Jared Goldstein, writing at Balkinization, suggests that the “insurrectionist theory” of the Second Amendment is too dangerous too leave lying around:
The Supreme Court itself has given its blessing to the insurrectionist theory of the Second Amendment, a key part of the constitutional philosophy that undergirds the movement . . . In Heller . . . insurrectionist theory became part of our foundational law, as the Court repeatedly declared that the purpose of the Second Amendment is to enable citizens “to resist tyranny,” and to protect the people’s right to form “a ‘citizens’ militia’ as a safeguard against tyranny.”
To be sure, many who accept the insurrectionist theory agree that armed resistance can only be justified as a last resort. As Judge Alex Kozinski explained, “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed.” The Bundy Ranch protest illustrates the problem with that theory. To paraphrase Justice Harlan, one man’s minor kerfuffle over grazing fees is another man’s doomsday. The new militia moment has arrived because a broad segment of the conservative movement believes that doomsday is today.
I think that’s a fair point, sort of. But I don’t think the fault lies with the insurrectionist theory per se (whatever you may think of it) so much as the social context that makes such a significant portion of the population feel that it’s actually plausible that constitutional doomsday is upon us.
Put another way: just as it’s not really the case that the assassination of Archduke Franz Ferdinand was the “cause” of World War II in any sense except a highly literal, but-for sense of the word “cause,” grazing fees were not the cause of the Bundy Ranch business, and neither will any other such seemingly trivial thing be the cause of any armed constitutional conflict in this country, should such a thing occur. The actual underlying causes are both more mundane and more horrifying, of course: the rotten foundation of white supremacy on which much of our national culture was built and the concomitant expectation that white men should always have a place of special honor, respect, and advantage; the spectacular collapse of the anomalous mid-century economy just as formal legal equality for blacks and women was beginning to be realized; the conservative and neo-liberal coalition to eviscerate unions and outsource labor abroad; the stoking of racial fears through the Drug War and xenophobia through anti-immigration rhetoric and the War on Terror; the realignment of America’s major parties (and political persuasions) during and after the Southern Strategy; the cynical tweaking of fear of “Big Government” during the last two Democratic presidencies, especially by painting those presidents and their high-level staff as murderous, terrorist-linked socialist radicals; and the modern conservative movement’s pivot toward an extreme, proto-apocalyptic framing of nearly every issue—including gun control, which for better or worse was once embraced by the NRA and conservative hero Ronald Reagan.
In other words, it’s the very real economic implosion of the white middle class, coupled with the remnants of a long-entrenched white supremacist mythology that encourages white labor to blame people of color, the left, and/or the federal government for their economic insecurity—all shrewdly exploited by political hacks to benefit a small class of wealthy interests—that drive hard-right anti-government “constitutional” revolutionary fever.
I also think it’s incorrect to say that Heller is particularly supportive of an insurrectionist militia theory of the Second Amendment. The great genius of Scalia’s opinion is its pivot away from militia concerns (i.e., defense from tyranny) and toward private self-defense (i.e., defense from brigands and the like). Indeed, the opinion openly acknowledges that the general “militia” of today cannot possibly be armed in a way that would make it an actual threat to federal authority:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
And why would we expect anything else? Antonin Scalia is a lifelong urbanite, a former law professor, a well-to-do man living in Washington, D.C. whose salary has been paid by the federal government for the majority of his working life. Does anyone really believe he’s looking forward to the Great Armed Rebellion of Angry White Rurals? Of course not.
Sure, the “insurrectionist theory” is dangerous—an alluring, sexy sort of cultural meme to leave lying around, especially in troubled times. The philosophy of local conscience trumping the conscience of the nation was at the heart of the Civil War, which of course ended badly for the insurrectionists—and other, lesser insurrections often didn’t fare so well either. That’s because a rebellion against the federal government based on the idiosyncratic constitutional interpretations of a few—or even a significant minority—isn’t actually part of the constitutional plan. Consider Madison in Federalist 46:
[A]mbitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every [state] government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole . . . . But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter . . . .
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
In other words, Madison thinks that if the federal government gets truly out of hand, the whole of the populace will rise up against it. If we haven’t reached that point—if the country is well-and-truly divided on the question of whether particular uses of federal power exceed the Constitution’s limits or not—then it’s not time for insurrection. Then the fight is still fundamentally a political one.
I think everybody basically understands that, which is why there are so few actual armed insurrections. That’s not the kind of thing you want to pull the pin on until you’re pretty sure you’ve got a solid majority on your side.
Finally, let’s note that the insurrectionist theory is inherently unstable, in that it’s basically empty of content—the Second Amendment and Militia Clauses as read by “constitutional insurrectionists” don’t espouse any particular theory of constitutional interpretation, leaving armed insurrection available for Bobby Seale and Cliven Bundy alike.
I find that to be a delightful opportunity, actually, and I’m surprised more lefties don’t take up what’s been laid down there. Perhaps more of us should hold rallies for, I don’t know, the minimum wage, or immigration reform, or health care, and show up in our tactical gear.
Let’s see how long it takes for Hannity’s head to explode.