Another tragic mass shooting has ripped through the headlines in California and around the United States. Invariably, long before the families had a chance to grieve or the investigators had a chance to examine the evidence, special interest groups and on-screen pundits of every stripe were voicing their respective arguments. Either guns are the problem or mental health is the problem. With full acknowledgement that the timing of this discussion will always offend some victims and their families, passion, motivation, and inspiration are not phenomena to be ignored. Indeed, they are the fuels that have spurred on every great change and movement throughout human history. Rav Tzadok HaCohen teaches that whenever a person seeks to disconnect from an earthly desire and to move into the spiritual plane, time is of the essence (Tzidkas HaTzaddik 1). No time seemed better to examine the constitutionally enshrined right to “keep and bear arms” and what the Torah has to say about it from the perspective of the American Jewish community.
The Torah and the sages certainly recognize a person’s right to defend themselves, with arms if necessary. The gemara relates that those who go out to defend themselves or save lives with their weapons may return to their destinations with their weapons on the Sabbath (Eiruvin 45a). And the famous sanction of deadly force in the act of self-defense is found in the midrash:
צרור את המדינים. למה? כי צררים הם לכם. מכאן אמרו חכמים: בא להרגך השכם להרגו.
Attack the Midianites. Why? Because they attack you. From here the sages said: if one comes to kill you, preempt and kill him.
(Bamidbar Rabbah 21:4). So if the second amendment right to keep and bear arms simply fortifies a right to self-defense with adequate equipment, perhaps the gemara and the midrash represent rabbinic concurrence. But in order to determine the motivations behind the second amendment, a brief – and decidedly unexhaustive – analysis of what the U.S. Supreme Court has said on the subject will be enlightening. Only then can we hope to opine what the Torah prescribes.
The Supreme Court interpreted the second amendment of the Constitution to protect an individual’s right to bear arms in the landmark 2008 decision District of Columbia v. Heller, 554 U.S. 570. In the majority decision, Justice Scalia begins by examining the wording of the second amendment, and in so doing he examines the intentions and purposes built into the text. The second amendment reads as follows:
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.
(Constitution of the United States of America 1789, Amendment II). One of the first things to jump out of the words is that the right preceded the writing of the Constitution. A right cannot be infringed if it did not already exist. And in the introductory dicta, Justice Scalia outlines three reasons that the right to bear arms had become such a bedrock of English libertarianism: (1) an armed populace can be the most effective defense against an invading force; (2) an armed populace can stand in the stead of a professional army; and (3) an armed populace can resist the machinations of a tyrant. District of Columbia v. Heller, 554 U.S. 570, 598. For the sake of brevity and pragmatism, we are going to ignore the first two motivations. The current geopolitical climate and balance of power do not allow us to fathom an invasion of the American mainland; I am not saying it could or will never happen, it is just extremely remote at this time. And I think we would all agree that we have passed the point of rendering a professional army obsolete. That leaves resistance to tyranny as the compelling, relevant interest behind the second amendment in 21st century America. An armed populace serves as a check to any would-be despot; when we come to protest, we might come armed.
The question then becomes: what do our sages say about armed rebellion? One could look to the Bar Kokhba revolt against the Roman emperor Hadrian as an affirmation that Jews do rebel. That case, however, featured a supernal military leader that had been deemed worthy of the crown of Messiah by the preeminent sage of the day (Yerushalmi Taanit, 4:5). Absent that unique feature – and the fact that the war was fought over the Holy Land – it seems clear that the revolt would not have been sanctioned.
As for supporting an attempt to overthrow the government in a host country, the Torah’s attitude seems resolute. The mishnah states:
הוי מתפלל בשלומה של מלכות שאלמלי מוראה איש את רעהו חיים בלעו.
One should pray for the peace of the government, for without fear of [the government], one person will swallow the other’s life.
(Avos 3:2). In the times of the Second Temple, Rabbi Yochanan ben Zakkai and his students vocally supported Roman control of Jerusalem. Those who opposed them were deemed evil instigators who endangered the Jewish nation (Gittin 56b). And closer to the present-day, Rabbi Yechiel Michel Epstein, the Arukh HaShulkhan, in his prefatory essay of adoration to the Tsar of Russia, wrote the following:
ואם ככה עשו קדמונינו בימיהם בעת אשר לא היו עדיין להמלכים משפטים קבועים במדינה, ודנו ככל העולה על רוחם ״דעספאטיזם,״ על אחת כמה וכמה שהחיוב מוטל עלינו לאהוב את אדונינו הקיר״ה לירא מפניו, ולכן בכל תפוצות ישראל מתפללים בלב טהור בכל שבת ויו״ט לפני ה על שלום אדונינו הקיר״ה ואשתו וזרעו וכל משפחתו.
And if our predecessors acted thusly in their days at a time when there were still no codified laws governing kings in their countries, and they adjudicated matters in every way like a “despotism,” how much more so is the obligation upon us to love our ruler the Tsar and to be in awe before him? This is why, in all corners of the Jewish world, we pray with a pure heart every Shabbat and Festival before Hashem for peace for our master, the Tsar, and his wife, children, and entire family.
(Arukh HaShulkhan, Choshen Misphat, Kavod Melech). He goes on to say that those who use the classic anti-Semitic appeal that Jews are revolutionaries and conspirators are lying, and if correct at all, are not speaking of Jews that conduct themselves as such.
Gun violence in the United States has reached pandemic proportions for a civilized country in the 21st century. The sociological, medical, and economic factors that have led us to this point are myriad and complex. The battle over the meaning and necessity of the second amendment will likely rage on, with any regulatory legislation challenged and weighed against the need for an American populace that can stand up to its government if need be. But that is not a Jewish fight. We live in America a grateful, if cautious, people. We vote and participate, but we cannot and will not ever be involved in a violent confrontation or protracted conflict with the government. Insofar as the second amendment is intended to preserve that possibility, we pray for the stability of the government. The right to keep and bear arms, at least in this country, is not a right enshrined in the only Document that has kept and born the Jewish people throughout our history in Exile.