes. Rather, Mao forced people to live in soldiers’ homes, as prisoners under constant armed guard.

Starting in the Great Leap Forward, the government seized all farmland and forced people into communal labor. In many communes, families had to leave their homes, live in sex-segregated barracks, and eat in mess halls. Husbands and wives were allowed one short conjugal visit per week. This was consistent with Marxism, which boldly demanded “Abolition of the family!” Karl Marx, Communist Manifesto 24 (Samuel Moore & Friedrich Engels trans. 1888) (1848).

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Amendment IV.

Starting in 1955-56, the CCP ordered that people allow home inspections at any time. This was part of a household registration system that also required people to reside in the registered place permanently, unless they were given government permission to move. People could travel only when issued a permit, had to register when staying somewhere else overnight, had to register their own house guests, and had to report on the content of conversations with guests.

All postal mail could be secretly opened by the government, its contents recorded in the government’s secret files on every person, to accumulate material for potential later use against the writer.

During the Cultural Revolution, Mao’s mobs, the “Red Guards,” searched house-to-house for concealed arms, books, religious items, gold coins, and evidence of disloyalty. If something was found, the victims were tortured. “Every night there were terrifying sounds of loud knocks on the door, objects breaking, students shouting and children crying. But most ordinary people had no idea when the Red Guards would appear, and what harmless possessions might be seen as suspicious. They lived in fear.” Frank Dikötter, The Cultural Revolution: A People’s History, 1962-1976, at 86-90 (2016). Many people pre-emptively destroyed their books and artwork, lest the Red Guards discover them. Ordinary thieves posed as Red Guards to get in on the looting.

“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” Amendment V.

The prohibition of “double jeopardy” means that if a person is tried for alleged crime and acquitted, the government cannot prosecute the same person a second time for the same offense. This was irrelevant under Mao, since persons who were accused were always convicted the first time.

While the Fifth Amendment forbids compelled self-incrimination, self-incrimination was mandatory under Mao. If an arrested person did not confess to whatever crimes she was accused of, she would be tortured until she did.

The Takings Clause means that government must pay compensation when it takes a person’s property. But under Mao, property could be taken at any time. Some people had no property at all. For example, starting with the Great Leap Forward in 1958, the peasants forced to live in barracks on the collective farms were not allowed to own even a spoon.

The communists had won the revolution in part because they had promised to give land to the peasants. The communists did so in the years immediately after the revolution. Then starting in 1958, the land was taken by the government. The peasants were turned into serfs—forbidden to leave the land and forced to labor under armed guard to produce crops, most of which the government would take without compensation.

In the Cultural Revolution, Mao’s rage mobs roamed the streets, attacking women for bourgeoise behavior such as wearing dresses or having long hair. Poor street peddlers, barbers, tailors, and anyone else participating in the non-state economy were attacked and destroyed. Many of them were ruined and became destitute.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment VIII.

The system of bail allows a person who has been arrested for crime to be released from jail pending trial, if the person posts a bond to ensure that he will appear in court for trial. Under communism, once a person is arrested, the person may simply “disappear,” never to be seen in public again.

While the Eighth Amendment prohibits torture, torture was a common tool of the Mao regime. Soon after the communists seized power in 1949, their “land reform” program encouraged peasants to torture and then kill small farmers and landlords. If Mao decided that a high-ranking official was now an enemy, he would have the official tortured in front of an assembly of the communist elite.

In the Cultural Revolution, Mao’s rage mobs roamed the streets with leather belts with brass buckles, which they used to beat their targets senseless, often inflicting severe injury. Sometimes the victims were forced to lick their blood up from the street. Any pedestrian could be accosted by Red Guards, ordered to recite quotations from Chairman Mao, and then tortured on the spot for not having memorized enough of them.

The Cultural Revolution also brought a savage campaign of genocide and torture of the minority Mongol population, living in north-central China. Ethnic minorities in other border regions received similar treatment.

A new round of purges began in 1969 and ran through 1971, based on a supposed “May Sixteenth” conspiracy from 1966. This was the date that a circular had announced the creation of the Central Cultural Revolution Group, which would publicly unleash the Cultural Revolution several days later. Supposedly, May 16 was also the debut of a secret plot against Premier Zhou Enlai. Although Zhou was himself a member of the Central Cultural Revolution Group, there were others in the group, including Mao’s wife, who hated him and plotted against him. Whatever the intrigue at the top, the persecution of “May Sixteenth elements” did not target Madame Mao but instead large numbers of people who had no plausible connection to any conspiracy; they were tortured into confessing to having joined a conspiracy that they had never heard of before they were arrested.

Meanwhile, in rural areas, where the Cultural Revolution was less intense, the local militias, aware of all the killing and torture going on in the towns and cities, decided to demonstrate their loyalty by going on their own spontaneous murder and torture sprees.

The victims were not participants in Cultural Revolution politics. Rather, the targets were the “Four Types”—who since 1949 had always been easy targets for attack. These included former landlords, anyone who had owned a small business before the revolution, anyone who was claimed to be a noncommunist, and any “bad element” who had supposedly deviated from the CCP orthodoxy of the moment.

Victims were typically denounced in public show trials that everyone in the village had to attend. Some victims were executed in plain sight to spread terror. Execution methods involved firearms, beating and torturing people to death (always common under Mao), or imaginative procedures, such as marching victims off a cliff.

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Amendment IX.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Amendment X.

The U.S. constitutional system is based on the sovereignty of the people. The people delegate some powers to the federal government, via the Constitution. The Ninth Amendment makes it clear that the Bill of Rights is not an exclusive list of the people’s retained rights. The Tenth Amendment affirms that the people and their state governments retain all powers that were not delegated to the federal government.

Under communism, the people have no “retained” rights or “reserved” powers. The omnipotent sovereign is the communist party. Under Maoism, the only purpose of human existence was to serve Mao.

Dave Kopel is Research Director of the Independence Institute; an Adjunct Scholar with the Cato Institute, in Washington; and adjunct Professor of Constitutional Law at the University of Denver’s  Sturm College of Law. His website is He is a regular panelist on Colorado Public Television’s “Colorado Inside Out” and a columnist for the Reason magazine on the Volokh Conspiracy law blog.

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During the first six decades of the eighteenth century, the American colonies were mostly allowed to govern themselves. In exchange, they loyally fought for Great Britain in imperial wars against the French and Spanish. But in 1763, after the British and Americans won the French and Indian War, King George III began working to eliminate American self-government. The succeeding years saw a series of political crises provoked by the king and parliament. What turned the political dispute into a war was arms confiscation at Lexington and Concord, Massachusetts, on April 19, 1775.

In 1774, the British government had realized that because armed Americans were so numerous, they could not be frightened into compliance with British demands. So in the latter months of 1774, the King and his Royal Governors in America instituted a gun control program. All firearms and ammunition imports to the American colonies were forbidden. At the governors’ command, British soldiers began raiding American armories, which stored firearms for militiamen who could not afford their own, and also held large quantities of gunpowder. Because the raids were accomplished peacefully in surprise pre-dawn maneuvers, they caused outrage, but nothing more. Both sides knew that if the British attempted to seize arms by force, the Americans would fight.

Ever since 1768, Boston had been occupied by a British army. In April 1775, a spy informed British General Gage that the Americans had secreted a large quantity of gunpowder in Concord, Massachusetts. Gage ordered his army to seize the American powder. This time, the Americans found out in advance.

On the night of April 18, 1775, British warships conveyed Redcoats across Boston Harbor, so they could march to Concord. Meanwhile, Paul Revere and William Dawes rode from town to town, shouting the warning “The British are coming.” The alarm was spread far and wide by the ringing of church bells and firing of guns.

To get to Concord, the British would have to march through Lexington; while the men of Lexington prepared to meet the British, the women of Lexington assembled ammunition cartridges late into the night.

The American Revolution began at dawn on April 19, 1775, when 700 Redcoats commanded by Major John Pitcairn confronted 200 Lexington militia on the town green. The militiamen, consisting of almost all able-bodied men sixteen to sixty, supplied their own firearms, although a few poor men had to borrow a gun.

“Disperse you Rebels—Damn you, throw down your Arms and disperse!” ordered Major Pitcairn. American folklore remembers the perhaps apocryphal words of militia commander Captain John Parker: “Don’t fire unless fired upon! But if they want to have a war, let it begin here!” The American policy was to put the onus of firing first on the British. Yet someone pulled a trigger, and although the gun did not go off, the sight of the powder flash in the firing pan instantly prompted the Redcoats to mass fire. The Americans were quickly routed.

With a “huzzah” of victory, the Redcoats marched on to Concord. By one account, the first man in Concord to assemble after the sounding of the alarm was the Reverend William Emerson, gun in hand.

At Concord’s North Bridge, the town militia met with some of the British army, and after a battle of two or three minutes, drove off the Redcoats. As the Reverend’s grandson, poet Ralph Waldo Emerson, later recounted in the “Concord Hymn”:

By the rude bridge that arched the flood,

Their flag to April’s breeze unfurled,

Here once the embattled farmers stood,

And fired the shot heard round the world.

Notwithstanding the setback at the bridge, the Redcoats had sufficient force to search the town for arms and ammunition. But the main powder stores at Concord had been hauled to safety before the British arrived.

Having failed to get the gunpowder, the British began to withdraw back to Boston. On the way, things got much worse for them as armed Americans swarmed in from nearby towns. Soon they outnumbered the British two-to-one.

Some armed American women fought in the battle. So did men of color, including David Lamson, leading a group of elderly men who, like him, were too old to be in the militia, but intended to fight anyway.

Although some Americans cohered in militia units, many just fought on their own, taking sniper positions wherever the opportunity presented itself.

Rather than fight in open fields, like European soldiers, the Americans hid behind natural barriers, fired from ambush positions, and harried the Redcoats all the way back to Boston.

One British officer complained that the Americans acted like “rascals” and fought as “concealed villains” with “the cowardly disposition . . . to murder us all.” Another officer reported: “These fellows were generally good marksmen, and many of them used long guns made for Duck-Shooting.”

The British expedition was nearly wiped out. It saved from annihilation by reinforcements from Boston—and by the fact that the Americans started running out of ammunition and gunpowder.

British Lieutenant-General Hugh Percy, who had led the rescue of the beleaguered expeditionary force, recounted:

“Whoever looks upon them as an irregular mob, will find himself much mistaken. They have men amongst them who know very well what they are about, having been employed as Rangers [against] the Indians & Canadians, & this country being much [covered with] wood, and hilly, is very advantageous for their method of fighting. Nor are several of their men void of a spirit of enthusiasm, as we experienced yesterday, for many of them concealed themselves in houses, & advanced within [ten yards] to fire at me & other officers, tho’ they were morally certain of being put to death themselves in an instant.”

At day’s end, there were 50 Americans killed, 39 wounded, and 5 missing. Among the British 65 were killed, 180 wounded, and 27 missing. On a per-shot basis, the Americans inflicted higher casualties than the British regulars.

That night, the Americans began laying siege to Boston where General Gage’s standing army was located. Soon, the British would begin confiscating guns in Boston. Reinforced by volunteers from other colonies, and commanded by General George Washington, the American forces would maintain the siege of Boston until the British gave up and sailed away on March 17, 1776.

Further reading: David B. Kopel, How the British Gun Control Program Precipitated the American Revolution, 38 Charleston Law Review 283 (2012).

David B. Kopel is adjunct professor of constitutional law at the University of Denver, Sturm College of Law.

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The 1876 Colorado Constitution contains the strongest declaration of state’s rights of any American constitution: “The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state.” (Colo. Const., art. II, § 2). The powerful affirmation of the people’s right to govern themselves arose from the conditions of early Colorado and has shaped Colorado ever since.

In modern times, Coloradoan’s right of self-governance has been vigorously exercised, such as by the 1992 citizen initiative adding the Taxpayer’s Bill of Rights (TABOR) to the Colorado Constitution. The strictest tax and expenditure limit in the nation, TABOR requires voter approval for all increases in taxes, and all government spending increases greater than inflation plus population growth.

Back in 1972, big business and big government teamed up to procure the 1976 Winter Olympics for Colorado. But Coloradoans were leery of anything that would promote the state’s already rapid growth. And they did not want their money being used to fund the already-rich International Olympic Committee. So Coloradoans passed a constitutional amendment by voter initiative, forbidding all taxpayer funding for the 1976 Olympics. As a result, the 1976 Winter Olympics were instead held in Innsbruck, Austria, which already had the necessary facilities, having hosted the 1964 Winter Olympics.

In the twenty-first century, the voters of Colorado adopted constitutional amendments for the regulated sale of medical marijuana (2000) and adult use marijuana (2012). In essence, the voters ordered state government officials to conspire to violate the federal Controlled Substances Act by setting up government-supervised systems for the distribution of marijuana. Given total quantities involved in this “conspiracy” (tons of marijuana, and many millions of dollars), the Colorado government officials have, arguably, been committing federal felonies that qualify them as drug “kingpins,” subject to very severe mandatory sentences.

Yet consistent with the “sole and exclusive right” of Coloradans to govern themselves, state executive branch officials and the Colorado General Assembly have obeyed the Colorado Constitution, and created a carefully controlled, highly taxed, government-supervised system for the production and retail sale of marijuana. “Sole and exclusive” indeed.

As a practical matter, Coloradoans in the State’s founding era had no choice but to be their own “sole and exclusive” governors. While there had been mountain men and a few trading posts in Colorado since the early 19th century, substantial American settlement of Colorado did not begin until the discovery of gold in 1858. By 1859, a rush of settlers had created the towns of Denver and Colorado City (today, Colorado Springs), as well as mining camps in the nearby mountains.

Formally, the land that would become the State of Colorado was part of four territories: Kansas (whose population center was in eastern Kansas), Utah (Salt Lake City), New Mexico (Santa Fe), and Nebraska (Omaha). The Colorado settlements were in the far west of the Kansas Territory, near or in the Front Range of the Rocky Mountains.

But the territorial government of Kansas had little influence in Colorado. It was busy with conflict in eastern Kansas between pro‑slavery and anti‑slavery forces. There was a Kansas judge for Colorado, but he never went to Colorado. None of the territorial governments could do much to assist remote Colorado. The settlers were on their own.

The first Colorado governments were created by the people themselves, as “miner’s districts” in the mining regions, as “claims clubs” in farming areas, and as “town companies.” These voluntary associations recorded and certified property ownership, provided courts for settling disputes, and organized vigilance committees for law enforcement. Some towns elected their own legislatures. They created “people’s courts” for criminal prosecutions. The decisions of the miner’s districts were later ratified in the first session of the territorial legislature. They were also approved by the Colorado Territorial Supreme Court. By accepting and integrating the decisions of the ad hoc miners’ courts and other early bodies, the developing territorial courts provided continuity of law.

Early Colorado never devolved into the anarchy that had characterized California in its own early gold rush years. Because about thirty percent of Colorado’s miners had experience in California, they understood the importance of creating effective local self-government immediately. Thus, the miners’ districts were quickly established. Experienced code writers traveled from town to town, helping to create local law.

Defying the nominal authority of the Kansas territorial government, the settlers in September and October 1859 created their own ad hoc government for what they called the “Territory of Jefferson.” Provisional Governor Robert Steele addressed the opening of the Jefferson legislature on November 7, 1859. He explained that the people had been denied protection of life and property; being sovereign, they had taken measures for their security.

As of 1860, Denver had five competing court systems. Meanwhile, “the mountain counties stood by their Miner’s courts, and as much of the Provisional Government as suited them.” W.B. Vickers, “Territorial Organization,” in Legislative, Historical and Biographical Compendium of Colorado (Denver, C.F. Coleman’s Publ’g House 1887), p. 145. Other Coloradans created judicial districts for what they called “Idaho Territory.”

In short, there were multiple governments in Colorado with alleged jurisdiction, and in fact the people of Colorado entirely governed themselves:

“Side by side sat the Idaho “central judicial” officers, the provisional government of Jefferson, the Kansas county officials, the Denver people’s government, scores of miners’ courts, and local governments and vigilante committees. Never had frontier democracy blossomed so vigorously. With popular sovereignty in the saddle, the northern part of Bent’s old empire was already a far cry from the tradition‑bound and caste‑conscious territory of New Mexico. A new kind of democratic, middle‑class, commercial‑minded frontier had arrived on the borders of the Spanish Southwest.”

Howard Roberts Lamar, The Far Southwest 1846–1912: A Territorial History (rev. ed. 2000), pp. 187–88.

As Territorial Secretary Frank Hall later wrote, they were “a free and radically independent people.” 1 Frank Hall, History of the State of Colorado (vol. 1, 1889), p. 369.

The survival of the Colorado Territory was in constant peril. In 1861, as the Civil War began, a Confederate invasion launched from Texas and swept far into New Mexico. The Texans were turned back by Colorado volunteer militia at the Battle of Glorieta Pass, near Santa Fe, in February 1862, a battle known as “the Gettysburg of the West.”

Not long after, and for years to come, Indian wars threatened to wipe out the Colorado settlers.

Three trails led to the Colorado settlements: in the southeast, a branch of the Santa Fe Trail; in the center, the Smoky Hill Trail, from Fort Leavenworth, Kansas, to Denver; and in the north, the South Platte Trail, which traversed Nebraska and then dropped down to Denver. Goods were transported in wagons drawn by oxen or mules.

The white settlers, clustered along the Front Range and in mining towns, could not survive a cutoff of their trade routes with the States. The territory was not self‑sufficient in food, and imports were essential for survival. Not long after the Civil War began, the Smoky Hill Trail and the Santa Fe Trail became too dangerous to use. Federal troops there were sent east, leaving travelers vulnerable to Confederate guerillas and to Indians in the river valleys. The South Platte Trail was the only lifeline connecting Colorado to the States.

The Colorado War began in April 1864, led by the Cheyenne Dog Soldiers—the tribe’s leading military society. In alliance with the Arapahoe, Sioux, Kiowa, Comanche, and Apache, they shut down the South Platte Trail and all other trails. Food prices soared, mail and telegraph communication were cut off, and starvation threatened. When the Governors of Kansas and Colorado asked for federal troops, they were told by the federal commander of the Trans‑Mississippi Theater, General Samuel R. Curtis, “We have none to spare, you must protect yourselves.” Hall, p. 328. For the remainder of the decade, Colorado’s survival was precarious.

In 1861 and 1864, Coloradoans had voted against seeking statehood. Since the federal government bore the cost of administering the territory, Coloradoans would not have to tax themselves to pay for government. Although the thrifty attitude has endured to the present, by the early 1870s the territorial governors appointed from Washington, D.C., had become so corrupt at to be unbearable to the people of Colorado. So they began to seek statehood.

Congress passed the Colorado Enabling Act on March 3, 1875, the final day of the congressional session. President Grant immediately signed it, having called for Colorado’s admission in his December 1873 written message to Congress.

The Colorado Constitutional Convention convened on December 20, 1875. The Convention finished its work by unanimously adopting a proposed constitution on March 14, 1876.

On most issues, including the Bill of Rights, partisan divisions were not important. On issues where there was controversy—such as votes for women or whether to acknowledge the deity in the preamble—the divisions did not break down along party lines.

The fundamental problem for the Convention to solve was not a partisan one. Rather, it was the inherent tension in what the delegates wanted. They knew they did not want a “do nothing” government. To the contrary, their constitution ordered the creation of state institutions for higher education, for care for the insane, and for the blind, deaf, and mute. The delegates required the establishment of “a thorough and uniform system of free public schools,” and that such schools not be racially segregated. The Framers created a commissioner of mines, and ordered the general assembly to enact laws prohibiting child labor in mines, and to enact laws for safe working conditions in the state’s most important industry. The Convention wrote the first American constitution to mention forests, instructing the general assembly to “enact laws in order to prevent the destruction of, and to keep in good preservation, the forests upon the lands of the state.” This was an early manifestation of the Colorado ethos of conservation.

The new constitution further provided that the general assembly “shall” enact “liberal homestead and exemption laws,” “shall” pass arbitration laws, and “shall” enact laws against “spurious, poisonous or drugged spirituous liquors.”

Yet while the Convention had a list of things it mandated the legislature to do, at the same time, the Convention profoundly distrusted the legislature. In the words of one scholar, “The delegates created a legislature and then, as though they regretted their work, they took most discretionary authority from it.” Donald Wayne Hensel, A History of the Colorado Constitution in the Nineteenth Century (Aug. 9, 1957) (unpublished Ph.D. dissertation, University of Colorado), p. 133.

The 1876 Convention was meeting in “the post-Civil War era, when popular distrust of legislatures was at its height.” G. Alan Tarr, Understanding State Constitutions (1998), p. 199. The Colorado Constitution went especially far to hem in the government, with the longest state constitution up to that point in American history. As amended, the Colorado Constitution remains the one of the longest, reflective to Coloradans’ inclination to instruct their government exactly what it should do and cannot do.

Article V, creating the Colorado House of Representatives and Senate, is much longer than Article I of the U.S. Constitution, which creates the Congress. Article V contains many procedural restrictions on the process of enacting legislation. In addition, legislative sessions were limited to forty days, with no legislative sessions in even-numbered years. A variety of constitutional provisions outlaw taxing, spending, or borrowing on behalf of corporations or other private interests. Later, the first constraints on the legislature would be bolstered by amendments, adopted by the people.

The people of the Colorado Territory adopted the Colorado Constitution on July 1, 1876: 15,443 in favor and 4,052 opposed.

Colorado’s Fourth of July celebrations in 1876 may have been the most exuberant in the nation. A large parade in Denver was led by the Colorado militia, with officers on white horses and the troops on black ones. Each of the thirty-eight states was honored with its own float. On August 1, 1876, President Ulysses Grant issued the proclamation making Colorado the thirty-eighth state.

David B. Kopel is adjunct professor of constitutional law at the University of Denver, Sturm College of Law. This essay is adapted from his article The Right to Arms in Nineteenth Century Colorado, 95 Denver University Law Review 329 (2018).

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During the 1972 election, incumbent Republican President Richard Nixon won an astoundingly large margin, garnering 520 electoral votes. Despite his huge advantages during the election, President Nixon and his campaign operatives engaged in unethical and illegal activities during the campaign. The ultimate victim of Nixon’s crimes turned out to be Nixon himself, as he was forced to resign in 1974 after his misdeeds were uncovered. The unraveling of Nixon’s criminal conspiracies led to reforms for good government.

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Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Amendment II

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.

Like most of the Bill of Rights, the Second Amendment was part of a conciliatory program by the Federalists, as promised by James Madison at the Virginia ratifying convention. For the most part, the Bill of Rights consisted of assurances that the new federal government could not do things which the Federalists never wanted to do anyway, and which the Federalists believed were not within the powers which had been granted to the new government.

For example, the Federalists had no wish to establish a national religion, and they believed that Congress’s enumerated powers (e.g., to establish post offices, to regulate interstate commerce) could not possibly be construed so as to give Congress the power to establish a religion. Accordingly, Madison and the other Federalists were perfectly happy to add a constitutional amendment plainly stating that Congress could not establish a religion.

The Second Amendment was of a similar character. Based on knowledge of history from ancient times to the present, the Federalists and the Anti-Federalists agreed that disarmament was a direct path to slavery. Indeed, the heavy-handed English government of King George III had precipitated the American Revolution through an aggressive gun control program in 1774-76: embargoing the import of guns and gunpowder by the American colonies, confiscating the guns and gunpowder which some towns stored in central repositories (the repositories kept guns for militiamen who could not afford their own gun, and provided merchants a place to keep reserve quantities of gunpowder in a fireproof building), putting Boston under military occupation and confiscating the firearms of the Bostonians, using the military to conduct house-to-house searches for firearms at Lexington and Concord, and then naval bombardment and destruction of coastal New England towns which refused to surrender all their arms.

Accordingly, the Second Amendment’s assurance that the federal government could never disarm the people was uncontroversial.

Where Madison had refused to budge was on the subject of federal powers over the militia. The original Constitution, in clauses 15-16 of Article I, section 8, had given Congress broad authority to summon the militia into federal service, and to provide for the organization, arming, and disciplining of the militia. At the state ratifying conventions, Anti-Federalists had strongly objected to these new federal powers. But Madison refused to limit federal militia powers, just as he refused all other proposals to constrict the federal powers granted by the new Constitution.

When U.S. Representative James Madison introduced his proposed Bill of Rights into the first session of the United States House of Representatives in 1789, he proposed that the right to arms language be inserted into Article I, Section 9, after Clause 3. Clauses 2 and 3 protect individuals against suspension of the writ of habeas corpus, bills of attainder, and ex post facto laws. Madison also suggested that what were to become the First, Third, Fourth, Eighth, and Ninth Amendments, portions of the Fifth Amendment (double jeopardy, self-incrimination, due process, just compensation), and portions of the Sixth Amendment (speedy public trial, right to confront witnesses, right to be informed of charges, right to favorable witnesses, right to counsel) also be inserted there.

Madison proposed that the remainder of the Fifth (grand jury), Sixth (jury trial, in the form of a declaration that “trial by jury as one of the best securities to the rights of the people, ought to remain inviolate”), and the Seventh Amendment (civil jury trial) be inserted into Article III, which deals with the judiciary. He recommended that what would become the Tenth Amendment be inserted as a new article between Articles VI and VII. His proposed limitation on congressional pay raises was to be inserted into Article I, Section 6, which governs congressional pay. (This was eventually ratified as the Twenty-seventh Amendment in 1992.)

If Madison had seen the proposed Second Amendment as a limitation on federal militia powers, then he would have placed the Amendment in the part of the Constitution which defines federal militia powers. (Article I, § 8, clauses 15-16.) Instead, he placed the proposed language in the portion of the original Constitution which guaranteed individual rights.

However, the House objected that interpolating changes into the original Constitution would imply that the original Constitution had been defective. So Madison’s changes were eventually appended to the Constitution, as amendments following the main text.

For the speech introducing the Bill of Rights into the House of Representatives, Madison’s notes contain the following: “They relate first to private rights—fallacy on both sides—espec as to English Decln. Of Rights—1. mere act of parl[iamen]t. 2. no freedom of press—Conscience…attaineders—arms to protest[an]ts.” James Madison, “Notes for Speech in Congress Supporting Amendments,” June 8, 1789, in 12 Madison Papers 193-94 (Robert Rutland ed., 1979) (bracketed letters not in original).

The English Declaration of Rights, enacted by Parliament in 1689, had declared that “The subjects which are protestants may have arms for their defence suitable to their conditions as and allowed by law.”

So Madison believed that the English Declaration of Rights was defective because it was a mere act of Parliament, and thus could be over-ridden by a future Parliament. Further, the English Declaration of Rights did not go far enough, in part because its arms guarantee protected only Protestants (98% of the English population at the time).

As introduced by Madison, the Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

After approval by the House, the Second Amendment was considered by the Senate. The Senate (1) removed the religiously scrupulous clause and the phrase “composed of the body of the people,” (2) replaced “the best” with “necessary to the,” and (3) rejected a proposal to add the words “for the common defence” after “the right of the people to keep and bear arms.” 1 Journal of the First Session of the Senate 71, 77 (1820).

The rejection of the “common defence” language made it clear that the Second Amendment right to arms was not solely for militia service.

The middle clause, about a well-regulated militia, was moved so that it became the introductory clause. As enacted, the Second Amendment had a form typical in state constitutions of 18th and 19th centuries: an introductory, purpose clause announced an important political principle, and then an operative clause declared the legal rule.

For example, Rhode Island’s 1842 Constitution declared: “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .” Eugene Volokh, “The Commonplace Second Amendment,” 73 NYU Law Review 793 (1998).

The right which is guaranteed in the operative clause is not limited by the purpose clause. In Rhode Island, the purpose clause refers to “the press,” but the operative clause protects the speech rights of “any person,” not just journalists. Likewise, the Second Amendment right does not belong only to the militia; it belongs to “the People,” just as the First Amendment right to assemble and the Fourth Amendment right to freedom from unreasonable searches and seizures, are rights of “the People,” and therefore rights belonging to all individual Americans.

Tench Coxe, a political ally of Madison who would later serve in Madison’s sub-cabinet, penned the most comprehensive section-by-section exposition on the Bill of Rights published during its ratification period. Regarding Madison’s proposed right to arms amendment, Coxe wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” Federal Gazette, June 18, 1789, p. 2.

After Coxe, the best evidence of the original public meaning of the Second Amendment comes from the most influential and widely used legal treatise of the early Republic, the five-volume, 1803 American edition of William Blackstone’s Commentaries on the Common Law of England, edited and annotated by the Virginia jurist St. George Tucker (1752-1827). Tucker was a militia colonel during the Revolutionary War, a Virginia Court of Appeals judge, a federal district judge, and professor of law at the College of William & Mary. Regarding the Second Amendment, Tucker’s 1803 treatise was essentially verbatim from his 1791-92 lecture notes at the College of William & Mary, almost immediately after the Second Amendment had been ratified.

Tucker’s Blackstone was not merely a reproduction of the famous English text. It contained numerous annotations and other material suggesting that the English legal tradition had undergone development in its transmission across the Atlantic, generally in the direction of greater individual liberty. Tucker’s treatment of Blackstone’s discussion of the right to arms was typical. According to Tucker: “The right of the people to keep and bear arms shall not be infringed. Amendments to [Constitution], and this without any qualification as to their condition or degree, as is the case in the British government.” St. George Tucker, 1 Blackstone’s Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia 143-44 (1803) (reprinted 1996 by The Lawbook Exchange).

Tucker’s Blackstone also included a lengthy appendix on the new American constitution. This appendix was the first scholarly treatise on American constitutional law and has been frequently relied upon by the United States Supreme Court and scholars. Tucker’s primary treatment of the Second Amendment appeared in the appendix’s discussion of the Bill of Rights:

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.

. . .This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Appendix to Vol. 1, Part D, p. 300.

Tucker’s appendix also mentioned the right to arms in the context of Congressional power over the militia. Noting that the Constitution gives Congress the power of organizing, arming, and disciplining the militia, while reserving to the states the power to train the militia and appoint its officers, Tucker asked whether the states could act to arm and organize the militia if Congress did not. He argued that the language of the Second Amendment supported the states’ claim to concurrent authority over the militia:

The objects of [the Militia Clauses in Article I] of the constitution, . . . were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; “that each state respectively should have the power to provide for organizing, arming, and disciplining it’s own militia, whenever congress should neglect to provide for the same.” . . . [A]ll room for doubt, or uneasiness upon the subject, seems to be completely removed, by the [second] article of amendments to the constitution, since ratified, viz. ‘That a militia [sic] being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed.’ To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government.

Id., pp. 272-73.

Tucker’s treatise was studded with other references to the right to arms. For example, Tucker contended that Congress’s power to enact statutes that are “necessary and proper” for carrying into effect its other enumerated powers, U.S. Const. art. I, sec. 10, cl. 8, did not include the power to make laws that violated important individual liberties. Such laws could not be deemed “necessary and proper” in the constitutional sense, argued Tucker; therefore, they were invalid and could be struck down by a federal court. Tucker chose as an illustration a hypothetical law prohibiting the bearing of arms:

If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of those means.

Id., p. 289.

Similarly, Tucker observed that the English law of treason applied a rebuttable presumption that a gathering of men was motivated by treason and insurrection, if weapons were present at the gathering. Tucker, however, was skeptical that the simple fact of being armed “ought … of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself.” Vol. 5 Appendix, at 9, note B. He added: “In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Id. For more on Tucker and the Second Amendment, see David T. Hardy, “The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights,” 103 Northwestern University Law Review Colloquy 1527 (2009); Stephen P. Halbrook, “St. George Tucker’s Second Amendment: Deconstructing the True Palladium of Liberty,” 3 Tennessee Journal of Law & Policy 114 (2007).

From Madison, Coxe, and Tucker to the present, the large majority of Americans have always understood the Second Amendment as guaranteeing a right to own and carry guns for all legitimate purposes.

This view was re-affirmed after the Civil War. Specifically invoking the “the constitutional right to bear arms,” Congress enacted the Second Freedmen’s Bureau Bill to stop the South from interfering with gun ownership and carrying by the former slaves. Similarly, the Fourteenth Amendment was passed by Congress, and ratified by the states, for, among other things, preventing the Southern states from interfering with the Second Amendment rights of the Freedmen to keep and bear arms to defend themselves against the Ku Klux Klan and similar racial terrorists. , Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Oakland: Independent Institute, 2010).

The U.S. Supreme Court relied on this original meaning in the 2010 case McDonald v. Chicago, holding that the Fourteenth Amendment prohibits state and local governments from infringing Second Amendment rights.

During part of the 20th century, a theory was created that the Second Amendment was not an individual right, but was instead a “state’s right” or a “collective right.” Although lacking in historical support, these anti-individual theories were for a time popular among some elites. However, in District of Columbia v. Heller (2008), all nine Justices of the Supreme Court agreed that non-individual interpretations of the Second Amendment were supported neither by history nor by the Court’s precedents.

The Heller Court split 5-4 on whether the individual right was only for militia purposes (the four dissenters led by Justice Stevens) or was for all legitimate purposes (the five-Justice majority led by Justice Scalia). The majority result had strong support not only in the original meaning of the Second Amendment, but also in more than two centuries of history and evolving tradition of the Second Amendment, in which the American people had repeatedly affirmed the right to own and carry firearms for personal defense, hunting, and all other legitimate purposes. David B. Kopel, “The Right to Arms in the Living Constitution,” 2010 Cardozo Law Review de Novo 99.

David B. Kopel is Research Director of the Independence Institute, a think tank in Golden, Colorado. He is also adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law; and an Associate Policy Analyst at the Cato Institute, in Washington, D.C. He is the author of 12 books and over 80 scholarly articles, many of them on firearms law and policy. He is co-author of the first law school textbook on the subject, Firearms Regulation and the Second Amendment, forthcoming from Aspen Publishers.


Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.

Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.

Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.

The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.

Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees.  This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.

Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government was at “no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.”

But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality  around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.

Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”

The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.

Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.

Absolutely true, to this very day.

Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.

Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.

This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.

But one major change upset the Madisonian balance. In the 1936 case United States v. Butler,  the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.

The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.

So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.

What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.

But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.

Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.

Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:

To these [federal soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.

In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.

Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.

Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.

Wednesday, June 30th, 2010

David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law.