Mike Kueber's Blog

January 12, 2013

The Second Amendment as a defense against government tyranny

As Vice-President Joe Biden prepares to submit his recommendations for a federal response to the Sandy Hook massacre, the internet is lighting up with all sorts of arguments for and against various possible prescriptions.   Cary Clack, a Facebook friend of mine who advises newly-elected Congressman Joaquin Castro, recently posted a Huff Post article about a loony gun advocate who believes slavery in America could have been avoided if slaves had been given the right to bear arms.  I chided Cary for disseminating crackpot arguments, but he probably thinks that if President Obama can engage in straw-man arguments, then Cary Clack can, too.

 I also suggested to Cary that there is another widely-circulated gun-control video that his friends would find a lot more interesting.  The video consists of a debate between TV commentator Piers Morgan and conservative pundit Ben Shapiro.  During the debate, Shapiro makes two interesting points:

  1. He accuses Morgan of using bullying tactics by unfairly asserting that all gun advocates don’t care about the killed kids of Sandy Hook.
  2. He claims that the Second Amendment applies primarily, not to hunting or self-defense, but rather to defense against government tyrants.

I had previously heard the government-tyrant argument by radio-talk hosts, but I didn’t remember that as being part of Justice Scalia’s opinion in D.C. v. Heller, so I decided to refresh my memory.  

The part of the Heller decision that I recalled focused on the right of individuals to defend themselves with a handgun in their home.  That was essentially the holding of the case.  But there is another part of the decision that I previously glossed over, and that confirmed Shapiro’s argument that our Founders adopted the Second Amendment as a defense against government tyranny:

  • That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.”
  • “The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric….  It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.”
  • “It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.”
  • “… it does not assure the existence of a ‘citizens’ militia’ as a safeguard against tyranny.”

Justice Scalia concludes his powerful opinion with the following paragraph:

  • Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Of course, even if the Second Amendment was established as a protection against government tyranny, the $64,000 question will be whether assault rifles (which can be fired automatically) or assault weapons (semi-automatic rifles) can be prohibited.  Scalia reserves that question for another day, but he does say:

  • We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
  • “Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’”

Well, semi-automatic AR-15s are the most popular selling rifle in America, so it will be difficult to find that they are not “in common use” or “not typically possessed by law-abiding citizens for law purposes.”  Furthermore, assault rifles like the M16 are commonly used by soldiers and would be in common use for civilians if the federal government hadn’t outlawed them.  But that thinking doesn’t stop Scalia for implying that the ban on assault rifles (those that can fire automatically) is constitutional:

  • It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

In my opinion, the Court will sustain the current ban on rifles than can fire automatically, but will toss out a ban on the most popular rifle in America.


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