During the summer of 2020, violence shook many American cities. Rioting and looting destroyed businesses, damaged property, and caused injuries to people. But what exacerbated the situation, in a way that hasn’t occurred since the Reconstruction South of the 1860s and 1870s, was local government complicity in that violence.
Immediately following the Civil War, local governments in the South stood by passively as mobs of Confederate-sympathizers terrorized white Republicans and the newly freed blacks. Government officials acted in concert with the mobs to perpetuate the violence. At the same time, southern governments tried to restrict white Republicans and newly freed blacks from owning firearms with which to defend themselves.
A century and a half later, local governments similarly turned a blind eye to the looting and rioting mobs that roamed American cities during the summer of 2020. Not wanting to appear oppositional to the political message under which the mobs operated – not wanting to alienate a favored constituency – government officials refused to enforce the law against those mobs. Often, the officials even boasted that they were declining to prosecute law-breakers, thus deliberately choosing to favor one faction of people – e.g., the mobs, operating under the guise of political protest – over all those people whose lives and property were being threatened.
People who owned property or businesses in the path of the urban rioting and looting were dismissed as necessary casualties of the violent activities perpetrated by the favored political group. Those property owners were left to fend for themselves, ignored by local police and city officials. And when those owners sought to protect their property and defend their rights, law enforcement personnel prosecuted them for the illegal bearing of firearms, as happened to the McCloskeys in St. Louis.
Two terrible things took place during the urban riots of 2020. First, violent mobs roamed cities, terrorizing residents of those cities. And second, local government became a complicit partner with those mobs.
As James Madison wrote more than 200 years ago, mobs pose an acute danger to democracies. In Federalist 10, Madison used the term “faction.” Because of the freedoms inherent in a democracy, mobs or factions could easily form. Therefore, the duty of an effective government was to prevent those factions from acting in ways that would deprive other people of their liberty or property. If that government failed to do so, and particularly if it conspired with a faction, then the people bore the responsibility of counteracting that faction and defending themselves against it.
The Second Amendment provides a constitutional protection against the dangers of faction about which the constitutional framers so worried. These dangers became readily apparent in the hundreds of millions of dollars of property damage inflicted during the summer of 2020. The Reconstruction Congress of the late 1860s knew that Second Amendment freedoms were necessary for white Republicans and newly freed blacks in the South to defend themselves against government-encouraged mobs. This need proved just as acute in 2020. Indeed, without any help by local law enforcement, property owners had only their freedom to keep and bear arms as a means of protecting themselves, their homes and their businesses.
Frequently in our political discourse, the Second Amendment is cast as an unjustified right that only leads to killings and assaults by violent criminals. But the events of 2020 demonstrated a much different aspect of the Second Amendment. The Second Amendment did not facilitate the violence; the right to keep and bear arms did not lead to the destruction. Instead, it was the Second Amendment that provided the only means by which victims of violent mobs could defend themselves and their property.
Opponents of the Second Amendment like to create a particular bogeyman in their crusade against the Second Amendment, and that bogeyman is usually the evil National Rifle Association. But what the riots of 2020 revealed was that it was not the NRA that needed the right to keep and bear arms — it was the everyday citizen who simply wanted to protect themselves against a mob that operated under the tacit, and sometimes explicit, approval of local government.
Patrick M. Garry is a professor of law with a Ph.D. in constitutional history at the University of South Dakota Law School