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.