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.
More than 10,000 words were spoken during this week’s historic oral argument over gun rights at the US Supreme Court. But one potentially significant word was never uttered during the hour-long session: tyranny.
Long a focus of debates between gun control advocates and gun rights supporters, the issue was not discussed by lawyers attacking Chicago’s ban on handguns or the lawyer for the city defending local gun regulations. No member of the court mentioned it either. (Monitor analysis of the Chicago case here.)
But the idea is there, just below the surface of what analysts expect to become the high court’s second gun rights landmark decision in as many years.
The basic contention of many gun rights advocates is that the Second Amendment was designed to preserve a large, well-armed, and highly proficient community of gun owners that would make any usurping politician or military commander think twice before attempting to subvert the nation’s constitutional framework.
Founders' intent with Second Amendment
“The Second Amendment … stands as the Founding Fathers’ clear and unmistakable legal statement that an armed citizenry is the bulwark of liberty and provides the fundamental basis for law-abiding Americans to defend themselves, their families, their communities, and their nation against all aggressors, including, ultimately, a tyrannical government,” wrote Daniel Schmutter in a friend of the court brief on behalf Jews for the Preservation of Firearms Ownership.
Mr. Schmutter said the Second Amendment is “the very last line in the defense of American liberty.”
To gun control specialists this argument is deeply troubling. They worry that any armed person with a beef against the government will look to the Second Amendment for encouragement to lock and load and then rain down armed force in the face of what he or she perceives as “tyranny.”
How to define 'tyranny'
“In a world in which ‘tyranny’ means many different things to many different people, it is of paramount importance that the court choose its words carefully when discussing just what is, and what is not, protected by the Second Amendment,” wrote John Schreiber in a friend of the court brief on behalf of the Educational Fund to Stop Gun Violence.
“The Framers plainly did not envision ad hoc groups of armed individuals beyond state control (i.e. a ‘citizens’ militia’) as a constitutional check on tyranny,” Mr. Schreiber wrote. “They saw them as unruly mobs that must be quelled.”
Although it was not discussed during oral argument in the Chicago case, Justice Antonin Scalia addressed the issue briefly in his majority decision in the high court’s 2008 ruling striking down Washington, D.C.’s handgun ban.
“If … the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia [and] the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee – it does not assure the existence of a ‘citizens’ militia’ as a safeguard against tyranny,” Justice Scalia wrote.
Scalia drew a distinction between government-sanctioned militiamen and a broader “people’s militia,” which he said was the concern of the founding generation.
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.”