Tuesday, April 16, 2013

The Resurrection of Second Amendment Insurrectionism is "Ted Cruz Crazy"

By Mike Dorf

As I reported here, a few months ago I debated gun rights advocate Alan Gura about the future of gun regulation in the U.S.  During the course of that discussion, I stated that the Supreme Court's Heller decision embraces a view of the Second Amendment as protecting a right of armed self-defense but that the Court--like most of the gun rights movement itself over the last couple of decades--has largely abandoned insurrectionism as the basis for the right.  I nonetheless conceded that there is a pretty good historical case to be made for the insurrectionist theory of the Second Amendment--in my view a much better historical case than the historical case that the Heller majority makes for its self-defense theory.


For example, in Federalist No. 46, James Madison argues that the states need not fear a federal standing army because if the federal government were to become tyrannical, the state militias could defeat the federal standing army because of the states' superior numbers and the fact that the People have arms.  Federalist No. 46 actually talks about standing armies, which (notwithstanding the discussion in Heller) was really the main concern motivating the supporters of the Second Amendment, and it suggests insurrectionary theory quite neatly: Individuals get to keep their weapons, even when not called to muster, so that if the federal government becomes a new George III, they People can rise up.  In the 1980s and early 1990s, most of the serious pro-gun Second Amendment literature made this argument as the ground for protecting an individual right.

And as I said, insurrectionism provided a pretty good historical argument for the individual right view.  Its main problem was and remains the fact that permitting people to keep enough weapons to fight the modern federal government makes no sense.  Perhaps in the late 18th century, private arms ownership could be thought to be a bulwark against tyranny, but those days are long gone.  For one thing, Madison imagined that organized state militias, not private citizens in their private capacity, would fight the federal government, but at least since the Militia Act of 1903 placed state units of the National Guard under dual state/federal auspices, that has not been a remotely realistic prospect.  And private citizens stand no chance of defeating the federal armed forces in a real conflict.  Such self-appointed patriots do, however, have the capacity to cause real harm, as was demonstrated by the likes of Timothy McVeigh and the militia movement.

Thus, by the mid-1990s, the insurrectionist theory had largely receded from the public stage, even as the idea that the Second Amendment protects an individual right gained currency.  In this story, Justice Antonin Scalia (occasional hunting partner of former-VP-and-not-exactly-expert-marksman Dick Cheney) and Justice Clarence Thomas are the reasonable not-at-all crazy moderates among the people who think the Second Amendment protects an individual right.  Their linguistic gymnastics and historical reasoning in Heller may be suspect, but at least they are in service of a rational goal: the notion that people have a right to defend themselves against criminals.  Nobody on the Court in Heller endorsed the insurrectionist theory as a guide to the contemporary meaning or implementation of the Second Amendment.

But insurrectionism apparently never quite went away.  And by that I don't mean that it was still nurtured in the hearts of fringe lunatics like the guy in the dungeon scene from Pulp Fiction.  I mean that apparently the insurrectionist view was nurtured in the hearts of politicians who ought to be fringe lunatics but aren't.  Think of Sharron Angle talking about "Second Amendment remedies" or of Sarah Palin's amusing account of Paul Revere warning the British not to take away our arms.

Still, even if the insurrectionist view of the Second Amendment was out there, it wasn't apparent that it was informing actual policy, at least not apparent to me, until very recently.  It has been widely reported that not long ago even the NRA favored expanded background checks.  Perhaps that support was insincere or at best grudging--designed to ward off more serious regulation.  But the new normal, in which pro-gun-rights politicians oppose even closing loopholes in the system of background checks, is worth examining.

One of the main talking points against expanded background checks is best understood as a point against any background checks.  Senator Ted Cruz's recent statement on Hannity about sums it up:
Why is all this focus directed at background checks? The reason is because the Department of Justice has said the only way to implement what they want–universal background checks–is a registry, a federal list of every gun owner in America. And that would be wrong; it'd be unconstitutional.
Why might a national gun registry be unconstitutional?  One theory goes like this: Just as a "free speech registry" would violate the First Amendment by chilling speech, so a gun registry would violate the Second Amendment by chilling gun ownership.  A brief for Mr. Heller on remand after the SCOTUS ruled in his favor on DC's ownership restrictions made just this point.  The district court rejected it and so did the DC Circuit in a 2011 opinion, but there was a dissent by Judge Kavanaugh, in which he accepted a version of the argument.  He said that the SCOTUS decision in the 2008 version of Heller required a historical test and that the type of registration requirement that DC now has fails that test because it is so much more encompassing than what was known at the Founding (and is also more encompassing than registration requirements in other U.S. jurisdictions today).  The case is now back in the district court and so we won't know for some time whether the SCOTUS will sustain even DC's registration requirement, much less a national firearms registry.

Interestingly, neither the Second-Amendment-is-no-different-from-the-First-Amendment view nor the Heller-says-look-at-tradition view specifies a normative reason why a registration requirement would be problematic.  But to make sense of either view--or of any other explanation that might plausibly be advanced for invalidating a registration requirement--you pretty much need to rely on insurrectionism.  Let me try to explain why.

We can imagine a registration requirement that is so onerous that registration itself is a barrier to gun ownership.  A very high registration fee would be an example.  So would a system in which there are very substantial delays in accessing the firearm while the government processes the registration paperwork.  Judge Kavanaugh's dissent does not say that the DC registration system is onerous in either way.  He doesn't say it's onerous at all.  What he says is that it's unprecedented in its scope and thus outside the Heller exception for longstanding regulations.

In the policy domain, gun-rights advocates fear that gun registration--like any regulation--could be one step along a slippery slope towards further, more onerous regulation.  But that doesn't work as a constitutional argument: If gun registration is on the permissible side of the line, but one worries about more intrusive regulations, then one can count on the courts to strike down those more intrusive regulations if and when they're enacted.  The flaw in the slippery slope reasoning here calls to mind what Justice Oliver Wendell Holmes, Jr., said in the Panhandle Oil case in 1928 in explanation of CJ Marshall's 1819 statement in McCulloch v. Maryland that "the power to tax involves the power to destroy."  Holmes persuasively wrote:
The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to destroy if unlimited, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. A tax is not an unconstitutional regulation in every case where an absolute prohibition of sales would be one.
Likewise with guns.  If gun registration is the first step on the road to regulations that would violate the Second Amendment, there is time enough for the courts to invalidate those later steps, without any need to invalidate gun registration.

UNLESS the fear is that the federal government will create a national gun registry through lawful means, but then later turn tyrannical and use unlawful means--including ignoring or shutting down or packing the courts--to confiscate guns.  And so, just at the very moment when THE PEOPLE would need their guns to rise up and make war on the tyrannical federal government, that same government would be using its national gun registry to hunt down just those most heavily armed patriots--or worse, confiscate their weapons just before "coming out" as fully tyrannical.

If that's the worry, then yes, an insurrectionist account of the Second Amendment makes a national gun registry unconstitutional.  

How crazy is the insurrectionist view that appears to be driving the opposition to expanded background checks, for fear of a national firearms registry, for fear of a totalitarian federal government?  It's so crazy that even Justice Scalia, writing in Heller, acknowledged that modern circumstances had severed the substantive protections of the Second Amendment from their original militia purpose, and by modern circumstances, he meant the preposterousness of insurrectionism.  He said that "our standing army is the pride of our Nation" and stated (earlier in the opinion) that "it may be true that no amount of small arms could be useful against modern-day bombers and tanks."

The makers of both the 1984 original and the 2012 remake of the dreadful right-wing paranoid fantasy Red Dawn films disagreed with Justice Scalia about the latter proposition.  They thought that lightly armed teenagers could defeat, respectively, invading Soviets and North Koreans armed with a sci-fi super-weapon.  And in the original, the Russians get a head-start on their occupation by using a federal proto-registry of firearms to track down Americans with guns.  But even these cinematic red-baiting provocateurs didn't think to portray the United States government itself as the gun-confiscating enemy of freedom.

Yup, that's how crazy the resurrection of the insurrectionist account of the Second Amendment is, when offered as a reason for resisting expanded background checks: It makes Red Dawn look almost sane and the Scalia/Thomas wing of the Supreme Court look downright moderate.  This particular brand of the insurrectionist view of the Second Amendment is so crazy there ought to be a new term for it.  In an homage to the Jonathan Coulton song "Tom Cruise Crazy," it seems to me that the best way to describe the view is to say it's not just crazy, it's Ted Cruz crazy.

30 comments:

Shag from Brookline said...

"Cruz-Uncontrolled"

In dissents, Justice Scalia expresses concern with the "slippery slope" that may result from decisions of the majority. In Heller, Scalia made an effort to pre-empt "slippery slope" arguments with his dicta. Alas, there are vociferous Second Amendment absolutists out there exercising their First Amendment (speech/press) absolutist rights to trump the latter with the former. Query: Is "Shoot first and ask questions later" the equivalent of "no prior restraint on speech"?

egarber said...

If we don’t want an open-ended registry, why not write the law in a way that requires a court order before law enforcement is able to examine purchase records? I’m guessing that’s how the federal background check already works (though I could be wrong).

For another parallel, the right to property is fundamental in many ways, and second amendment advocates tend to showcase it on the basic liberties list. Yet the government tracks key information about it, in a variety of contexts. So I would pose that there might be a reverse slippery slope: if it’s illegal for the government to ever have access to information in the second amendment space, what does that imply for other areas?

If the distinction rests on the inherent right to “resurrect”, that also creates a slippery slope, no? After all, if we have the right to overthrow the government, it seems we must also retain the means. So I’ll be going to Walmart to buy a rocket launcher after work.

Joe said...

Realistically, long term, an armed citizenry does have a chance against the modern military. Millions of people with guns does change the dynamics. I think the discussion overplays its hand there.

Also, yes, the concern is that registration will lead to gun seizures. No need to draw it out; that is the visceral concern.

The real problem there would be the actual seizure or not keeping records in a private enough way. Since guns can get in the wrong hands and people can have their status changed so that their 2A rights change (be convicted, found to be a domestic violence offender, have mental problems), registration seems appropriate.

The 1A in not the same. We don't regulate books and guns the same way. Five year olds get books out of the library. Do they have freedom to use guns?

The original insurrectionist view btw was tied to states -- state militia would guard against federal power. The 1792 Militia Act required militia members to actually have certain weapons. Wouldn't it be reasonable to keep track of such things?

A. said...

Interesting to consider (perhaps in a conlaw exam) whether the absorption, by federal statute, of state militias was an unconstitutional violation of principles of federalism and perhaps, in a backdoor way, of the penumbras and emanations of the second amendment.

Joe said...

Good question.

Also, modern police -- unconstitutional select militia?

http://www.constitution.org/lrev/roots/cops.htm

Shag from Brookline said...

Did any state directly challenge " ... the absorption, by federal statute, of state militias ... " as unconstitutional? What was Congress' constitutional basis for such absorption? SCOTUS addressed such absorption in the 1918 Cox v. Woods and The Selective Draft Law Cases. Query whether the Court addressed the Second Amendment in connection therewith as "amending" that Amendment's militia clause without going through Article V? Should the tail wag the constitutional dog? It seems that the Constitution in circular fashion permitted such absorption, even to overcome an effort by a state to create a militia. Manifest Destiny had its costs.

A. said...

Also, why do we assume it's bonkers or irrational to think that there's no basis in reality for an insurrectionist view in current terms? While it may be impossible for Joe Citizen to OUTGUN the world's best army (unlike in 1800), it is hardly obvious that Joes-Citizen couldn't be at least as disruptive to a hypothetical federal tyrant as, say the Afghanis have been to our attempts to pacify their lands.

Resistance, we have learned at great cost, is not about pitched, open battle, but instead about guerilla tactics and a warrior class that seamlessly returns into a civillian class by the time a counterattack can be mounted.

Seeing things this way, it's hardly preposterous to imagine a nation of armed civillians, benefitting further from the natural hesitancy of an armed force to use bombs and heavy weapons against compatriots in their own cities, mounting an effective resistence to federal force.

A. said...

And taking that view seriously would possibly have permitted a Court in Heller to be more faithful to apparent history of the 2nd Amendment(as Mike seems to acknowledge). They could even have done that while still holding that the right is individual in the sense that individuals have the right to the arms necessary to form insurrectionist militias not created by the States themselves.

The challenge then would have been to craft the persuasive but necessary limitation on the right of potential citizen-insurrectionists to own the kinds of heavier arms more useful in an actual revolution.


Bob Hockett said...

Thanks a million, Mike - this is an absolute tour de force, by far the best thing I've read to date on the latest turns in the gun rights debate.

A quick thought: As a teen I was attracted to absolutist arguments as are many who haven't yet lived. Hence, even though I had no guns or interest in guns, I would argue that the law should not impede gun ownership, but simply penalize those who broke laws with their guns. (A variation on the 'guns don't kill people, people do' claim, rooted in a view of responsibility and the law's proper relation thereto.)

A friend who was no older but much wiser than I was then asked me whether my argument meant that citizens should be permitted to own RPGs. How about tanks, jet fighters, ICBMs? It didn't take long to see his point and then agree that the real question was not whether lines must be drawn, but where they should be drawn.

Against this backdrop, what I suppose is most disturbing about the revival of the insurrectionist view is that it offers gun rights enthusiasts a seemingly history-vindicated, absolutism-retaining reply to my wise teenage friend. 'Yes,' they will say in reply to his Socratic question, 'we need nuclear weapons as well so as to balance the power of our potentially tyrannical state.'

If we start hearing rejoinders like that one, 'Ted Cruz Crazy' will become 'Cruise Missile Crazy,' and Lord help us then.

Michael C. Dorf said...

Both Joe and A suggest that lightly armed civilians could outlast an organized force. Well, maybe, but much depens on the meaning of "lightly armed." As Justice Scalia notes, the sorts of weapons that were in common use for personal protection circa 1791 were the same as those for military use (perhaps setting aside cannon). If one were to give effect to the insurrectionist strand of the 2nd Am (which, as I conceded, has some historical grounding), then bans on RPGs and IEDs are invalid. The only way I see out of that conclusion if one goes down this road is via the "common use" criterion, but this is circular.

Bob Hockett said...

I suppose it was inevitable that the Afghani example would come up. Seems to me that's an excellent case study of why we ought NOT buy the insurrectionist rationale any longer. It's just not practically sustainable today in the way that it might have been circa 1787. Either it forces the armed forces to be no better armed than their small-arms-keeping fellow citizens, or it allows the latter to stockpile nuclear weapons in cave caches and basements. And the Constitution, as we are sometimes reminded, isn't a suicide pact - or a nostalgia cult.

A place where folk routinely take arms into their own hands is a place where folk routinely take the LAW into their own hands. I think we'd all rather keep it in all of our hands together, via political participation per which we must persuade rather than threaten each other, than let it devolve into warlords' impatient hands.

On the relation between original understanding and subsequent history here, I think there's a partial analogy we can draw to the Commerce Clause. Justice Thomas sometimes seems to elide, from the fact that the original understanding of the CC was predicated on a situation 'on the ground' per which intrastate commerce dwarfed interstate commerce, to the claim that we now ought to read the CC in a manner that KEEPS things that way - keeping the US, in effect, in a state not unlike that which prevails to this day in the EU. The more sensible option, it seems to me, is to recognize that facts on the ground simply have changed over time in a manner that can't but affect the reach of the Commerce Power - partly owing, indeed, to the success of the CC itself in underwriting the integration of a national market. State prerogatives simply must dwindle through time relative to federal prerogatives. In a way, things are similar in respect of the 2A. The Tocquevillian culture of liberty that it both reflected and for a time perhaps fostered has brought us to a state in which liberty now is protected via a much more inclusive participatory democracy, all while facts on the ground have changed in a manner that cannot but affect the scope of 2A rights. Individual, like state prerogatives must in some respects lessen, even while in other respects growing, in relation to federal ones. The analogy's anything but air tight, but there's something to it, I think. The Constitution's an imbecility pact (in the Hamiltonian sense) if we read it to hypostatize the balance of inter- and intrastate commerce to where it was circa 1787; and it's a suicide pace if we read it to hypostatize the balance of individual and federal firepower to where it was circa 1787 as well.

Joe said...

"bans on RPGs and IEDs are invalid"

There is not some "anything goes" necessity if the insurrectionist aspect of the 2A is in some fashion valid. Torture is not allowed if there is a "need" for it. IEDs can be against legitimate rules of war.

Anyway, they are "improvised" and their justified use very well might be akin to determining Washington was legit on the battlefield. The same for RPGs. They can be deemed too dangerous to be allowed in normal times.

Vietnam is a case in point where light arms won out in the end. The U.S. could have nuked them. But, that is one check -- if only bombing and killing thousands of people will stop those millions with guns, it takes a special level of tyrant to be willing.

And, long term, as seen in Afghanistan and so forth, controlling a populace is not just about overwhelming them. They can chip away at you bit by bit.

Anyway, I'm not blithely accepting the argument -- just noting there is something there. Police act differently when the community is armed. If a lawless police officer tries to break in, there is an "insurrectionist" final option, if your life depended on it.

And, the Civil War changed things, including the 14A, which as McDonald itself said, changed to dynamic some. It is more an individual right now, not tied to state militia though some understanding of how it isn't just that, that it is both a right and responsibility is important too.

t jones said...

"Think of Sharron Angle talking about 'Second Amendment remedies' or of Sarah Palin's amusing account of Paul Revere warning the British not to take away our arms."
To which you could add Senator Graham's belief that he needs his AR-15 to protect his family and his business(?) from rioting minorities (http://tv.msnbc.com/2013/01/31/lindsey-graham-his-ar-15-and-the-rodney-king-riots/).
Which is probably a common (though more commonly unspoken) reason for the visceral opposition to gun control.

Shag from Brookline said...

Can we now add "Resurrection" to my observation at Balikinization a while back:

"Yes, let's Restore that lost Constitution, Rehabilitate and seek Redemption, the current 3-Rs of constitutionalism."

Does terrorism lead to Resurrection, or vice versa? Let us pray (prey?).

Paul.K said...

it wasn't apparent that it was informing actual policy, at least not apparent to me, until very recently. It has been widely reported that not long ago even the NRA favored expanded background checks. Perhaps that support was insincere or at best grudging--designed to ward off more serious regulation. But the new normal, in which pro-gun-rights politicians oppose even closing loopholes in the system of background checks, is worth examining.

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A very high registration fee would be an example. So would a system in which there are very substantial delays in accessing the firearm while the government processes the registration paperwork. Judge Kavanaugh's dissent does not say that the DC registration system is onerous in either way. He doesn't say it's onerous at all. What he says is that it's unprecedented in its scope and thus outside the Heller exception for longstanding regulations.fifa coins  elo boost  cheap fut coins  lol elo boosting

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