Monday, January 19, 2015

Is the Second Amendment Content-Neutral?

Of course, one might respond to all these posts on the First Amendment by asking what it has to do with the Second Amendment.  These rulings are about speech, not guns.  But my point is the same one I made before.  How likely is it that there was great controversy over the idea that the First Amendment protected the right to advocate the violent overthrow of the government, but that it was generally accepted that the Second Amendment gave the right to stockpile arms and train private armies for that very purpose?  Or put differently, would the Supreme Court be more favorably disposed toward the Anarchists, Radical Socials, or Communists if they had large arsenals were were engaged in paramilitary drill?  Or that they would shrug off the arsenals and drill as permissible so long as these parties refrained from actually mentioning what they were for?  It seems most unlikely.

Of course, insurrectionist types might argue some variant of the creation and fall view of our history so popular on the right.  Granted, the right of violent revolution was not recognized in the twentieth century, but only because somewhere along the way the U.S. had become corrupted and fallen away from the pure vision of the Founding Fathers that did recognize that right.  This whole series has been dedicated to disproving that contention and showing that from the very start "insurrection," "rebellion" and "sedition" were seen as evils to be suppressed, not goods to be promoted.

Furthermore, the Anarchists, Radical Socialists and Communists raise another question.  A common question I see raised on blog threads is when the right of insurrection begins, and how we know whether a rebellion is a lawful exercise of Second Amendment rights or not.  The best answer anyone has come up with is the very pragmatic and rather cynical concept that if a rebellion succeeds, it was authorized by the Second Amendment, and if it fails it was not.  But another concept that really needs addressing is, if the Second Amendment grants the right to form private armies dedicated to the possible violent overthrow of the U.S. Government, who has that right?

It has taken some time to develop, but the ultimate rule on the First Amendment is that government may place "time, place, and manner" restrictions on free speech (i.e., to prevent it from being disruptive), but it may not regulate by content.  If the Second Amendment authorizes the right to form private armies dedicated to the possible violent overthrow of the U.S. government, does that right belong to all organizations, regardless of religion or ideology, so long as (1) their purpose is possible violent revolution against government* and (2) they promise to refrain from actually shooting until their apocalypse of choice comes about?  Well, plenty of insurrectionist types championed the Branch Davidians and their weird apocalyptic interpretations of the Book of Revelations in which the Federal Government plays the part of Satan. After all, they argued, if you don't expect that to happen, you have nothing to worry about.  The apocalypse will not come, so there won't have to use their arsenal.  And if you don't think the Federal Government is going to do all the terrible things the militia movement expects, then you have no need to fear the militias because they will never have to start shooting.

Well, what about other religions and ideologies that might make militia members uneasy.  Does a Twelfther Shiite Muslim have the right to form a private army to fight Great Satan upon the coming of the Twelfth Imam?  After all, if you don't expect the Twelfth Imam to show up, what is there to be afraid of?  Do Communists have the right to form private armies to fight the feds in the glorious workers' revolution?  Do white supremacists and black supremacists have the right to form private armies for the race war they respectively anticipate?  After all, if you don't expect any of these apocalypses to come about, there is nothing to fear.  The First Amendment is content-neutral.  All opinions, however, odious, are equally protected by it.  Is the Second Amendment equally content-neutral, allowing people of all opinions, however odious, the right to their own army?

Or, if not, then who does have the right to a private army?  "Constitutionalist" militias claim to be defending the Constitution and may claim that, since the purpose of the Second Amendment is to hold the government to the Constitution, only people who believe in the Constitution are allowed private armies.  But that only raises the vexing question of what interpretation of the Constitution. Are all interpretations equally valid, or do only people with the "right" interpretation have the right to their own army to defend it.

My guess is that most "constitutionalists" have not considered these questions because up till now they have simply assumed that anyone who trains a private army for possible war on the federal government must necessarily agree with them.  But if the opportunity ever comes up, I would love to ask about it.

*Not necessarily the federal government, it would appear.  A National Review link I no longer have and do not care to look for defended violent revolution against local government as well.

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