What Is the Deep State? Civil Servants and the Military Obeying the Rule of Law

This article first appeared on Dorf on Law.

Another day, another mass shooting that -- despite the seemingly endless gun violence that this country needlessly endures -- has a high enough body count to (for now) constitute front-page news.

Barely anyone noticed any of the multiple shootings in the five weeks between the Las Vegas massacre and what was quickly labeled the Texas Church Shooting, but the body count in those killings totaled 29, which is three more than the current death toll in Sutherland Springs.

We already know that there will still not be a real political debate about guns, and the people who continue to enable this carnage will return to their usual talking points about it being "too soon" to discuss policy and that the real problem is mental health (or something else, as long as guns have nothing to do with it).

For now, therefore, it seems safe to assume that Donald Trump and the Republicans will continue to promote their paranoid, macho fantasies about how none of this would be a problem if everyone had a gun. The rest of us are left to ponder the madness.

In this column, I will address the problem of gun violence indirectly by clarifying a point that I made last week in a column about the so-called insurrectionist view of the Second Amendment, a fringe theory holding that the reason The People need to be privately armed is to be able to rise up against a despotic government. In so doing, I will also make a larger point about the importance of soldiers' and citizens' commitment to the rule of law.

Although I devoted last week's column to debunking the purported justifications for the insurrectionist view, I may have inadvertently reinforced a presumption that seems to support that view. Specifically, I took as a starting point for my argument an insurrectionist claim that some large number of U.S. military personnel and citizens would join in a revolt against the government.

Whether or not I left the impression that I agreed with that assertion, I want to be clear here that I disagree strongly with any such claim. I was, instead, trying to show how crazy the insurrectionist view is even if one assumes bad things about the loyalty of members of the U.S. military -- and, for that matter, of even most gun-owning American civilians. I emphatically do not share those cynical and insulting views.

GettyImages-870343032 Donald Trump greets US troops at Yokota Air Base at Fussa in Tokyo on November 5, 2017. JIM WATSON/AFP/Getty GettyImages-870343032 Donald Trump greets US troops at Yokota Air Base at Fussa in Tokyo on November 5, 2017. JIM WATSON/AFP/Getty

After the Las Vegas mass shooting, I wrote two columns in which I pointed out that the Second Amendment is a red herring in the U.S. gun debate. Yes, any constitutional provision creates a line that separates valid from invalid policies, but the proposals on offer in the U.S. are all comfortably on the valid side of that line. Being "in favor of the Second Amendment" is thus a meaningless statement in the context of choosing among such policies today.

My column last week was inspired (although that seems too positive a word) by the question of whether a citizens' uprising could ever bring a despotic government to heel. As is common (even among right-wing icons like the late Justice Antonin Scalia), I all but laughed off the idea that do-it-yourself militias could stand up against the weaponry of the U.S. military.

The insurrectionist view has always been " out there," but the Oklahoma City bombing in 1995 seemed for a while to have put the idea to rest. Proving that one can never keep a bad idea down, however, some people on the fringes appear to believe that Scalia's confident assumption about the superiority of the U.S. military has a fatal flaw.

In this view, because our all-volunteer military draws disproportionately from people in the struggling areas of the country that are experiencing epidemic levels of opioid deaths and (supposedly as a result of such symptoms of economic stagnation) supported Donald Trump in the 2016 election, liberals like me should not be too sure that the military would take "my" side in a fight.

The idea, apparently, is that if a future Congress banned private ownership of guns, the military would mutiny before following orders to enforce such a law. More immediately, I posited that this logic would also imply that such would-be mutineers might take Trump's side in an impeachment crisis.

Again, I absolutely do not believe that this would happen. It is true that any reasonable person would worry about the possibility that white supremacists and other extremists have joined the military, if for no other reason than to take advantage of the federal government's top-notch military training.

But that possibility is hardly lost on the military itself. As Stars & Stripes reported last month: "There have been longstanding concerns about right-wing extremists in the military, about such groups seeking to infiltrate the services to gain tactical knowledge and about troops' radicalization after they've joined."

A Pentagon spokesman reaffirmed the military's commitment to fight against such extremism: "Association or participation with hate or extremist groups of any kind violates the Department of Defense's core values of duty, integrity, ethics, honor, courage and loyalty. We take any and all allegations of misconduct very seriously."

This means that, although there are surely some guys sitting around somewhere feverishly talking about getting their buddies in the military to join in the fight against the Washington Establishment, there is no reason to think that they are doing anything other than fooling themselves. What sounds plausible after nine or ten beers is not the basis for a revolution.

As I noted above, even non-military people who own guns have reason to feel slandered by any claim that they would take up arms against the U.S. Constitution. Whether or not they disagree with people like me regarding the best way to respond to gun violence, it is several giant leaps from there to imagining that those people would be willing to take to the streets in violent support of Trump.

Yes, even a tiny number of crazies can cause real damage, and that is why we need to increase the efforts by law enforcement agencies to track and neutralize such domestic terrorism. But the idea of a mass uprising of armed citizens and soldiers, all of whom are willing to ignore the law and shoot their fellow citizens and soldiers is (thankfully) in a completely different category.

I have noted in past columns that academics like me need to be aware of an occupational hazard known as "arguendo reasoning," which is the practice of saying, "Even if we take your claim as true for the sake of argument, you are still wrong." For example, even if there were no climate change, I can prove that we should still reduce air pollution. But that does not mean that climate change is not real.

The danger is that spending too much (or sometimes any) time acting as if a crazy assertion is true can reinforce that crazy idea in people's minds, making it seem as if everyone agrees with the for-the-sake-of-argument premise.

That might be what happened in my column last week. I was so busy engaging with the crazy argument on its own terms that some reasonable readers might mistakenly have thought that I accept those terms.

In any event, it is worth emphasizing the comforting reality that the vast majority of Americans, those serving in the military and law enforcement as well as private citizens, are loyal to the rule of law. Even those who support Trump politically -- and thus have put a man in the office of the president who disdains the rule of law -- would (with some worrying exceptions) be appalled by a Trumpian effort to refuse to leave office.

Again, tiny minorities of bad actors can do real harm. Even so, we should be pleased to know that members of the Secret Service, the FBI, the military, police forces, and so on, take their oaths seriously.

Indeed, it is important to emphasize that we are not ultimately relying on people honoring their official oaths. One of Trump's more troubling fascist-adjacent practices during his campaign rallies was to lead people in his audiences in oaths of loyalty to himself. Similarly, Trump has demanded oaths of personal loyalty from people like former FBI Director James Comey (who refused, which is part of why he is now "former").

What ultimately will stop people from doing whatever Trump demands will be their commitment to the rule of law, whether or not they have taken an oath. Those readers who are fans of "Game of Thrones" might recall an episode in which Lord Varys, an advisor to a series of brutal monarchs, is confronted for his seeming lack of loyalty, as he has moved from one ruler to another despite having pledged loyalty to each.

Varys responds by pointing out that it was those murderous despots who were disloyal, because they had started out by presenting themselves as worthy of Varys's admiration and commitment. When they revealed themselves not to be committed to Varys's ultimate goal -- the good of the people -- he felt no compunction about breaking with each bloodthirsty pretender.

And that is what true patriots are made of. I honestly do not know whether, say, a social scientist at the Department of Housing and Urban Development is first required to recite an oath. If she is, then I suspect that the reciting of the oath does nothing to change her commitment to the job. At most, it would provide a memorable moment which she can recall when she needs to make a difficult choice about following orders or following the law.

In the end, what the paranoid Trump loyalists have re-branded "the deep state" is nothing more than public servants who take the rule of law seriously. To the complaint that these citizens are hindering Trump and the Republicans in Congress from doing what they want, the answer is: Oath or no oath, we are not here to serve you, but to serve the Constitution and the rule of law that it represents.

From military personnel to judges to Social Security administrators to police officers to private citizens, loyalty is owed to those who earn it by showing that they too believe in a "government of laws and not men." So long as most people are still committed to ideals of republican democracy and not cults of personality, our challenges will not be existential.

Neil H. Buchanan is an economist and legal scholar and a professor of law at George Washington University. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.

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