A safeguard against government tyranny? Don’t expect a court to bite

January 30, 2013

Constitution Right to Bear Arms(Editor’s note: After last month’s massacre at Sandy Hook, Washington looks poised to create its first new gun control law in 20 years. Throughout the month of January, we’ll be looking at the history and current landscape of gun control and gun ownership laws.)

Week 1: A right to arms? The real purpose of the Second Amendment

Counterpoint: The Second Amendment was intended to codify an individual right to bear arms

Week 2: Was the Second Amendment intended to be used by or against the states?

Week 3: Would New York’s new gun restrictions withstand Supreme Court scrutiny?

Week 4: What were Obama’s executive orders on guns and are they constitutional?

Counterpoint: An individual right to assault weapons

As we’ve established at this point in the month’s series, the Supreme Court’s holdings in 2008’s District of Columbia v. Heller and 2010’s McDonald v. Chicago found that the Constitution’s Second Amendment enshrines an individual right to bear arms.

This individual right’s “central component” is “self-defense.”

This “self-defense component” is important to note since it provides the basis for the modern expression of Second Amendment rights.

In other words, the state may not prohibit the owning and carrying of firearms to such an extent that individuals are no longer capable of effective self-defense.

Although it’s important to note that the Court’s finding of “self-defense” as a “central component” of rights under the Second Amendment, the finding wasn’t at the exclusion of all other possible purposes of the Second Amendment.

With the possibility of new federal gun control legislation, specifically one banning assault weapons and high-capacity magazines, we are likely to see additional legal battles over gun ownership rights.

While opponents of new restrictions may claim that these new restrictions infringe squarely on the Second Amendment’s “self-defense” component, attorneys arguing any potential cases should know that there are certainly stronger arguments.

More to the point: would the Supreme Court buy the argument that a military-style assault rifle capable of firing 15 rounds per second is necessary solely for self-defensive purposes?

Unless citizens are suddenly faced with impending threats of invading armies of zombies, probably not.

So what other arguments would we expect?

For those of us exposed repeatedly to gushing defense of gun ownership rights on Facebook since the Sandy Hook massacre know, one of the most popular “purposes” of the Second Amendment is as a “safeguard” against “government tyranny.”

Here’s a bit more of an explanation of that “purpose”: gun ownership advocates argue that, should the government stray too far and cross the line into “dictatorship,” a well-armed citizenry would be able to – stated in the most sanitary language possible – correct the government’s course.

Even if things never get to that point, gun ownership advocates argue that a well-armed citizenry serves as a very effective deterrent to any possible government overreach (i.e. the government won’t want to risk any kind of power-grab when there are over 300 million civilian-owned firearms in the U.S.

If either of those arguments is presented in court, they will very likely be rejected, and here’s why:

First, there is absolutely no evidence that the U.S. government has ever seriously contemplated imposing a full-scale dictatorship, nor that the government would be, in any meaningful way, dissuaded from doing so because of an armed populace.

Further, it is just nonsensical to suggest that a group of armed citizens with little to no military training would be able to defeat the most well funded, well equipped, and well trained standing army in the history of humankind; if the government were ever truly scheming to institute rule by force (an incredibly far-fetched possibility), armed citizens wouldn’t stop it from executing its plans.

True, there are certainly practical limitations to a full-scale government takeover; however, an armed populace is definitely not one of them.

Second, in a country in which the rule of law is paramount to any one individual, the last thing that we should be encouraging is for individuals to take the law into their own hands.

Stated differently: who gets to determine when the government has “crossed the line” into tyranny?

What if a group of citizens feels that such is the case when democratically-elected representatives pass a health reform law that requires citizens to purchase private insurance, and decide to start an armed uprising?

A court would never advocate an interpretation of the Second Amendment that would sanitize such atrocious behavior as “constitutional.”

And such an interpretation is a complete antithesis to the very nature of the Constitution itself: that the law, not the gun, shall rule supreme in the U.S.

If the people want to change the government, they can do so at the polls, not through an armed uprising.

Some detractors may posit, “what if the government suspends elections?”

Certainly a possibility, but a possibility about as remote as zombie invasions (and courts would treat such arguments with similar disregard as arguments involving zombies).

Don’t believe me?

In Heller, the Supreme Court itself rejected the “odd” interpretations of the Second Amendment as being for “protect[ion of] the public liberty” and “keep[ing] in awe those who are in power.”

Consequently, barring the emergence of any novel arguments on the purpose of the Second Amendment, any new gun control legislation will only see defeat in court if someone can successfully argue that said laws substantially interfere with one’s effective self-defense.

I think we’ll be seeing hordes of zombies before that happens.