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The Second Amendment and Tyranny

16 Jan

Tyranny is defined generally as oppressive, absolute power vested in a single ruler. The United States cannot, by definition, be tyrannical because it is a representative democracy where you have the right to overthrow any person or party every two, four, or six years – depending on the office. Your recourse is political action and being enfranchised to vote, organize, and petition. 

When the 2nd Amendment was drafted, the United States did not have a standing army – because of our experience with our British oppressors, America was decidedly hostile to the idea of a standing army.  As a result, our new nation depended on amateur on-call militias; Switzerland still uses this model wherein only 5% of its military is made up of professionals, while the militia and reserves are made up of able-bodied men aged 19 up to their 30s and 40s.  Because these people are members of a reserve militia, they keep and own their own military equipment. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. 

But we long ago reconfigured our domestic military structure to switch from state-based reserve militias into a professional national military. To the extent the old state militias exist, they’re made up of the various National Guards. We don’t call upon average citizens to keep arms to fight off the Indians or the British; we have the Pentagon. 

If you look at the two recent Supreme Court cases which held that the “well-regulated militia” language, which was so carefully inserted into the 2nd Amendment of the Constitution, doesn’t really mean anything. Astonishing, that, but little can be done about it. In DC v. Heller , the Court affirmed an individual right to possess a firearm without respect to whether the bearer is a militia member, and that these arms can only be possessed for lawful purposes, such as self-defense. 

Heller also confirmed that your 2nd Amendment rights are not absolute or unlimited. Concealed weapons can be banned by states, you can limit their possession by felons and the mentally ill, and you can ban carrying a weapon in certain areas and regulate the sale of weapons. Particularly dangerous and unusual weapons can also be regulated or banned.  Although Heller applied only to federal districts, a subsequent case – McDonald v. Chicago – held that the 14th Amendment ensures that the 2nd Amendment and its jurisprudence also apply to state action. 

Because handguns aren’t unusual, and the petitioner in Heller intended to keep a handgun in his home for personal protection, his use was lawful and DC was ordered to issue him a permit, and could not require him to keep the gun essentially unusable while being kept. 

Nothing that happened yesterday in Albany is violative of the 2nd Amendment. The 2nd Amendment is silent on the number of rounds a clip can hold, and bans on certain types of weapons have been consistently upheld. If you have to re-register to drive a car every few years, you can re-register to own a gun. How do we monitor felonies or mental illness with lifetime permitting? 

But I want to pivot back to something – tyranny. How many people have you heard in the past month since the Sandy Hook massacre explain that assault weapons and other militaria must be legal because we have some sort of right to fight tyranny. How many people have suggested to you, with an astonishing ignorance of history of propriety, that, e.g., German Jews could have halted the Holocaust if only they had been armed. 

Make no mistake, notwithstanding Jefferson’s tree of liberty, there is no law, statute, or Constitutional provision that exists in this country to allow someone to fight domestic “tyranny”. What these people are saying is that they detest the government – especially Obama’s government, because he is Kenyan or an usurper or a Nazi or a communist or a “king” or maybe just because he’s brown-skinned. At which point do we determine as a society when we have made the flip to “tyranny”? Who is the arbiter of “tyranny”? At which point do we determine that all of our anti-treason statutes and the constitutional provision found in Article III, section 3 of the Constitution can be set aside because of “tyranny”? 

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

You have no right to possess militaria to fend off “tyranny”. If you think you do, show me the statute or law that says so. Show me the statute or law that repeals our anti-treason legislation. It doesn’t exist. 

If New York wants to ban assault weapons or clips holding more than 10 bullets, it can. If you don’t like it, get your tea party buddies together and elect a legislature in Albany that will repeal it.  But there’s not a thing in the world that suggests that you can, if you don’t like it, take up arms against Albany or Washington. That would be a crime. If you try it and you’re armed, law enforcement won’t like that. Not at all. 

 

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