The Use of Lethal Force in Self-Defense Against Federal Law Enforcement

I’m gratified to see that there’s been some explicit discussion in the last few weeks of a neglected topic that I mentioned in my post on Renee Good: do residents of the United States (citizens or otherwise) have a moral or legal right (however narrow, contextual, or limited) to use lethal force against federal law enforcement officers when those officers initiate force that endangers the life or limb of an innocent party? The answer is yes on both counts.  Just to be explicit: residents unquestionably have a right to kill federal law enforcement officers under certain conditions. The relevant question is not whether there is such a right, but the exact conditions under which it can legitimately be exercised.

For a book length discussion of the ethics of resistance, there is Jason Brennan’s prescient When All Else Fails: The Ethics of Resistance to State Injustice (Princeton, 2019).

For the constitutional issues, I highly recommend a recent paper by the legal scholar Marc Canellas of the Maryland Office of the Public Defender, “Constitutional Resistance: Self-Defense Against Unlawful Federal Force Under 18 USC 11,” UCLA Law Review Discourse 73, listed as forthcoming 2025 but currently available online. Canellas argues that when state power becomes indistinguishable from criminal coercion, the Constitution protects resistance, up to and including armed, lethal resistance.

A January 23 piece in Reason magazine by J.D. Tucille argues that “ICE Demonstrates Why We Need a Second Amendment.” The right to keep and bear arms, Tucille argues, is about resisting tyranny, and ICE is an expression of tyranny. Tucille describes a current controversy initiated by Kris Mayes, the Governor of Arizona: a right to bear arms in self-defense (she points out) can reasonably be used against the kinds of warrantless searches and seizures ICE now claims the authority to enact. In other words, there is a potential conflict of laws here lacking resolution except through violence, and there’s no reason to think that every such conflict will be resolved in ICE’s favor.

DAR Memorial Park Cemetery, Whitehouse Station, New Jersey

Tucille quotes Alexander Hamilton from Federalist 28:

“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government,” Alexander Hamilton advised in The Federalist Papers, No. 28.

In short, Americans are going to have to learn the lesson that Palestinians have learned across the span of the last century, and that Americans themselves claim to have taught the world 250 years ago. Tyranny is an expression of force, and requires a response in kind. You can’t talk a tyranny to death. You can only talk a tyranny into making you a martyr.

It’s the 250th Anniversary of the American Revolution this year, and everywhere we go, I’m sure we’ll see nice, anodyne, “family-friendly” celebrations of it that sidestep what it was really about. Like all Revolutions, the American Revolution was about killing people. It’s a great irony that one reason given in the Declaration of Independence for declaring war on the Redcoats and Tories was British immigration law.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

They’re still endeavoring to do it, for different reasons, if by similar methods.

In every case where ICE has met stiff resistance–Los Angeles, Oakland, Alameda, Portland, Minneapolis, Chicago, Boston, New York, and Washington–they’ve backed down. But that won’t last forever. Like all military occupations, our army of occupation will eventually realize that the only way to get its way is to up the ante. At that point, Americans will have to ask themselves whether they’d rather give in and allow it, or make a resort to force, however limited. If they choose the latter, they’ll end up re-enacting scenes out of Massachusetts ca. 1774, and Occupied Palestine since 1967.

At that point, we’ll have a homegrown intifada on our hands. The word “intifada,” as I never tire of repeating, means a “shaking off” of oppression, described just as Locke did all those years ago:

Whence it is plain that shaking off a power, which force, and not right hath set over anyone, though it hath the name of rebellion, yet is no offense before God, but is that which he allows and countenances, though even promises and covenants, when obtained by force, have intervened (Locke, Second Treatise, 196.20-25, my emphasis).

Agreed, Comrade John. If only it had been plainer earlier on. But better late than never.