Does The Second Amendment Support Forming Militias In An Attempt To Overthrow The Government?

It is a right wing article of faith that one of the purposes of the Second Amendment is to arm the citizens against a possible tyrant. Of course, what constitutes a tyrant is in the eye of the beholder. Current movement conservatives in America see a tyrant in the moderate African American Democrat who currently holds the White House. And they see the Second Amendment as authority to form armed “militias,” and to attack every conceivable form of modest gun control proposals as attacks aimed to facilitate a tyrant in enslaving them.

By far the most comprehensive and authoritative legal and historical discussion about the Second Amendment is the U. S. Supreme Court’s 2008 majority opinion in District of Columbia v. Heller (554 U.S. 570)–authored by Justice Scalia and joined by the four other most conservative justices–Roberts, Alito, Kennedy, and Thomas. The four liberals on the Court at the time all dissented.

Since this is a Scalia opinion, and an opinion of the Court–not to mention the handiwork of the conservative majority who still controls the Court–today’s right wingers are hardly in a position to disrespect it.

And yet, in Conservo-land, the right wing goal posts are moved further to the right every year–perhaps even every month. This opinion is five years old. To today’s conservatives, it is so “last decade.” Why, in 2008, Karl Rove was a conservative hero; now, he is just another RINO (“Republican in Name Only”) complaining about the infallible Ted Cruz.

At the time, Heller was considered an enormous victory for gun rights advocates. Indeed, it seemed to conclusively decide the most important issue in gun rights–that is, whether the Second Amendment guaranteed an individual right to bear arms, as opposed to just a right for government militias. That was the issue hanging over the gun rights movement for decades. Liberal scholars had argued that the amendment only referred to militia rights, and for decades there was no evidence that the high Court would ever say otherwise.

This made the Second Amendment virtually a dead letter because the government now has a standing army and does not rely on militias anymore. And, indeed, the Amendment did seem dead. In 1987, the great constitutional scholar and former Watergate Special Prosecutor Archibald Cox, on the occasion of the bicentennial of the 1787 “Miracle at Philadelphia,” when the Constitution was written, authored a comprehensive book looking back at the history of American constitutionalism called ?The Supreme Court and the Constitution. That large history of U.S. constitutional law to that date contained not one mention whatsoever of the Second Amendment.

But gun rights advocates continued to invoke the Second Amendment in the next twenty years, and then in Heller, the Supreme Court breathed life into the amendment with its holding that it did guarantee an individual right to bear arms.

Basically, for reasons that will follow, the upshot of the opinion was that the individual right to bear arms that the Second Amendment now protects includes home defense from criminals and sporting activities.

But what about the right wing dream that it also authorizes an armed citizenry to overthrow a tyrant?

Such an idea was, in fact, part of the original motivation for the Second Amendment. Scalia, for the Court, went extensively into that history and noted, for instance, that the right to bear arms had been recognized at the time of the 1690 Glorious Revolution in England as providing all the citizens the right; this was a backlash against the deposed Stuart monarchy which had disarmed various groups with an eye toward then suppressing them. Also, the anti-Federalists who mostly opposed the adoption of the U.S. Constitution without a Bill of Rights stressed the need for an armed citizenry to be able to protect itself in the event a tyrant exceeded his powers and needed to be overthrown.

Scalia mentioned these sentiments in support of the Court’s conclusion that the Second Amendment was originally meant to guarantee an individual right to bear arms. But what about the “fight the tyrant” basis now? Obviously we have a government that is armed with nuclear weapons, tanks, tomahawk “smart” missiles, etc., etc. If the “fight the tyrant” basis has any current viability, the Court would have to have given Constitutional protection to individual possession of some very potent weapons, indeed.

It did not. The Court approved, for instance, of a previous case that banned short-barreled shotguns. Moreover, in stating that the Second Amendment had appropriate “limits,” it held that it would allow prohibition of “dangerous and unusual weapons.” Furthermore, the Court ruled that the Second Amendment did not forbid state or federal governments from outlawing “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns.” (Tough luck, Twenty-first Century private militia movement.) Thus, if the Second Amendment allows prohibition of unusual or “dangerous” weapons, and of the gathering of men to strut and practice with their para-military brethren, what’s a would-be tyrant-killer to do?

The answer for the folks who wish to engage in organized military opposition to the Obama Administration is that the old “kill the tyrant” justification for the Second Amendment is now obviously confined to the dustbin of history. It is a historic anecdote, not a presently sanctioned action. The idea now gets no effective support from the Second Amendment as interpreted by the Roberts Court. For those so inclined, however, there is another Constitutional provision that they might wish to consult. It is in Article III, Section 3, and it deals with the subject of Treason.

It should also be noted that the limitations on the Second Amendment announced for the Court by Scalia also have the effect of making Constitutional all of the standard proposals now being offered by proponents of reasonable gun control. Background checks, banning of large magazines and of semi-automatic military style weapons–all are obviously reasonable limitations under the guidelines described in Heller around p. 626 of the opinion of the Court. Consequently, when one hears NRA bought and sold legislators lament that they cannot support these sorts of gun control measures because they would “damage the Second Amendment” or violate it, the answer is: no, sir, not according to the five member conservative majority of the Roberts Court.

The Heller Court also mentioned that the Second Amendment’s limitations allow regulations and prohibitions concerning places were guns may be taken:

“Nothing in our opinion should be taken to cast doubt on the longstanding prohibitions of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools…or laws imposing conditions and qualifications on the commercial sale of arms.”

(p. 626-27, emphasis added).

Given the Court’s mention of schools as a place where it would be appropriate for guns to be prohibited, it is obvious that the justices had not yet drunk the Kool-Aide consumed by today’s NRA toadies which has informed them that schools are, in fact, quite a dandy place to have guns–lots of them, preferably. (“Arm the teachers!”–after all, what could go wrong?)

Thus, we do now have what the gun rights advocates fought for over decades–an individual right to bear arms. Given the constraints of the Heller decision, though, that right, as a practical matter, has only to do with home defense and sporting activities. For today’s right wing, that clearly is not enough. It allows for reasonable gun control, if it could ever pass Congress; and it offers nothing for those wish to extinguish perceived tyrants.

Edited/Published by: SB

Dan Boyd is a founding director of the Roosevelt Institute ( and serves on its Board of Governors. He is a lifelong progressive and a Dallas-based trial and appellate lawyer.