Justice Scalia Goes Gun Crazy

In a recent speech Supreme Court Justice Antonin Scalia said that the Second Amendment was in part the right to revolt against tyranny. That’s just a plain wrong and dangerous view, writes Adam Winkler.

America has more than its fair share of extremists who believe people need to stock up on guns to fight against tyrannical government in Washington.Add one more to the list: Supreme Court Justice Antonin Scalia. In a speech in Montana on Monday, the jurist was asked about the Second Amendment and what arms were protected by that provision of the Constitution. That “remains to be determined,” he replied. As one example, he asked if people have a right to “bear shoulder-fired rocket launchers?” Perhaps they do, Scalia suggested. The answer would turn on the historical understanding of the Framers, who Scalia said included the Second Amendment in part to preserve the right of people to revolt against a tyrannical leader.

Five years ago, in a case called District of Columbia v. Heller, Justice Scalia, writing for the majority, said that the core of the Second Amendment was personal self-defense. The arms protected, he wrote, were those that are in common use for lawful purposes, like handguns. Perhaps four-and-a-half years of living under President Barak Obama—you know, that socialist from Africa who’s bent on destroying America—has convinced Scalia that Americans need a right to far more powerful weapons. If the Second Amendment guarantees a right to revolt against the government, then surely Scalia’s question about shoulder-fired rocket launchers isn’t so hypothetical. Americans would need such rocket-launchers—along with fully-automatic machine guns—to have any reasonable chance of success against the military’s weapons. Handguns aren’t going to cut it against Obama’s drones, stealth fighters, and other high-tech, high-powered weapons.

The idea that the Second Amendment gives people the right to revolt against government is broadly shared among gun-rights extremists. And, indeed, the Framers were armed revolutionaries who understood that guns were useful for throwing off the yoke of tyranny. No doubt they believed that an armed citizenry would make it difficult for a tyrannical ruler to run roughshod over the people. But that’s not why they put the Second Amendment in the Constitution.

The Constitution was intended to be a charter of government, not a recipe for revolution. It was, as the legendary Chief Justice John Marshall said of the Constitution in 1819, “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” The Framers thought the Constitution itself, with its division of powers, reliance on popular sovereignty, and judicial oversight, would prevent tyranny from ever arising. The Framers had the humility to recognize that this charter of government may prove flawed. Yet the mechanism for changing it was the amendment procedures of Article V, not a revolution through the Second Amendment.

The insurrectionist understanding of the Second Amendment fails to account for two other features of the Constitution. First, the Second Amendment itself includes a preamble referring to the necessity of a “well-regulated militia.” Contrary to the views of some gun-control advocates, the militia referred to was not the National Guard. As Scalia correctly explained in the Heller case, the framers thought we, the common people, were all part of the citizens militia. Nonetheless, as part of that militia we must be “well regulated.” While there are genuine debates about what types of regulations are permissible under the Second Amendment, there is no doubt that the Framers thought that those regulations of the militia would come from the government. So how can the Second Amendment be read to provide a right to revolt against the government?

If there was any doubt about the government’s power to regulate gun owners—that is, the militia—that should be put to rest by Article I, Section 8. That part of the Constitution gives Congress the authority “for organizing, arming, and disciplining, the militia.” A militia rising up against Washington, however, is hardly one that is disciplined. Moreover, that same section of the Constitution explicitly provides that Congress shall have the power of “calling forth the militia to … suppress insurrections.”

In other words, the Framers believed the militia would put down revolutions, not engage in them. Unfortunately, Justice Scalia, that acclaimed lover of originalism, seems to be taking his cues from the Tea Party rather than from the text and history of the Constitution.