Scenario: a would-be tyrant issues executive orders calling for “patriotic” state agents to take “extraordinary measures” to defend the country from [insert your favourite bogeyman here]. As a result, the supreme court suddenly has some vacancies which are filled by similarly “patriotic” judges. Constitutional protections are subject to their rulings and case law quickly develops to permit “reasonable limits” on these protected rights. A careful strategy of jurisdiction and judge shopping quickly expands the limits contained in these binding supreme court decisions. By the end of the tyrant’s first term, your constitution is no better protector of your rights than was the constitution of the Soviet Union or any other dictatorship.
In Canada our constitutionally “protected” rights are already entirely subject to the whim of the Prime Minister. If his party holds a majority of seats in Parliament, which is possible to achieve with as little as about 30% of the vote, which translates into about 20% support from all eligible voters, he can use the “notwithstanding clause” (section 33) to enact whatever he wants, notwithstanding the fact that it violates these rights. Further, section 1 makes all rights subject to “reasonable limits” opening the door our supreme court often walks through to justify limits on basic individual rights to expand the power of the state and the special rights of politically powerful interests.
The idea that the right to bear arms is any protection against the state’s erosion of individual liberty flies in the face of two facts. One, the history of the state’s success in incrementally eroding these rights to the point where it can confiscate almost 50% of our property in taxes and tell us what we can do and not do with the other 50% and people still sing the praises of living in a “free country”. Second, the matchless firepower of the state vs the unorganized and mostly submissive population would (and does) make short work of any rebellion. The US, where this right is most strongly entrenched, falls far down the list of the freest countries in the world giving more support to the argument that this right is not an effective deterrent to the state.
The only effective protection for individual rights is the same as it’s always been, and it is weaker now than at any time in history, although it will not remain that way for long. That is, a frontier, an alternative, an escape. We’ve almost always been able to vote with our feet and simply leave an oppressive state. Europeans did when they migrated to the new world. Oppressed groups in America were able to flee to the west. Offshore tax havens allowed people to protect their property by taking advantage of states jealous of their sovereignty.
Increasingly, technological progress is enabling us to transfer more and more of our lives, economic and social, to the virtual world where the physical coercion upon which political power depends is difficult to exercise. Cyberspace is the new frontier. The state’s fear of a mass migration to cyberspace is the only real protection for our rights. Ultimately it will be our only refuge as history shows that state power only ever increases. But when the level of online economic interaction outside state control inevitably reaches a critical point, the state will collapse. Hopefully when the state system falls it will be like how the iron curtain fell and not in a manner that takes our technological civilization down with it. I am hopeful.