3 months, 2 weeks ago
No, that’s not my preferred title, but the one used by 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.
Adam continues, “The idea that the Second Amendment gives people the right to revolt against government is broadly shared among gun rights extremists” (Adam is referring to people like me – Adam would have been a loyalist during the revolutionary war, I would have charged up King’s Mountain against the loyalist troops) … “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.”
Here Adam continues with the well-worn and tired claptrap about well-regulated meaning controlled by the state. Bob Owens has the must-read defeater argument on this, but since Adam won’t care about this I won’t spend time recapitulating what Bob says. Adam can continue to wring his hands and worry over things, and we can move on to one salient observation about Scalia.
I have long lamented what I perceive to be the weakness of Heller versus D.C. But perhaps Scalia really does understand that the Second Amendment has absolutely nothing whatsoever to do with hunting or self defense, and has everything to do with ameliorating tyranny. And perhaps Scalia knows that the Supreme Court had to bite this off in chunks. If so, this is a welcome evolution in Scalia’s thinking – at least as it pertains to what he feels free to say out loud.
And oh, by the way, the Hughes amendment was an unconstitutional obscenity.
UPDATE: Kurt Hofmann writes me, observing that: ” … Mr. Constitutional Law Professor is already lost, when he talks about any bill in the Bill of Rights giving rights. Besides, my position has always been that the Second Amendment does not protect “the right to revolt,” but protects the right to the means of effective revolt. When revolt becomes necessary, a Constitutionally protected “right to revolt” wouldn’t matter, even if there were one, because by then, the Constitution will no longer be relevant.” Good points.