David Bernstein, University Professor and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University, has a paper on this very subject.
In it, he begins well enough.
The individual right to keep and bear arms has two primary rationales. The first is to provide citizens with a means to oppose tyrannical government. The second is to provide citizens with a means to defend themselves, their loved ones, and their property from criminal aggression.
I would argue that criminal aggression envelopes both of the above two rationales, personal self defense and defense against tyranny. Family, home and hearth need protection against both, and that was the cultural milieu within which men had and carried arms in colonial America, and in which the second amendment was crafted. But a careful reading of Heller doesn’t exactly bring that point out. In fact, while he uses the Heller ruling in the paper, the right to overthrow a tyrannical government really isn’t the core of Scalia’s arguments. If it was, Scalia would have argued differently, and argued for more weaponry in the hands of the citizenry, and finally, argued against one of his core principles in the ruling. One of his core principles is that the ruling doesn’t negate or find unconstitutional all gun control. In fact, many traditional gun laws are left alone, untouched, and simply go without discussion other than to note that the ruling leave them alone.
Bernstein notes what the minority thought about the ruling.
The majority and dissent clashed over whether the right to self-defense with firearms is anachronistic in modern times, when police forces are expected to enforce law and order. The majority observed that although some “[u]ndoubtedly some think that the Second Amendment is outmoded in a society … where well-trained police forces provide personal security,” it was “not the role of th[e] Court to pronounce the … Amendment extinct.” The dissenting Justices, by contrast, asserted that the midnineteenth-century “development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, … ha[s] moved any … right” to armed home defense “even further away from the heart of the Amendment’s more basic protective ends.”
Readers know that we’ve addressed this issue many times before. The minority report is a lie, and they know it. Police do not have the responsibility to supply protection of anyone or anything, from life to property. This is so commonly known now that it’s amazing that we have to repeat it. See, for example, the following decisions.
Castle Rock v. Gonzalez
Warren v. District of Columbia
DeShaney v. Winnebago County
Bernstein continues with his study demonstrating that stand downs of police across the nation in the face of Antifa/BLM riots has cast new light on the necessity of armed self defense. If the police aren’t there to do it, it’s necessary to do it ourselves.
But given the fact that the police aren’t responsible to do it, we were always responsible to do it ourselves, and the minority in Heller knew that. Everyone who knows the law knows that.
But this still misses the primary point. Bernstein later quotes a LEO writing at Daily Kos.
Another Daily Kos op-ed, this one by a former police officer, likewise argued that the “right to Bear Arms … became outdated and irrelevant once the country actually had a well-regulated militia,” which today is the National Guard; “Not only does the United States have a ‘well organized militia’ but every inch of the United States is protected by a police or sheriffs department.”
And now we’re to the primary point. When the police think this way, they have become the agents of tyranny that Bernstein suggests necessitates the need for the second amendment to begin with.
They aren’t there to supply protection – the courts have repeatedly told us that. But what they can do is extinguish your right of armed self defense, something we have seen many times in the past few months where police arrested people who engaged in that very thing rather than target the rioters. We argue that this itself is tyranny.
For this reason, and more, I have always held that Heller was a very weak decision. Arguing that armed self defense is protected under the second amendment games itself with silly arguments about the role of the police. The discussion itself becomes a subterfuge and misdirect. Heller was an odd opinion for the simple reason that it buries the real intent of the second amendment.
Despite the Court’s confident pronouncement, it is not at all clear that the Second Amendment was meant to protect a personal right of self-defense. It is, however, crystal clear that the Amendment was meant to protect the right to keep and bear arms to resist tyranny-as the Heller Court itself concedes. Yet strangely, by the time the sixty-four-page opinion has wound to an end, the Court has purged the Amendment of its revolutionary quality. Justice Scalia’s opinion never hints that the right to resist tyranny might still be alive and well and relevant to the Amendment’s interpretation, and it lays down rules that will make the right a functional nullity.
As a result, the opinion has an odd quality. Justice Scalia insists that he is being true to the language and history of the Constitution. Yet by the close of the opinion, the purpose that clearly and plainly appears in the language and history-the right of resistance-has disappeared, but the right of self defense-which is much less clearly present, if present at all, in the language and history-has taken center stage.
[ … ]
Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.
Only when the second amendment is seen as protection against and amelioration of tyranny does it take on the life it should.
Armed self defense, against aggressors both individual and collective, is a God given right, and even duty. It is merely recognized in the constitution, a covenant document and contract with the people. Honoring that covenant brings blessings, breakage of the covenant brings curses of all kinds.
King George found out well what kind of curses it might bring. The American war of independence was known in royal circles as being a “Presbyterian rebellion.” He found out that he wasn’t the author of rights. That domain belongs to the Almighty.
