The State’s Monopoly of Force and the Right to Bear Arms

Robert Leider | August 29, 2021

In debates over the Second Amendment, the conventional view is that the government ought to possess a monopoly of legitimate force, subject to the right of individuals to act in emergency self-defense. Many treat the nondefensive circumstances in which our system decentralizes force as holdovers from the days of nonprofessional police and soldiers. When it comes to the Second Amendment, many believe that the only legitimate reason individuals may bear arms today is for individual self-defense against isolated criminal violence (e.g., to resist a home invasion).

This Symposium Essay attacks the monopoly-of-force account, justifying the continued relevance of American law’s decentralization of legitimate force. This Essay argues that decentralization of force remains important for three reasons. First, despite the rise of professional police, American law enforcement still enforces core crimes below desirable levels, particularly in disadvantaged and rural communities and during times of civil unrest. Decentralization of force mitigates this underenforcement problem. And decentralization may be a better solution than providing more police because many areas where law is underenforced also (paradoxically) suffer from the effects of overcriminalization. Second, American law has a mismatch between public duties and private rights. Providing effective law enforcement is only a public duty. Individuals have no private claim that the government adequately enforce the law or protect them against unlawful violence. Self-help and private law enforcement are the best remedies when governments undersupply needed levels of police protection. Third, even if the government has a monopoly of force, it does not follow that government officers are the only ones in whom the government’s monopoly may be vested. The government is an incorporeal entity whose power must be exercised by human agents. Agents do not perfectly carry out the tasks of their principals; some government officers commit malfeasance and nonfeasance. The decentralization of force provides a remedy for such abuses of office.

Ultimately, this Essay concludes that the individual right to bear arms still has relevance for public defense and security. This fact should warrant consideration when determining the scope of the right, including that the arms protected by the Second Amendment should continue to include those arms that are primarily useful for public security.