Behind Supreme Court Case: Do Gun Rights Protect against Tyranny?

Article excerpt

The US Supreme Court is considering what could be a landmark decision on individual gun rights. An unspoken argument is that armed citizens would make any usurper think twice before subverting the Constitution.

More than 10,000 words were spoken during this week's historic oral argument over gun rights at the US Supreme Court. But one potentially significant word was never uttered during the hour-long session: tyranny.

Long a focus of debates between gun control advocates and gun rights supporters, the issue was not discussed by lawyers attacking Chicago's ban on handguns or the lawyer for the city defending local gun regulations. No member of the court mentioned it either. (Monitor analysis of the Chicago case here.)

But the idea is there, just below the surface of what analysts expect to become the high court's second gun rights landmark decision in as many years.

IN PICTURES: The debate over gun rights

The basic contention of many gun rights advocates is that the Second Amendment was designed to preserve a large, well-armed, and highly proficient community of gun owners that would make any usurping politician or military commander think twice before attempting to subvert the nation's constitutional framework.

Founders' intent with Second Amendment

"The Second Amendment ... stands as the Founding Fathers' clear and unmistakable legal statement that an armed citizenry is the bulwark of liberty and provides the fundamental basis for law- abiding Americans to defend themselves, their families, their communities, and their nation against all aggressors, including, ultimately, a tyrannical government," wrote Daniel Schmutter in a friend of the court brief on behalf Jews for the Preservation of Firearms Ownership.

Mr. Schmutter said the Second Amendment is "the very last line in the defense of American liberty."

To gun control specialists this argument is deeply troubling. They worry that any armed person with a beef against the government will look to the Second Amendment for encouragement to lock and load and then rain down armed force in the face of what he or she perceives as "tyranny."

How to define 'tyranny'

"In a world in which 'tyranny' means many different things to many different people, it is of paramount importance that the court choose its words carefully when discussing just what is, and what is not, protected by the Second Amendment," wrote John Schreiber in a friend of the court brief on behalf of the Educational Fund to Stop Gun Violence.

"The Framers plainly did not envision ad hoc groups of armed individuals beyond state control (i.e. a 'citizens' militia') as a constitutional check on tyranny," Mr. Schreiber wrote. "They saw them as unruly mobs that must be quelled."

Although it was not discussed during oral argument in the Chicago case, Justice Antonin Scalia addressed the issue briefly in his majority decision in the high court's 2008 ruling striking down Washington, D.C.'s handgun ban.

"If ... the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia [and] the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee - it does not assure the existence of a 'citizens' militia' as a safeguard against tyranny," Justice Scalia wrote. …