Their swords, and every other terrible implement of the soldier, are the birth-right of an American…. [The] unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
— Tench Coxe, Pennsylvania Gazette, February 20, 1788
On July 9, Donald Trump nominated federal judge Brett Kavanaugh to succeed the retiring Supreme Court justice Anthony Kennedy, and leftist heads immediately began exploding. Among his biggest offenses in the eyes of the Left is his strong reverence for the Second Amendment to the Constitution.
It’s probably too early to tell, but it seems that with Kavanaugh’s ascendency people’s right to keep and bear arms has gained a much-needed ally. Reacting to the president’s pick, Sen. Chris Murphy (D-Conn.) immediately denounced Kavanaugh as “a true Second Amendment radical” because he “believes assault weapons bans are unconstitutional.” This seems to be an accurate assessment, and it is cause for celebration. If military-style rifles are banned, the Second Amendment becomes a dead letter.
In a 2011 dissent, Kavanaugh wrote,
In [D.C. v. Heller 2008], the Supreme Court held that handguns — the vast majority of which today are semi-automatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.
Speaking on MSNBC’s program The Last Word after Trump’s announcement, left-wing Sen. Elizabeth Warren (D-Mass.) claimed that Kavanaugh’s views are outside the mainstream. “I want to know something about this judge,” she said. “I want to know something about this judge’s values. And what he’s revealed so far is not something that reflects America’s values.” Sadly for Warren, and her vipers’ pit of anti-gun allies, Kavanaugh’s views on semi-automatic weapons have the support of the top court’s past and present constitutional stalwarts — and also the American people. For example, Justice Clarence Thomas, backed by Justice Antonin Scalia, wrote in a dissenting opinion that the Court should hear a challenge to Highland Park, Illinois’s, assault-weapons ban in 2015. He was quoted in the New York Times (December 7) saying,
Roughly five million Americans own AR-style semi-automatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
Thomas’s and Kavanaugh’s statements certainly are not a reflection of a libertarian’s perspective on this issue, but they do conform to “America’s values.” Millions of law-abiding Americans own these weapons, and tens of millions more support the right to keep and bear arms in general. A Wall Street Journal/NBC News poll in 2015 found that 52 percent of respondents see the Democratic Party as being “outside the mainstream” when it comes to gun laws. A CNN/ORC poll that same year revealed that 52 percent of Americans also “oppose stricter gun laws.” Most relevant to the present discussion, Gallup found that 51 percent oppose a ban on “assault weapons.” It is interesting that 68 percent of people polled by Rasmussen in 2015 said that they prefer to live in an area where they and their neighbors can be armed. Considering that just 30-40 percent of Americans own guns, that reflects a broad consensus. Pew Research reported in 2014 that for the first time in two decades most Americans (52 percent) are more concerned about protecting the Second Amendment than in passing more gun laws.
Assault weapons, crime, and speech
Judge Kavanaugh was correct that so-called assault weapons are rarely used by criminals. The Assault Weapons Ban passed by Congress in 1994 (which was really a ban on the importation of semi-automatic rifles with certain cosmetic features) was in place for ten years, and the Department of Justice concluded that it had no impact on crime. Ninety-one percent of police officers surveyed believe assault-weapons bans are ineffective at combating crime, and even in mass shootings a handgun is far more likely to be used than an assault rifle.
Writing in his 2011 dissent, Kavanaugh used another approach to address the issue. Equating the First Amendment to the Second, he argued that banning certain types of guns is comparable to restrictions on free speech. “A ban on a class of arms is not an incidental regulation,” he said. “It is equivalent to a ban on a category of speech.” He makes a good point: If our right to speak freely can be eroded by attacks on the more unpopular forms of speech, such as “hate speech,” pornography, or political advertising, then a precedent is set that can (and will) be used to justify further restrictions. And if unpopular or “scary-looking” guns can be banned, then the Second Amendment as a whole may suffer the same fate.
This reasoning is unlikely to persuade left-wing authoritarians, who seem to care as little for free speech as they do for the right to keep and bear arms (see my essay “Trump, Free Speech, and Libertarianism”). An authoritarian regime is very likely to target sources of dissent (e.g. newspapers, radio stations, and magazines) first; then it will begin disarming the civilian population. Nor do authoritarians seem to care about fighting crime, though a push for more gun laws is invariably championed for that reason. Time and again passage of gun-control laws is followed by a spike in crime, but for leftists that just means greater restrictions on freedom are required. Note the response of London mayor Sadiq Khan to that city’s explosion in homicides this year.
The reason for the Second Amendment
Reference to crime rates and the First Amendment provide a line of legal reasoning for judges when overturning gun bans, but Americans should be careful before placing too much trust in either justification or, for that matter, that branch of government. The most effective place to combat civilian disarmament laws is at the ballot box, where anti-gun politicians can be reminded that the spirit of liberty still resides in the people at large. In order to do that voters should be educated about the reason we even have a Second Amendment. That will be far more effective than the defensive apologia offered by Kavanaugh and others. When Americans threw off the shackles of a distant government and wrote a Constitution in 1787, there was considerable fear that a new central government would in time grow powerful enough to overshadow the state governments and threaten the ancient liberties of the people — including the right to keep and bear arms. As an attempt to first derail ratification of the Constitution, and then later to ameliorate its perceived shortcomings, the Anti-Federalists demanded inclusion of a Bill of Rights — amendments that would prohibit the federal government from taking certain actions. The Second Amendment expressly forbade the government from disarming the people.
The Framers of the Constitution were not concerned about target shooting and hunting, though such pastimes would assuredly have met with their favor. Even crime was not forefront in their minds; from the mother country they had brought over to North America the time-honored tradition of the “hue and cry” — the responsibility of free citizens to respond to calls from the sheriff or other law officers and assist in the apprehension of criminals. They were expected to turn out with their own weapons, and failure to do so could even have legal consequences.
By placing a right-to-arms provision in the Constitution the Framers were declaring unequivocally that the American people will remain the final repository of legitimate force in society, by ensuring that individual citizens will be the armed equivalent to soldiers and therefore capable of defending their rights and liberties — even against their own government. The “sword” will ever be in the hands of private citizens who can then mount a campaign of resistance and, if necessary, overthrow the state and “institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”
The Second Amendment states that a “well-regulated Militia” is “necessary” for the “security of a free State.” This means individual citizens may be called upon to defend against insurrection, invasion, or even a tyrannical federal government.
Is resistance possible?
Leftists mocked the idea of people’s organizing to resist their government — at least until Donald Trump was elected president. Typically, advocates of the Right to Revolt (or Resist) are told they stand no chance against the tanks, jets, and drones of the American military. That raises an interesting specter: Are leftists prepared to admit that the U.S. government could unleash its vast arsenal on the public?
If so, then it is absolutely essential that the American people have access to semi-automatic military-style rifles to defend themselves, their families, and their neighborhoods against any force that might attack. Woe betide a great ruler who underestimates the danger of a citizenry rallied to its own defense, and plenty of examples throughout history confirm the fighting spirit of those so passionately engaged, like Macaulay’s “Horatius at the Bridge,” who defied the House of Tarquin, asking, “How can man die better than facing fearful odds/For the ashes of his fathers, and the temples of his Gods?”
Facing odds of nearly twenty to one, a handful of Swiss militia defeated the Holy Roman Emperor’s army at the Battle of Morgarten in 1315. The powerful Austrians would suffer further humiliation at the hands of the Swiss, at the Battle of Sempach (1386) and the Battle of Näfels (1388). The Burgundian War (1474–1476) saw the armies of Charles the Bold repelled by Swiss infantry in several battles, and Charles himself killed by a Swiss soldier, at Nancy, ending the war. Machiavelli would identify the Swiss as “most free and best armed.”
More recently, our own Revolution was fought largely by armed farmers against the most powerful military in the world. Nor has the advent of the modern industrial state made such outcomes improbable. Americans learned during the Vietnam War that a Third World army could inflict heavy casualties, despite our government’s military superiority in every conceivable category. In Northern Ireland urban guerrilla fighters made life hell for the British government for three decades, and among their favorite weapons was the semi-automatic Armalite Rifle — forerunner of the AR-15. During the Second World War, a small group of Jews in the Warsaw Ghetto held the Nazi army at bay for a month, using military rifles, handguns, and machine guns.
Government may have fire superiority, but that does not efface the long history of successful resistance to tyranny, or reduce the importance of an armed citizenry acting as its counterpoise. Military-style weapons in civilian hands make possible an initial underground campaign designed to obtain through ambush and lightning raids the anti-tank and anti-aircraft capabilities necessary for sustained, conventional attacks on government forces when the time is right.
In his essay “Gun Control Measures Hazardous for Citizens,” Stephen Halbrook wrote,
Democratic governments that wish to protect their citizens by depriving them of firearms sometimes accomplish the very opposite — and leave the law-abiding at the mercy of those who will flout any statute, tell any lie, engage in any conspiracy, to gain power over the innocent. Good people, rendered helpless, are history’s victims.
The Second Amendment protects “assault weapons” for precisely that reason. As James Madison’s friend Tench Coxe noted, they are “the birth-right of an American.”
This article was originally published in the November 2018 edition of Future of Freedom.