UPDATE: Fifteen hours after the tweet cited in this article, President Trump tweeted:
Looting leads to shooting, and that’s why a man was shot and killed in Minneapolis on Wednesday night – or look at what just happened in Louisville with 7 people shot. I don’t want this to happen, and that’s what the expression put out last night means. It was spoken as a fact, not as a statement. It’s very simple, nobody should have any problem with this other than the haters, and those looking to cause trouble on social media. Honor the memory of George Floyd!
The president appears to now be claiming that he was not saying the law enforcement or National Guardsmen would be doing the “shooting,” but rather that it was being done by civilians. He seems to be, in the first instance, referencing the apparent killing of a looter by a store owner. In the second instance he references, seven people were shot by unknown assailants. If we put that claim (“It was spoken as a fact, not as a statement.”) into the original tweet we have:
“These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, [people get shot].”
Even with the clarification it is difficult to see how he could have been referring to anyone other than the “military” doing the shooting. The key sentence is, “Any difficulty and we [the military] will assume control but, when the looting starts, [people get shot].” Perhaps if he had said “because” instead of “but” the context might have referred to someone other than the military.
Did I misunderstand his meaning? Possibly, though when writing this article I did not see anyone—neither those who oppose the president nor those who support him—who did not assume he was referring to the “military” doing the “shooting.” Trump also tweeted six more times before he posted his clarifying tweets.
I believe it was reasonable, if not obvious, to assume the president was referring to the National Guard. That reading would be in keeping with prior statements he has made. For example, while a candidate, President Trump said he would order the U.S. military to kill innocent family members of terrorists. When it was pointed out to him that the military would be obliged to disobey because it was a war crime, he responded, “If I say do it, they’re gonna do it. That’s what leadership is all about.”
However, the president does seem to distance himself from this widespread interpretation of the original tweet. I think we should now give him the benefit of the doubt and assume that he won’t order deadly force against looters—and we should also assume that the U.S. military would not obey such an order if it were given.
Should we respond to the illegal use of violence with the use of illegal violence?
For Christians, the answer to that question should be obvious. But the responses to the recent riots and protests in Minneapolis and St. Paul reveal that we are more conflicted about the answer than we should be.
On one side are Christians who legitimize the illegal use of violence (the looting and rioting) as a valid response to the use of illegal violence in the apparent murder of George Floyd by a Minneapolis police officer. On the other side are those who believe that to quell the looting and destruction of property could necessitate the use of deadly force.
On this latter side stands the president of the United States. This morning, President Trump tweeted:
“These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts.”
In his tweet he referred to the “Military,” meaning the National Guard, which has already been deployed to Minneapolis and St. Paul. The National Guard is normally under the control of individual states and the state governor, who acts as commander in chief. But the president has the authority bring the National Guard under federal control for certain circumstances, including a “rebellion or danger of a rebellion against the authority of the Government of the United States.” National Guardsmen also swear an oath to support and defend the U.S. Constitution of the United States and agree to obey the orders of the president of the United States “according to law, regulations, and the Uniform Code of Military Justice, so help me God.”
Yet while Trump understands that he has the authority to “assume control” of the National Guard, he doesn’t appear to understand that he has no authority to order the military to shoot looters. Unfortunately, some Christians in America also fail to understand that fact—which could lead to unlawful and unbiblical use of violence.
Sphere Sovereignty and Submission to Authority
As Christians we are commanded by God through the apostle Paul to “be subject to the governing authorities, for there is no authority except that which God has established” (Rom. 13:1). The apostle Peter also tells us, “Submit yourselves for the Lord’s sake to every human authority: whether to the emperor, as the supreme authority, or to governors, who are sent by him to punish those who do wrong and to commend those who do right” (1 Pet. 2:13-14).
Obeying these commands is non-negotiable; understanding how they apply, though, is not always obvious. For example, we might ask who or what constitutes the governing or human authority to which we must submit.
Abraham Kuyper shed helpful light on this question in his concept of sphere sovereignty. Sphere sovereignty is the biblical idea that God has created human society to be formed into distinct spheres (such as family, church, school, state, business, and so on), each of which is sovereign in relation to the others, but subject directly to God under the divine laws particular to each sphere. Each sphere also has distinctive kinds of authority, limited to a particular sphere.*
We recognize that every individual and institution has a specific sphere of influence and sovereignty that is delegated by God. A teacher, for example, has both the authority over her classroom and also the responsibility to ensure that her pupils receive an education. Both authority and responsibility as a teacher, however, are limited to the school and cannot legitimately be extended outside that particular sphere. A public-school teacher, for instance, lacks the authority to come to your church and determine how Sunday school students will be educated.
Similarly, the president of the United States has authority and responsibility delegated by God (Prov. 8:15-16) and circumscribed by the U.S Constitution and other laws. This is an important point, because the president’s authority—delegated by both God and man—is limited to those powers authorized by the Constitution. This is essential context for understanding how we interpret the command to submit to authorities.
For much of human history, the dominant legal principle was rex lex—“the king is law.” In the 1600s, though, that view was reversed, mostly by Christian thinkers like Samuel Rutherford, who claimed lex rex—“the law is king.” Since then most Western governments have adopted the principle that the rule of law, rather than the arbitrary diktats of government officials, should govern a nation.
This understanding of the rule of law shows how we answer such questions as who constitutes a governing authority in the United States. How do we know who is a governing authority? We look to the law to tell us who has been legally appointed or elected as an authority. A person cannot merely claim to be a city mayor, a state governor, or a U.S. president and expect Christians to obey their presumed authority. We have to know they received their legitimate authority by a process that conformed to the rule of law. In America, lex rex.
Why Shooting Looters Is Illegal
According to the rule of law, President Trump is the duly elected president of the United States. In his role as president, he has authority to take command of the National Guard units in Minnesota. But he has no authority to order that all looters be shot.
The Army doctrine on defense support of civil authorities makes it clear that, “Soldiers may use lethal force if they or another person are in imminent risk of death or serious injury.” It also adds, “The decisions and actions of commanders and Soldiers must be ethically legal and morally right, in adherence to the established RUF and the Army Ethic.”
Unlike the president, many of those serving in the military already know, “Deadly force is not authorized to disperse a crowd, stop looting, enforce a curfew, or protect non-designated property.” But some Guardsman may genuinely believe Trump’s tweet is a valid order. In the military, a commanding officer’s statement of “I wish” or “I desire” means “I order you to do” whatever is the wish or desire. A public statement by the commander in chief to shoot looters may also be misconstrued as legally authorized order.
However, such an order, whether given directly or indirectly, would be illegal, since it violates the U.S. Constitution. Legal scholar Orin Kerr has noted that following the policy of “when the looting starts, the shooting starts” violates the Fourth Amendment. He cites the Supreme Court precedent in Tennessee v. Garner (1985), which clarifies that the use of deadly force against a suspect is only valid when there is a “significant threat of death or serious physical injury to the [police] officer or others.” As the Court said in their ruling:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
By implying he would have the National Guard shoot looters, President Trump risks violating the Fourth Amendment.* “Trump swore to protect and defend the Constitution,” Conor Friedersdorf says. “He just violated that oath. When he wrote ‘when the looting starts, the shooting starts,’ he implicitly urged law enforcement to adopt an approach that would transgress against the Constitution, violate Fourth Amendment rights, and cause unlawful deaths.”
In his tweet, President Trump implied he would use his legitimate and legal authority to order an illegal and illegitimate action. Any Christian in either law enforcement or the U.S. military should have no qualms about disobeying such an order. Indeed, we would have a moral duty to disobey such as an illegal order, for when the commands of a governing authority conflict with God’s commands, believers must follow the Lord (Acts 5:29).
* I’m unsure where this specific wording and definition of sphere sovereignty originated, but it was told to me in 2004 by my friend Gideon Strauss.
** Couldn’t President Trump be excused for not being aware of the law? No, he cannot. A common legal principle is ignorantia juris non excusat (Latin for “ignorance of the law excuses not”). This principle holds that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content. This long-held concept originated in the Bible: “If anyone sins and does what is forbidden in any of the LORD’s commands, even though they do not know it, they are guilty and will be held responsible” (Lev. 5:17).
Unlike the average citizen, President Trump swore an oath to “preserve, protect and defend the Constitution of the United States.” He also has literally thousands of lawyers at his disposal who could have told him his statement was not only illegal but also a violation as both his role as commander in chief and as the chief law enforcement authority in the United States.