Behind Supreme Court case: Do gun rights protect against tyranny?
More than 10,000 words were spoken during this week鈥檚 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鈥檚 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鈥檚 second gun rights landmark decision in as many years.
IN PICTURES: The debate over gun rights
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鈥檚 constitutional framework.
Founders' intent with Second Amendment
鈥淭he Second Amendment 鈥� stands as the Founding Fathers鈥� 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,鈥� wrote Daniel Schmutter in a friend of the court brief on behalf .
Mr. Schmutter said the Second Amendment is 鈥渢he very last line in the defense of American liberty.鈥�
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 鈥渢yranny.鈥�
How to define 'tyranny'
鈥淚n a world in which 鈥榯yranny鈥� 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,鈥� wrote John Schreiber in a friend of the court brief on behalf of the .
鈥淭he Framers plainly did not envision ad hoc groups of armed individuals beyond state control (i.e. a 鈥榗itizens鈥� militia鈥�) as a constitutional check on tyranny,鈥� Mr. Schreiber wrote. 鈥淭hey saw them as unruly mobs that must be quelled.鈥�
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鈥檚 2008 ruling striking down Washington, D.C.鈥檚 handgun ban.
鈥淚f 鈥� 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鈥檚 guarantee 鈥� it does not assure the existence of a 鈥榗itizens鈥� militia鈥� as a safeguard against tyranny,鈥� Justice Scalia wrote.
Scalia drew a distinction between government-sanctioned militiamen and a broader 鈥減eople鈥檚 militia,鈥� 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 鈥渋nsurrectionist鈥� arguments. 鈥淎t no time has the Second Amendment been understood to protect a personal or private right of insurrection,鈥� 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
鈥淒uring the 20th Century, more than 70 million people, after first being disarmed, were slaughtered by their own governments,鈥� he wrote. 鈥淭his 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.鈥�
He added: 鈥淭he Second Amendment was created as the final barricade against the unthinkable 鈥� 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.鈥�
The 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?
鈥淚t is imperative that nothing said in the decision of this case threaten the ability of federal, state, and local governments to address the daunting 鈥榦n the ground鈥� challenges posed by trying to keep guns out of the hands of extremists, terrorists, and hate criminals,鈥� wrote Leonard Niehoff in the Anti-Defamation League鈥檚 brief.
In a dissent in a 2003 gun case, Appeals Court Judge Alex Kosinski laid out his views on the Second Amendment and tyranny. 鈥淭he simple truth 鈥� born of experience 鈥� is that tyranny thrives best where government need not fear the wrath of an armed people,鈥� he wrote.
鈥淚f 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,鈥� Judge Kosinski said.
鈥淭he Second Amendment is a doomsday provision,鈥� he added. 鈥淥ne designed for those exceptionally rare circumstances where all other rights have failed 鈥� 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.鈥�
