By John Daniel Davidson
Monday, June 20, 2016
Last week, Rolling
Stone published an article by David S. Cohen, a law professor who thinks
the Second Amendment should be repealed. “The Second Amendment needs to be
repealed because it is outdated, a threat to liberty and a suicide pact,”
writes Cohen. “When the Second Amendment was adopted in 1791, there were no
weapons remotely like the AR-15 assault rifle and many of the advances of
modern weaponry were long from being invented or popularized.”
In the wake of the Orlando massacre, Cohen reasons, “now
is the time to acknowledge a profound but obvious truth—the Second Amendment is
wrong for this country and needs to be jettisoned.”
This isn’t the first time liberals have mused out loud
about whether the Second Amendment is really necessary, or whether it really
means individuals have a right to own guns. But tragedies like Orlando seem to
revive all the old arguments. Not that commentators are very knowledgeable
about the weapons they’d like to ban. An AR-15, for example, can’t fire 700
rounds per minute, nor can any guy who’s taken a shop class modify a
semi-automatic rifle into a fully automatic in five minutes, as Michael Moore
seems to think.
But even if an AR-15 only fires once every time you
squeeze the trigger, even if it can’t be easily converted into an automatic,
just taking the rifle for what it is, liberals want to know: who needs a gun
like that? How many rounds do you need to be able to fire per minute to kill a
deer, or ward off a burglar? Does anyone really need a 25-round magazine? Isn’t
the only reason for such firepower to make killing people as efficient as
possible? Isn’t this a weapon of war? Why would American civilians need to own
weapons of war?
The Second
Amendment Guarantees the Right of Revolution
Turns out, that’s precisely the right question to ask.
The Second Amendment, after all, doesn’t recognize our right to hunt deer or
protect ourselves from criminals. Owning guns certainly makes doing those
things easier, but it’s not why the Founders bothered to codify gun rights.
They were getting at something else—the right of revolution.
Simply put, the purpose of the Second Amendment is to
give the people the means to overthrow the government in the event it becomes
tyrannical.
Most gun control advocates scoff at this. Indeed, it’s an
argument that even some conservatives are hesitant to make. How could the
people, armed with rifles and pistols, overthrow the government? On its face,
it seems absurd.
More on that in a minute. But first, consider that the
Second Amendment is unique among the amendments enumerated in the Bill of
Rights because it contains a kind of explanatory preamble: “A well regulated
Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”
Edward J. Erler, a political science professor at
California State University, San Bernardino, and an expert on the Second
Amendment, has argued that the right of revolution is asserted in the
Declaration of Independence, which states that governments derive their “just
powers from the consent of the governed”—not every power, only “just powers,”
which the people delegate to a government that is by definition limited to the
purposes for which it was established, “the Safety and Happiness” of the
people. Furthermore, the Declaration states that “whenever any Form of
Government becomes destructive of these ends, it is the Right of the People to
alter or to abolish it, and to institute new Government.” Erler says this is
what has come to be known as the right of revolution,
an essential ingredient of the
social compact and a right which is always reserved to the people. The people
can never cede or delegate this ultimate expression of sovereign power. Thus,
in a very important sense, the right of revolution (or even its threat) is the
right that guarantees every other right. And if the people have this right as
an indefeasible aspect of their sovereignty, then, by necessity, the people
also have a right to the means to revolution. Only an armed people are a
sovereign people, and only an armed people are a free people—the people are
indeed a militia.
In recent years an argument has become popular on the
American Left that the Second Amendment means only that a “well regulated
militia” has the right to bear arms, not individuals. The idea is that, say,
the State of Texas can form a militia and arm it accordingly, but individual
Texans have no inherent right to the private ownership of firearms.
In 2008, the U.S. Supreme Court repudiated this idea in
the case of District of Columbia v.
Heller. The late Justice Antonin Scalia wrote the opinion for the majority
and quoted Blackstone’s Commentaries on
the Laws of England, which recognizes “the natural right of resistance and
self-preservation.” Scalia insisted that the Second Amendment acknowledges
rights that predate the Constitution, such as the right of revolution.
But Erler argues that Scalia “was wrong to imply that
Second Amendment rights were codified from the common law—they were, in fact,
‘natural rights,’ deriving their status from the ‘Laws of Nature and of
Nature’s God.’… Like the right to revolution, the right to self-defense or
self-preservation can never be ceded to government.”
In Case of Civil
War, Americans Need to be Armed
So what does this mean in practice? Are we to conclude
that the Founders imagined a day when civilians armed with AR-15s and Glocks
might one day march on Washington DC if the government ever became tyrannical?
If the Second Amendment guarantees our right to the means of revolution, does
that mean civilians should also be allowed to own tanks and artillery?
Not quite. The Founders thought standing armies were a
threat to liberty, which means they surely would have thought that standing private armies constituted the same
threat. Self-preservation and self-defense might be natural right, but even in Heller the Supreme Court indicated that
there could be reasonable limitations on gun ownership.
To answer the scoffers on the Left, though, imagine what
an American revolution—the exercise of first principles—might look like in the
twenty-first century. The government, or a branch of it (most likely the
executive) becomes destructive to the ends for which it was established. It
tyrannizes the people, takes their property, deprives them of their rights,
destroys their lives. A revolution, or an abolishment of that government, would
likely not be a civilian undertaking but a military one. Working in conjunction
with other branches of the federal government and perhaps some state
governments, the military would effect a coup
d’état.
It would likely be a kind of civil war, and civilians
would likely be caught up in it at some point. Perhaps they would form local
militias to defend their homes and businesses. Perhaps they would volunteer
their services to military commanders or state police forces. Perhaps they
would simply want to ensure the safety of their families.
To do any of that, they would need to be armed. Just as
the Founders envisioned.
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