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Behind Supreme Court case: Do gun rights protect against tyranny?

The US Supreme Court is considering what could be a landmark decision on individual gun rights. An unspoken argument is that armed citizens would make any usurper think twice before subverting the Constitution.

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Scalia drew a distinction between government-sanctioned militiamen and a broader “people’s militia,” which he said was the concern of the founding generation.

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These sentences have attracted significant interest and speculation from both sides of the gun rights debate.

Schreiber denounces what he calls “insurrectionist” arguments. “At no time has the Second Amendment been understood to protect a personal or private right of insurrection,” he wrote.

Schmutter cited history to support his contention that individual possession of arms is essential to preventing usurpation by the state.

Lessons from history

“During the 20th Century, more than 70 million people, after first being disarmed, were slaughtered by their own governments,” he wrote. “This pattern appeared in Ottoman Turkey (1915-1917), the Soviet Union (1929-1945), Nazi Germany and occupied Europe (1933-1945), Nationalist China (1927-1949), Communist China (1949-1952, 1957-1960, and 1966-1970, Guatemala (1960-1981), Uganda (1971-1979), Cambodia (1975-1979), and Rwanda (1994) just to name a few.”

He added: “The Second Amendment was created as the final barricade against the unthinkable – the day when the rest of our Constitutional safeguards have failed us and we stand exposed to the brutal reality that so many in history have understood only too late.”

The Anti-Defamation League approached the issue from a different perspective. In a friend of the court brief the organization worried that expansive gun rights might feed into what it said was a pervasive culture of guns and violence among extremists in the US.

What role for government control?

“It is imperative that nothing said in the decision of this case threaten the ability of federal, state, and local governments to address the daunting ‘on the ground’ challenges posed by trying to keep guns out of the hands of extremists, terrorists, and hate criminals,” wrote Leonard Niehoff in the Anti-Defamation League’s brief.

In a dissent in a 2003 gun case, Appeals Court Judge Alex Kosinski laid out his views on the Second Amendment and tyranny. “The simple truth – born of experience – is that tyranny thrives best where government need not fear the wrath of an armed people,” he wrote.

“If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars,” Judge Kosinski said.

“The Second Amendment is a doomsday provision,” he added. “One designed for those exceptionally rare circumstances where all other rights have failed – where government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”

IN PICTURES: The debate over gun rights

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