Section Two: “The Second Amendment of the Constitution does not justify the ‘right to bear arms’”

The article, “The Second Amendment of the Constitution does not justify the ‘right to bear arms”, written by Hari Kumar takes a strange approach in how it argues in favor of gun control. In this article he makes a vain attempt to discredit individual gun ownership on a legal basis by attacking its constitutionality. From a Marxist perspective this is bizarre as to quote Lenin,

“. . . The state is nothing but a machine for the oppression of one class by another, and indeed in the democratic republic no less than in the monarchy.“
- Lenin, the State and Revolution, September 191

and,

“The new civil legislation is being drafted. I find that the P.C.J. is “swimming with the tide”. But its task is to swim against the tide. Its task is to create a new civil law, and not to adopt (rather, not to allow itself to be duped by the old and stupid bourgeois lawyers who adopt) the old, bourgeois concept of civil law.”
- Lenin, ON THE TASKS OF THE PEOPLE’S COMMISSARIAT FOR JUSTICE UNDER THE NEW ECONOMIC POLICY

As Marxists we understand that the United States of America is a bourgeois state which exists solely to repress the working class in the interests of the bourgeois class. The Constitution of the United States was written by the representatives of the bourgeoisie and the slave holders, and it is the document which outlines the day to day running of bourgeois democracy. As the present state serves to repress the working class, it follows that the ruling class can and will bend or break its own Constitution and violate the concessions given to the workers the second it becomes in the interests of the bourgeoisie to do so. Therefore it follows that we Marxist-Leninists, as the advanced representatives of the proletariat must expose this truth.

Lenin wrote,

“The bourgeoisie are compelled to be hypocritical and to describe as "popular government", democracy in general, or pure democracy, the ( bourgeois ) democratic republic which is, in practice, the dictatorship of the bourgeoisie, the dictatorship of the exploiters over the working people. The Scheidemanns and Kautskys, the Austerlitzes and Renners (and now, to our regret, with the help of Friedrich Adler) fall in line with this falsehood and hypocrisy. But Marxists, Communists, expose this hypocrisy, and tell the workers and the working people in general this frank and straightforward truth: the democratic republic, the Constituent Assembly, general elections, etc., are, in practice, the dictatorship of the bourgeoisie, and for the emancipation of labor from the yoke of capital there is no other way but to replace this dictatorship with the dictatorship of the proletariat.”
- Lenin, Democracy and Dictatorship, January 3rd, 1918

Of course, here it seems that not only has Kumar failed at his basic duty in exposing these lies, but he has actively pushed them, as rather than point out the inherently reactionary nature of the bourgeois Constitution and the bourgeois state, Kumar claims that: “Only people’s control over the agencies of the USA state can ensure a truly democratic agenda for the workers.”(sic!) Who wouldn't be excited to see the Workers Central Intelligence Agency, the Workers Federal Bureau of Investigations, the Workers National Security Agency, or the Workers Border Patrol. The claim that workers or such a vague group described by Kumar as “the people” can take over the bourgeois state machinery to “ensure a truly democratic agenda for the workers” is obviously absurd, it’s profoundly un-Marxist.

To demonstrate, Marx & Engels wrote that,

“One thing especially was proved by the Commune, viz., that ‘the working class cannot simply lay hold of the ready-made state machinery, and wield it for its own purposes.’”
- Karl Marx & Frederich Engels, Preface to the 1872 German Edition of the Communist Manifesto

Or in other words,

"Once capital exists, it dominates the whole of society, and no democratic republic, no franchise can change its nature."
- Lenin, The State: A Lecture Delivered at the Sverdlov University

Additionally Lenin wrote that,

“The words, ‘to smash the bureaucratic-military machine’, briefly expresses the principal lesson of Marxism regarding the tasks of the proletariat during a revolution in relation to the state. And this is the lesson that has been not only completely ignored, but positively distorted by the prevailing, Kautskyite, ‘interpretation’ of Marxism!”
- V.I.Lenin, The State and Revolution, Chapter 

It is simply bizarre and thoroughly damning that someone who has called themselves a Marxist Leninist for so long could have made a mistake such as this. The State and Revolution is one of the first books that new Marxists read, and it is the first book on the Lenin section of the official APL reading list. As the Deputy National Secretary of the American Party of Labour, it is simply impossible that Hari Kumar has not read this book or that he was unaware of the basic principle of the necessity of the revolution in achieving the dictatorship of the proletariat. Were it that Kumar was just incompetent or that he made an honest mistake, it would beg the question of how none of the Red Phoenix editors caught this, and how it has stayed up for as long as it has. Therefore, either the American Party of Labor has acted incompetently here, or it genuinely advocates for this line. Either way, the APL has failed at its revolutionary duties here.

Even Kautsky (accidentally) understood that dictatorship is power without any restriction of law.

"Like a blind puppy casually sniffing first in one direction and then in another, Kautsky accidentally stumbled upon one true idea (namely, that dictatorship is rule unrestricted by any laws)"
- Lenin, The Proletarian Revolution and Kautsky the Renegade

How in a class dictatorship are you going to establish “peoples” control over the ‘bureaucratic-military machine’? I am genuinely appalled that a person whom I was once fooled into believing was even the slightest bit respectable would stoop so low. Then again, I suppose we all have our own Kautsky.

As Marx said,

“The first time as tragedy, the second time as farce.”
- Marx, The Eighteenth Brumaire of Louis Bonaparte, 1852

For it is a farcical display like no other to see a quote-unquote ‘Deputy National Secretary’ attempt to pass the claim that the superstructure can be subordinated completely to what is, in essence, a political factor, without any change in the mode of production. As Kumar put it, “peoples control over the agencies of the USA state”. What banal and empty language!

Not only has Kumar claimed that the “people” need to lay claim to the bourgeois state machinery, but he also based his entire argument on bourgeois Constitutionalism/legalism. It is likely that in trying to provide a legal argument, Hari is really trying to provide a legal basis in which the second amendment could be reinterpreted in a way that would allow the right of the individual to firearm ownership to be struck down by the Supreme Court. However Kumar’s line of argumentation, once placed in the context of the interpretation of US law, is a manifestation of how the stated theoretical principles of the American Party of Labor are inconsistent and hypocritical.

The judicial system of the USA is heavily based on court precedents. When the Supreme Court makes a ruling on a case, a precedent is created for how that law will be interpreted in future courts, which lower courts are expected to follow. In essence the supreme court interprets the law, and the law must always be in accordance with that of the Constitution, which is considered the highest law of the land.

There are two main tools used in the interpreting of this document; textualism and originalism. Textualism is when you interpret the Constitution based on the text of the document, while originalism is when you interpret the Constitution based on how it was originally understood and interpreted during the times of the founding fathers or original enactment of the amendment in question.

Both tools of interpretation ultimately still represent the class rule of the bourgeoisie over the the proletariat, as again, the Constitution was written by the representatives of the bourgeoisie and the courts that interpret it have always been controlled by the bourgeoisie, or in the past, by the slaveholders to a significant extent. Therefore it follows that as Marxists, we should not operate from either a perspective of originalism or textualism, but rather we should fight to not only maintain the concessions we already have, but to attain new ones, all the while exposing the farcical and hypocritical lies of the bourgeoisie, using the systemic betrayal of their promises and ‘laws’ as unquestionable proof of these facts. Placing them on the defensive, by forcing them to pay with the radicalisation of the proletariat for every violation of their own “terms”. This is the best and only functional way to attempt any preservation of these concessions.

With this in mind, I shall refute Kumars originalist basis for his argument from a legal perspective not because I actually uphold legalistic arguments as a justification for one or another policy, because, as a sensible Marxist, I do not. Rather, simply to prove that Hari has failed to do real research, and that he will move heaven and earth to bend over backwards to the Democratic Party line. Even if that means throwing marginalized groups under the bus; which in all fairness is not unlike a Democrat, not unlike the APL.

Kumar, rather counterproductively justifies his argument mainly from an originalist perspective, by making the argument that the second amendment was originally intended to ensure the security of the bourgeois state via citizens militias, and that therefore, the interpretation of it as protecting individual firearm rights is a practice in historical revisionism, and therefore unconstitutional. This type of interpretation is particularly dangerous, not just because the conclusion he has come to here is reactionary and foreign to both Marxism-Leninism and the aims of revolutionary communism, but also because of the conclusions it would lead you to for other cases. By this logic, you could very well overturn Obergefell vs Hodges, Lawrence vs Texas, or Grisworld vs Connecticut, i.e gay marriage, decriminalization of sodomy, and contraceptive rights.

In 2022, Roe vs Wade, the historic precedent which ensured the right of all women to an abortion, was overturned by Dobbs vs Jackson Women's Health Organization, which was a massive setback for women’s rights. In that case, the court claimed that “substantive due process” is an “oxymoron” that has no “basis in the Constitution”, and that “text and history provide little support for modern substantive due process doctrine”. The court then went on to say: “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” We have a duty to “correct the error” established in those precedents.”

The American party of Labor's program clearly states that the APL demands that women's reproductive rights be respected, and an end to all discrimination on the basis of sexual orientation. If this is the case, the APL cannot promote an originalist interpretation of the Constitution, otherwise they are undermining the struggle for women's reproductive rights and LGBTQAI+ rights, as well as substantive due process, putting the civil rights concessions that we have already gained into contention. The fact that the APL is here applying this originalist interpretation, contradicts the practical application of their program, and therefore it represents a contradiction within the line of the American Party of Labor. In other words they are hypocrites.

Just to humor Kumar from a legal approach, he is also incorrect in his assertion that the second amendment of the Constitution does not justify the right to bear arms. In June, 2008, The United States Court of Appeals for the District of Columbia Circuit (DCC) ruled that the second amendment of the Constitution does in fact protect the right of the individual to keep and bear arms.

“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition.”
- (United States v. Sprague, 282 U.S. 716, 731).

What this in essence means, is that you also cannot divorce the interpretation of the Constitution from a common understanding of it, using a technical definition or exercise in pedantry. Legally speaking the contemporary and historical  common understandings of the language used in the Constitution must be taken into consideration in how it is applied. Nobody in question is disputing the meaning of the language “to keep and bear arms”, rather whether the right of the people refers to a collective right via a well regulated militia or an individual right to the keeping of firearms.

The DCC pointed out that the second amendment is clearly divided into two parts, a prefatory clause, explaining why the second amendment is necessary, and an operative clause, outlining the main action, obligation, or requirement that all parties must follow. The prefatory clause does not limit the scope of the operative clause, rather it serves a clarifying purpose.

The DCC justifies this claim with the following:

“ ‘It is nothing unusual in acts ... for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ”
- J. Bishop, Commentaries on Written Laws and Their Interpretation § 51, p. 49 (1882) (quoting Rex v. Marks, 102 Eng. Rep. 557, 560, 3 East, 157, 165 (K.B.1802)).

1802 was only 26 years after the founding of the United States, and therefore it follows that this precedent is as close as we have in court record to how this issue may have been understood as to how the Constitution was understood in the time of the founding generation of the United States.

The prefatory clause of the second amendment is “A well regulated Militia, being necessary to the security of a free State,-” while the operative clause is “the right of the people to keep and bear Arms, shall not be infringed.” Because the operative clause of the second amendment is separate from that of the prefatory clause, the second amendment can be understood in two parts as two separate rights, that being the right of the people to form a well regulated militia, as well as the right of the individual to keep and bear arms.

The operative clause specifically uses the terminology of “right of the people”. That specific terminology is used in two other contexts in the bill of rights, in the assembly and petition clause of the first amendment, as well as the search and seizure clause of the fourth amendment. Similar terminology is used in the ninth amendment.

As pointed out by the District of Columbia Circuit,

 “All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.”
​- District of Columbia v. Heller, 554 U.S. 570, 171 L. Ed. 2d 637, 128 S. Ct. 2783 (2008)

Therefore it follows that the operative clause of the second amendment is referring to the individual right to bear arms, i.e have, possess, carry, and wear weapons.

If you were to dispute this, you would be breaking precedent, and setting a new precedent that “the right of the people” does not in fact imply the right of the individual, and thus you would logically be forced to make the claim that for example, the first amendment does not protect the right of the individual to petition the government and peacefully assemble, but rather only the right of a collective body of the people. From this logic you could even argue that the search and seizure amendment only applies to corporate bodies, and that the police have the right to search the homes and seize the property of any U.S citizen without a warrant or probable cause. This is why, from the standpoint of communists, liberals, conservatives, or anyone that isn't an outright fascist, it is very clear that “the right of the people” specifically refers to individual rights within the bill of rights.

When it comes to Constitutional law, you cannot understand any ruling that you may prefer in isolation from the rest of Constitutional law. If you make a ruling in one place, a new precedent is set that will affect the outcome of future cases.

But the more astute reader will point out that even a textualist approach leads to problems. The law of the Constitution was originally written by the representatives of the landowning bourgeoisie and slave-holders. It specifically lays out the organization of what is now the world's preeminent imperialist state, and it serves to justify the rule of the bourgeoisie. So even if you took a textualist approach you would be bound to find that the text of the law clearly contradicts that of the aims of the revolutionary proletariat. Once again Kumar is reduced to serving bourgeois interests with his “reform”.

According to Stalin, 

“To a revolutionary, on the contrary, the main thing is revolutionary work and not reforms; to him reforms are a by-product of the revolution. That is why, with revolutionary tactics under the conditions of bourgeois rule, reforms are naturally transformed into an instrument for strengthening the revolution, into a strongpoint for the further development of the revolutionary movement.”
- Stalin, The Foundations of Leninism

In regards to the question “Reform or Revolution”, Marxists understand that Revolution is a necessary inevitability and that Reform is an instrument of strengthening the revolution. That reform is a byproduct of pursuing truly revolutionary and progressive slogans. How does capitulating to bourgeois legalism and constitutional interpretation strengthen our movement, our revolution? How does it place the APL in a position so as to better assert itself as the leader of the working class? Of course, the only thing the APL leads in, is in complete incompetence, cowardice, and ineptitude.

What the APL advocates would disarm the working class. It could not be called a reform in any progressive sense because it is a direct attack on the revolutionary communist movement. So rather than reform, what Kumar is really pushing is a paranoid reaction to right wing violence. It seems that when threatened the APL would rather take the side of reaction. Is the APL going to do the same thing when the revolution or inter-imperialist war comes to the United States? If this is any indication, it certainly seems so. 

Tripping On Your Own Analysis

Hari Kumar develops his argument throughout his article in a flawed and half-baked way. He presents us with unimportant information that’s completely besides his main point, in a way that does not even help his case. Its essence is filled with contradictions.

For example Kumar writes that (quote) “The intent of the 2nd Amendment was to ensure the ruling class had access to an armed force ready to defend its independence from colonial powers, most especially the British.”

But then he goes on to say that the ruling class of America later viewed militias sceptically because they could turn against the ruling class. 

“In reality the new arising capitalist state quickly began to view the militias skeptically, fundamentally because militias might turn against the ruling class themselves.”
- Hari Kumar, The Second Amendment of the Constitution Does Not Justify The Right To Bear Arms

This is of course true, but it is also a tacit admittance that militias can be a threat to the ruling class. Does this admittance not discredit his main point? Furthermore this early bourgeoisie still would have had its own ‘militia’, either in the form of police or eventually a military. What this early bourgeoisie feared wasn't bourgeois militia, it was proletarian militia that challenged their class rule. The same proletarian militia, ironically, that the APL works so hard to prevent today.

Later, likely in a slanderous attempt to compare workers gun rights advocates to Confederates, he shares the following quote: “Southerners in particular were very concerned about maintaining state militias to suppress slave rebellions because they were doubtful that a national government dominated by Northern interests would be willing to commit federal troops and supplies to keep African Americans in the bondage of slavery”. The implication here is that militias were reactionary because they defended slavery.

The claim that militias as a whole are reactionary because some militias over a hundred years ago supported slavery is ridiculous, because just as the proletariat has its own class dictatorship so does the bourgeoisie. Just as the bourgeoisie has its own armed detachments to defend and uphold its class interests, so does the proletariat too need its own armed detachment. Kumar would be correct in pointing out that, yes, militias have been organized by reactionaries, but he is completely failing to provide any sort of Marxist analysis when he fails to ask “a militia for which class?”

Furthermore, he fails to take into consideration the slave patrols that didn’t disband, or that didn’t get put down with force alongside the Confederacy, were deputized into the police and no longer exist as a militia, and not only that, that many modern police forces are in fact direct continuations of these slave militias that are still profiling and murdering Black men in the streets to this day. But of course, the correct course of action is to abandon the right of the workers to bear arms, and leave Black men to be executed in the streets. What guarantee that we do have that the APL’s endeavors won't lead precisely to this result? Why would the bourgeoisie get rid of its own supporters, when it can institutionalize them instead, just as it did with the old slave patrols.

There have been reactionary militias in the past such as the slave patrols or the Ku Klux Klan, or the various colonial brigades. But this is not an inherent aspect of militias. Political power doesn't grow out of the barrel of a gun, it grows from the class holding the gun. Do you mean to tell me that agitating against the Ku Klux Klan wasn't accepted and that the correct solution is to abandon our right to possess firearms to protect us from these fascists? For as long as capitalism is around there will still be fascists, but you cannot honestly argue that the left, generally speaking, hasn't been successful in discrediting organizations like these.

We have two choices here.

A) Agitate against the fascists with guns.

B) Leave the fascists as the only ones with guns.

Kumar brought up the example of Shay’s Rebellion which consisted primarily of poor white farmers who were saddled with debts. In other words they consisted of a stratum of the lower peasantry who were engaging in spontaneous struggle against the upper peasantry and landowners who were oppressing them. By bringing up Shay’s Rebellion he is discrediting his own case.

It is incredibly intellectually dishonest of Kumar to cherry pick examples of ostensibly heinous militia groups while ignoring genuine proletarian organizations in both American and international history.

For a more recent example of this organized armed resistance of the working class, look no further than the revolutionary experience of the Black Panther Party, or BPP for short. The BPP had a very strong understanding of law, and they used that to their advantage to organize copwatching militias that protected Black communities from over-policing and police violence. Not only was the Black Panther Party defending themselves from police brutality, but in practice they were also preparing a real working class revolutionary militia of the armed workers. The APL, with its proposed regulations on firearms, seeks to in practice, make this impossible to ever restore. It is sacrificing the lives of Black workers and the best means of defending them form police violence for the sake of looking good towards the moderates and democrats.

The state of California under Republican Governor and future U.S president Ronald Reagan saw this, and attempted to crack down on it by passing the Mulford Act, a law which criminalized the open carrying of firearms. This attack on the BPP, among others, allowed the BPP to rally the Black working class against the racial injustices of the Bourgeois state, along openly anti-capitalist lines. History has proven that the right’s support for gun rights is opportunist in nature, and that the left is capable of pushing its own vision of gun rights which openly challenges the right wing.

Kumar, seems to be wrapped up in the idea that individual gun ownership is merely an adventurist slogan that comes from the right wing rather than from the principled left. This is reflected in his pinning of support for individual gun rights on lobbying and propaganda from groups like the National Rifle Association. What Kumar doesn't seem to realize, or rather willfully disavows, is that the importance of the universal arming of the proletariat was re-iterated by the classics over a hundred years ago. Quote,

“The minimum programme of the Social-Democrats calls for the replacement of the standing army by a universal arming of the people. Most of the official Social-Democrats in Europe and most of our own Menshevik leaders, however, have ‘forgotten’ or put aside the Party’s programme, substituting chauvinism (‘defencism’) for internationalism, reformism for revolutionary tactics.

Yet now of all times, at the present revolutionary moment, it is most urgent and essential that there be a universal arming of the people. To assert that, while we have a revolutionary army, there is no need to arm the proletariat, or that there would ‘not be enough’ arms to go round, is mere deception and trickery. The thing is to begin organizing a universal militia straight away, so that everyone should learn the use of arms even if there is ‘not enough’ to go round, for it is not at all necessary that the people have enough weapons to arm everybody. The people must learn, one and all, how to use arms, they must belong, one and all, to the militia which is to replace the police and the standing army.

 The workers do not want an army standing apart from the people; what they want is that the workers and soldiers should merge into a single militia consisting of all the people.
​
Failing this, the apparatus of oppression will remain in force, ready today to serve Guchkov and his friends, the counter-revolutionary generals, and tomorrow Radko Dmitriev or some pretender to the throne and builder of a plebiscite monarchy.”
- V.I.Lenin, A Proletarian Militia, Progress Publishers, 1964, Moscow

and,

“To ensure the sovereign power of the working people, and to eliminate all possibility of the restoration of the power of the exploiters, the arming of the working people, the creation of a socialist Red Army of workers and peasants and the complete disarming of the propertied classes are hereby decreed.”
- V.I.Lenin, Declaration Of Rights Of The Working And Exploited People

As well as, 

"The bourgeoisie wants parliamentarism in order to ensure the domination of capital rather than that of the bureaucracy, and at the same time it wants the monarchy, a standing army, the preservation of certain privileges for the bureaucracy, because it does not want to allow the revolution to reach its final goal, because it does not want to arm the proletariat—'arming' meaning both direct arming with weapons and arming with complete freedom."
-Lenin,  Revolutionary Office Routine and Revolutionary Action

Not only is Kumar’s position on firearms erroneous, not only are his justifications here completely absurd, but they are outright harmful. Kumar is using bourgeois legal terms to create bourgeois regulation on firearms that will be enforced and interpreted by the bourgeoisie to benefit the bourgeoisie. In practice this would mean the bourgeoisie is armed as a class while the Proletariat remains unarmed

 “In the January clash (of the 1905 revolution) there was a lack of arms, the people went into battle unarmed. The December clash marked a step forward, all the fighters now rushed for arms, with revolvers, rifles, bombs and in some places even machine guns in their hands. Procure arms by force of arms—this became the slogan of the day. Everybody sought arms, everybody felt the need for arms, the only sad thing about it was that very few arms were procurable, and only an inconsiderable number of proletarians could come out armed.

[...]

Yes, lack of arms—that was the second reason for the retreat of the St. Petersburg proletariat.”
- Stalin,  Two Clashes (Concerning January 9)

In tsarist Russia, rather than the surplus of guns we have in America today, they had a shortage of firearms, and these historical conditions led to the seizure of firearms for use by the Red Army. This however still constitutes an arming of the proletariat, as the Red Army were the armed representatives of the proletariat. With this in mind, by campaigning against firearms, Kumar is shooting us in the foot. If the law Kumar proposed were made official, it would be one step to putting us in the same bad position the Soviets had found themselves in. How many workers will end up dying if the APL gets its way, and we are left completely and utterly unprepared for the revolutionary situation. How many fathers and mothers will have to bury their sons and daughters?

Different conditions do in fact call for different gun policies, but the conditions of the Red Army are the opposite of ours today. After the proletariat has assumed state power, we may speak of regulating firearms as the USSR did, as the armament of the proletariat and its dictatorship had already been secured, but under the rule of the bourgeoisie it is simply absurd. What ultimately remains the same between the United States and USSR however, is the necessity of the armament of the proletariat in the achievement of the Dictatorship of the Proletariat.

The Right to Bear Arms as a Concession

It would be remiss of us to criticize the bourgeois outlook possessed by the APL on firearms if we would not or could not express our own outlook to the contrary. Not only do we have a duty to prove Kumar completely wrong in his analysis, but we also have a duty to provide our own analysis as well. So this brings us to our central question: “Should communists support the second amendment?” There are many different approaches that could be taken in answering this question, but for this section we will be looking at the right to bear arms as a concession.

Though many are not aware, many of the founding fathers, particularly the Federalists, were against the creation of a bill of rights.

“Federalists rejected the proposition that a bill of rights was needed. They made a clear distinction between the state constitutions and the U.S. Constitution.

[...]

The U.S. government only had strictly delegated powers, limited to the general interests of the nation. Consequently, a bill of rights was not necessary and was perhaps a dangerous proposition.”
- The Center for the Study of the American Constitution, The Debate Over  a Bill of Rights

Take for instance Alexander Hamilton who believed that, quote:

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.”
- Alexander Hamilton, The Federalist Papers no.84

This is because, and I quote:

“The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”
- Alexander Hamilton, The Federalist Papers no.84

In other words, what the Federalists believed is that it would be unnecessary to institute a bill of rights because the Constitution already has clearly defined and limited powers that it cannot act beyond. That the Constitution, because it limits the government, already functions as a bill of rights in that it restricts government interference in the lives of its citizens. However, it is worth remembering here that the framers of the bourgeois Constitution were representatives of the ruling class that keeps the oppressed classes under their boot.

James Madison, the architect behind the bill of rights, made this abundantly clear when he stated:

“In Republics, the great danger is that the majority may not sufficiently respect the rights of the Minority.

[...]

They [H.M.: The “Favorable” attributes of the human character] will always, in proportion as they prevail, be favorable to a mild administration of both; but they can never be relied on as a guaranty of the rights of the minority against a Majority disposed to take unjust advantage of its power. The only effectual safeguard to the rights of the minority must be laid in such a basis & structure of the Government itself: as may afford, in a certain degree, directly or indirectly, a defensive authority in behalf of a minority having right on its side.”
- James Madison, Speech in Virginia Convention, 1829

While the protection of the minority from the majority may sound very fine and dandy, we need to keep in mind who here is speaking, James Madison, a reactionary representative of the slave-owning bourgeoisie. This man wrote the original Bill of Rights, and chose not to include legislation banning slavery or promoting universal suffrage (i.e, Giving Black people & women the right to vote). When Kumar makes a constitutional originalist argument, as he has prior, it is people like this “comrade” Madison that he is deferring to, and attempting to draw legitimacy from. Who should the proletariat draw legitimacy from? The reactionary representatives of the bourgeoisie who drew the constitution and occasionally throw us a bone as a mere concession? Or the revolutionary labor and civil rights movements that won these concessions in the first place? Do we defer to scoundrels like Madison, or to the working class?

“To come more nearly to the subject before the Committee, viz that peculiar feature in our Community which calls for a peculiar provision, in the basis of our Government, I mean the coloured part of our population; It is apprehended, if the power of the Commonwealth shall be in the hands of a Majority who have no interest in this species of property, that, from the facility with which it may be oppressed by excessive taxation, injustice may be done to its owners. It would seem, therefore, if we can incorporate that interest into the basis of our system, it will be the most apposite and effectual security that can be devised. Such an arrangement is recommended to me by many very important considerations.” [H.M: My emphasis]
- James Madison, Speech in Virginia Convention, 1829

Madison speaks of the oppression of the minority by the majority but can there be real oppression of slaveholders by slaves? Obviously such a proposal would be profoundly racist and absurd and is not worth responding to. At the end of the day, the man who is credited as drafting the bill of rights himself is a defender of slavery, who upholds the interests of the slaveholders.

Let us return to Alexander Hamilton. Many praise Alexander Hamilton, who argued against a bill of rights, as one of the great abolitionists of his era. However even Alexander Hamilton directly participated and profited from the institution of slavery.

“Not only did Alexander Hamilton enslave people, but his involvement in the institution of slavery was essential to his identity, both personally and professionally,”
- Jessie Serflippi, As Odious and Immoral a Thing

So then this begs the question, how could you argue that the Constitution itself is a bill of rights and that the amendments were not needed when without an anti-slavery amendment, the Constitution did not protect the right of Black people to be free from enslavement and forced labor? The Thirteenth Amendment to the Constitution which federally banned slavery in the United States (except in prisons), was not passed until 1865. Before then, slavery was openly practiced in much of the United States, particularly the South. In other words, without an amendment explicitly outlawing slavery, the Constitution completely failed at protecting those rights of Black people; or more accurately, it succeeded in keeping them suppressed until then.

The Thirteenth Amendment outlawing slavery was, in fact, a concession given to Black people by the government, because if it were not given, the many slaves who had taken up arms against the racist Confederacy very well could have then turned against the also racist United States. It is undeniably progressive from both a perspective of historical materialism and basic human decency, as a concession, and any who would argue otherwise is not worth being taken seriously, let alone being called a communist.

However, the Thirteenth Amendment was not perfect, and it still enshrines slavery in prisons, hence the modern prison industrial complex, nor does it do anything to address the segregation and historic inequalities that were born from slavery. You could say this about many of the amendments. The Fourth Amendment enshrines the right to be free from unwarranted police searches of your home and seizure of your person, yet at the same time it protects the private property rights of the bourgeoisie. The Fourteenth Amendment enshrines the right of every male citizen to participate in state elections regardless of race, yet it has also been used to crack down on progressive labor reform (see: Lochner v. New York (1905) & Hammer v. Dagenhart (1918)). The bourgeoisie often attaches restrictions and limitations to the concessions it gives us so as to keep us in check, but that does not mean that the concessions we have gained have no value. Imagine a United States without any of these amendments, where private slavery is still legal, where the police can barge into your home at any time with no warning, and where Black men possess no right to universal suffrage.

In turn, while it is true that the Second Amendment allows for fascists and potential criminals (who keep in mind would have been armed anyway, see: Section 1 & Florida State Guard) to own firearms and organize their own militias, it is also a legal concession that allows the workers to both keep and bear arms, as well as to organize armed militias of trained and ready Red Army fighters. While it is true that no such Red Army exists today, it reflects a fundamental failure on the part of the currently existing “communist” parties that this has not been achieved in contemporary America when groups like the Black Panthers were able to be successful. Any vain attempt at gesturing about how we don’t have this yet or nobody is doing this, represents not a strategic retreat, but a surrender of armed revolutionary struggle by the American Party of Labor, which has a duty as a self proclaimed “communist” party to prepare for the revolutionary struggle.

While it is true that the bourgeoisie will always try to enforce its law in a way that favors bourgeois interests over proletarian interests, the Black Panthers still acted completely legally when they armed themselves to form cop-watching patrols. The bourgeoisie had to retroactively outlaw this with the Mulford Act. When in response, the BPP (completely legally) walked into the California State Capitol Building with firearms to protest the racist legislature. The following repression and unlawful detention of the protesters exposed the hypocrisy of the bourgeois state and would end up being the springboard that brought the Black Panther Party to international relevance, creating a powerful legacy that is still remembered by the American labor and civil rights movements even today.

In other words, we can use this hypocrisy of the bourgeoisie to our advantage, by exposing their lies. Admittedly, it feels like I am living out the plot of an evening sit-com, needing to explain something so elementary as the usefulness of reform and concessions in revolutionary politics to someone like Hari Kumar, whom is supposed to represent the American Party of Labor, an organization that claims to be a party that seeks to represent the “advanced” detachment of the working class. Then again, I suppose president Biden must seem like the most advanced continuation of Marxism-Leninism to somebody like Kumar.

Unlike Kumar and the APL, Red Spectre actually does its research. We, unlike these keyboard-sloths, take the time to read what the people that Kumar is blindly following actually said. Kumar bases his arguments on how the “founding fathers” ostensibly saw the constitution and interpreted it. In other words he chooses the antique interests of slaveholders and the bourgeoisie as represented by their purported intentions, instead of basing his arguments on the working people; which are actually alive right now, which are still being affected by the legislation drawn up by demagogues like Madison and Hamilton, who every single day are deprived of their rights to the very life, liberty, and pursuit of happiness that these reactionaries love to profess. In other words, Kumar chooses dead slavers over living, breathing workers.

Conclusion

Kumar’s article is nothing more than a stunted and incoherent babble. It is a rejection of the Dictatorship of the Proletariat, a rejection of the communist duty to arm the working class against the bourgeoisie. It is a capitulation to bourgeois legalism and constitutionalism. It is self contradictory, tying itself into knots. Kumar’s article when compared to the facts is completely base and empty. Like Kautsky, the high school history teacher, Kumar is facing backwards, unaware of the oncoming truck behind him. It is a voyeurism into the worst sort of Kautskyism, reformism, and Bidenite conciliation. Every line bleeds a complete absence of any ability to internalize Marxist theory, a complete abandonment of revolutionary principles. No matter from what perspective you look at it, it is completely absurd. It is so completely and utterly hollow, so unsalvageable, that the only value for the world it will ever generate is in its refutation.

Workers of the world, Unite!