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The Second Amendment: Ramifications of Repeal

Posted in Law and Politics by Mike Sacks on January 10, 2011

The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A).  Indeed, just a few of hours ago, Elie Mystal at Above the Law went there.  The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.

The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.”  Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.

But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.”  And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government.  Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt.  See, e.g., the Whiskey Rebellion or the Civil War.

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it.  But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment.  In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass.  As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.

Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative.  Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result.  In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.

Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence.  Who gets to keep his or her guns?  What guns remain protected?  Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?

While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.

It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts.  But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

UPDATE: Josh Blackman responds.

UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)

UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.

UPDATE IV: Patrick J. Charles responds at his site, The Charles Law & History Blog.

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