Yesterday the justices heard and had many apparent opinions over what could possibly be the most important and far reaching Bill of Rights case in a very long time. The case in question is the District of Columbia’s 32 year old ban on handguns, which many critics don’t find successful and parties on both sides of the debate see as probably over reaching. According to some court watchers, “…a majority of justices appeared ready to say that Americans have a “right to keep and bear arms” that goes beyond the amendment’s reference to service in a militia.”
There are many possible interpretations to the amendment, but the one I hear the least often is probably the most important. When I drew up my conclusions on what the amendment meant back in high school government class, not even my teacher a former lawyer and damned smart legal scholar, had heard the interpretation. Most people I talked to about it, before the days of internet in every home, dismissed the idea. Never the less, I still hold firm to the belief that The Second Amendment is no less than the right of rebellion.
I came to the conclusion by examining The Bill as a single piece of work rather than ten separate amendments. When looked at as a whole, The Bill of Rights is a manifesto for the American Revolution put together after the fact.
The First Amendment gave legal legitimacy for the people to speak out by many means against the government. Without acknowledging that people had that right to freedom of express first and foremost, the leadership had no right to speak out against the English Crown, much less advocate revolution.
The Second Amendment legitimizes the revolution they declared they the right to advocate. The part of the constitution that seems to get modern scholars is what defines a militia. The second thing that gets ever constitutional scholar is must we always use the meaning of the words at the time they were written?
First, at the time of the drafting a militia was nothing more than what we think of as a private security force. It was hired and maintained by the local lairds, be they noble or simply the defacto leader(s) of the community. They however lacked official military standing, unless they were directly called into service by Military commanders, which was always an understanding between the government and the militia leaders. Evidence of this can be seen in many colonial records, where the militia was hired by the town to protect against Indians.
The answer to the second question is yes, we must always use the meaning of the words when they were drafted. Without keeping the original intent in mind, the rights our forefathers bestowed upon us are trivialized at best or meaningless at worst.
What does this mean for most of us? Nothing. Because most of us will never exercise the right to own a handgun, shotgun, or rifle, much less bow and arrow or anything else construed as arms, does not mean we should forget about the right to do so. With that in mind, if we have the right to rebel, then what defense does the government have?
The government has the right to try and put down any rebellion against it. If you have ever been part of the military or FBI phrases like “protect and defend,” “against all enemies, foreign and domestic” should ring in your ears. You have the right to rebel against the government, but you will become their enemy and they have reserved the right to put down your rebellion. If you still doubt that we have the right of rebellion and the government has the right to put it down, then ask yourself why leaders of the confederacy were not charged with treason during the civil war?
I don’t think a time will come when the average citizen ever feels the call to rise up against the government, but that in no way means I think we should be restricting our rights to form a private militia and do just that. Furthermore we don’t need to start restricting the second amendment to take care of those militias that do form every now and then, most of the time they violate so many other federal laws we just need to prosecute the laws we have to be effective.
On the other hand I am an avid reader of speculative fiction, and have no problem at all seeing any number of scenarios that cause Americans to rise up in arms against the government. One of the best books I have read of late with this scenario is America Libre by Raul Ramos y Sanchez I am planning on doing a review of the book on The Other Blog some time in the near future.
Two things: 1) Laws & constitutions change. A slavish devotion to the “original” text is no more legitimate than a fundamentalist’s slavish devotion to parts of the Hebrew Bible that, for instance, see homosexuality as a criminal offense.
2) The SCOTUS does indeed seem to be affirming your “right of rebellion” interpretation of the 2nd Amendment–what do you think of the argument that this interpretation leads logically to the idea that our right of rebellion would be best guaranteed by the right to own machine guns and howitzers, so: the more powerful the weapon, the greater right we have to own it.
Me, I feel I am being reluctantly driven to exercise my 2nd Amendment rights as a matter of self-protection. Given that every tinhorn fascist in the country’s in love with his piece. I’d rather live in a society in which weapons are tightly regulated. In any case, it’s worth noting the radical right’s affection for the 2nd Amendment in contrast to its, let’s say, dislike for the First.
To your first point we must maintain an interpretation of the constitution that heads its original meaning or the rights it spells out for us are nothing more than passing fashion statements based on the whim of the current language trend. If we want the constitution to mean something different than it was originally intended to say we need to do as you say and change it. Simply redefining a word to suit our fancy won’t cut it.
2)I actually agree the more powerful the weapon the greater right we have to own it. However the greater threat you become to the state the greater their right is to take you down. In an ideal setting the state would never jeopardize our rights as individuals so the need for rebellion would never exist.
As for the radical rights desire to exercise the second and quash the first, I would disagree with the second part. They quite like the first, it lets their idiots yell and scream about whatever they want. Tell them they have to make a choice between their guns or giving up neocon talk radio and I think you be surprised how many of them would Rush and Laura over Smith and Wesson.
Me I am just a liberal who knows the score…
…happiness is a warm gun