A Defense Against Tyranny?
I've heard the "Defense Against Tyranny" argument many, many, times, and while some courts have acknowledged it, it has both an inherent legal and logical flaw.
The natural right of revolution, as espoused by both John Locke and Thomas Jefferson (http://en.wikipedia.org/wiki/Right_of_revolution), was a concept that a tyrannical government could - and should be - overthrown by the people when that government no longer looked after the interests of the people being governed.
John Locke even described armed revolution as a duty and an obligation, rather than as an option which citizens could decide against.
The logical flaw in applying this concept to the Constitution's Second Amendment is in assuming that exercising one's natural right to revolution guarentees a republican form of government or - the legal flaw - a constitutional government.
Exercising one's right to revolution guarentees neither.
All it guarentees is revolution.
The Constitution was established and ordained with an amendatory process by which any part of and/or all of the Constitution could be altered or repealed. As long as that amendatory process remains intact and has not been rendered impaired, or was somehow repealed, we can assume that anyone taking up arms against the government is doing so in opposition to their duly elected officals - and not against the government which those officials represent.
That's not a revolution.
That is, instead, an insurrection, which the Constituion clearly states is a criminal act to be suppressed (http://press-pubs.uchicago.edu/founders/tocs/a1_8_15.html) and not encouraged nor legalized via someone's distorted and twisted personal interpretation of the Constitution's Second Amendment.
And that brings us back to what this is all about: The constitutional or extra-constitutional interpretation of the Second Amendment, and precisely why the "right to bear arms shall not be infringed'.
While the right to own a firearm has been ruled as an individual right - and properly so, in my view - by the US Supreme Court, as opposed to a collective, group, right, the context is clearly for a collective, group, purpose: "A well regulated militia."
That purpose is clear because that is, after all, exactly what the Second Amendment says the purpose for the amendment is:
"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
Obviously, the men who drafted and voted on the passage of the Bill of Rights' Second Amendment saw the right to own firearms as a prerequisite to a people's militia, and equally obvious was that this people's militia was to serve the federal government - not overthrow it, citing, again Article I, Section 8, Clause 15.
This people's militia was intended to be subject to FEDERAL regulation and FEDERAL oversight citing both the Constitution's Second Amendment and Article I, Section 8, Clause 15, a third time.
It is Congress' constitutional duty in that Clause, in fact, 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasion' - making the federal government the master of the people's militia, not the target of that militia's armed might.
If that is the case - and it most certainly is - then Congress could be said to be derelict in it's constitutional duties when it fails to properly regulate the people's militia - for failing to do so prevents the people's militia from performing those activities which the Constitution says the people's militia is constitutionally obligated to do.
Any other interpretation of the Second Amendment under the hubris of a 'defense against tyranny' argument is therefore flawed.
In my view, there is no Constitutional ''right'' to own a semi-automatic rifle any more than there is a Constitutional right to battlefield anthrax or a nuclear bomb.
But then, there are rights and then there are 'RIGHTS'.
Human rights, natural rights, constitutional rights, and civil rights all occasionally overlap, but they also occasionally turn their backs upon and deny one another.
No one in this country has the Constitutional 'right' to vote - yet, as long as someone out there can cast a ballot, we recognize voting as a civil right... a 'right' that can not be denied from one citizen as long as the criteria that allows the citizen to vote has been met.
Women in Saudi Arabia are not legally entitled to equal treatment under their law, as long as our nation recognizes that desert country's natural right to pass it's own laws, even if a Saudi citizen would receive equal treatment under the law if she were living here.
We can pass moral judgment and condemn what they do, but unless we are going to impose our national will upon another state, that's all that is going to happen.
I can recite example after example wherein these different kinds of rights reinforce one another, or do absolutely nothing to reinforce one another and might actually contradict one another.
The bottom line is this: Natural rights are those that have been bestowed upon us by either God or Mother Nature. They include (but are not limited to) life, liberty, and the pursuit of happiness.
Human rights are those rights that we have deemed, in conjunction with our global neighbors, those that a civilized man should show to his fellow man. They include (but are not limited to) the right to decent and humane treatment.
Constitutional rights are those rights which we, exclusively as Americans, have spelled out in the US Constitution for us and (hopefully) for our posterity, for ever more.
Civil rights are those rights which we, exclusively as Americans, have written to ensure equal treatment under the laws we pass as a nation.
EVERYBODY, on a philosophical level, is entitled to briefcase atom bombs when exercising their natural right to revolution. The legality of that revolution is not important, since, by definition, rebelling against the legal authority is ALWAYS going to be outside of the governing authority's law. When resorting to one's natural right to revolution, one is relying upon God or Mother Nature to sort matters out when the dust clears.
It is in that context that to even harbor the thought that the Constitution justifies revolution has to be looked upon as a total absurdity, even if revolution is justified by natural law.
There is a reason why the Confederacy was ILLEGAL...
There is a reason why nullification is ILLEGAL...
There is a reason why secession is ILLEGAL...
Even if all of those are, in fact, rights supported by another set of laws, i.e., natural law.
Under our constitution, nullification and secession is not recognized.
Under our current laws, the private ownership of briefcase a-bombs is illegal.
No one has the 'right' to an a-bomb.
Likewise, no one has the right to a semi-automatic rifle.
We can make it legal to own a semi-automatic rifle, but that is a legality that can - AND IS OFTEN - taken away under certain circumstances. We don't for example, allow ex-felons to possess firearms. Or the mentally disturbed. Or children under a certain age, et cetera, et cetera...
Someone out there can claim to have a 'constitutional' right to this, that, or the other thing, but when it comes to weapons for the express purpose to overthrow the Republic - you do NOT have a constitutional right to do that, even if you do have a 'natural' right to do so.
And neither your neighbors nor the Constitution is under any kind of obligation to protect your natural right to revolt.
You might be able to convince our lawmakers to keep the ability to revolt intact for whatever reason: good for you.
As for the rest of us, your 'natural right of revolution' has devolved into the natural right to impose death and destruction on your innocent neighbors, and we're sick and tired of it.
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