New Article in the Texas Review of Law & Politics: The "Essential" Second Amendment

An overview of the COVID-19 litigation concerning the Right to Keep and Bear Arms

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Recently, the Harvard Journal of Law & Public Policy published my article, The "Essential" Free Exercise Clause. The Texas Review of Law & Politics will publish the companion article, The "Essential" Second Amendment. My new piece provides an overview of the COVID-19 litigation concerning the right to keep and bear arms. Here is the abstract:

Constitutional litigation over the Second Amendment has followed a familiar pattern. In the decade since Heller and McDonald, countless cases have turned on a foundational question: how much danger does the weapon pose? But in 2020, the courts were suddenly presented with a novel constitutional question: how much danger does obtaining the weapon pose? During the COVID-19 pandemic, state and local governments enacted complete prohibitions on the acquisition of firearms. Willing buyers were ready to comply with all extent gun-control regulations. But these governments shuttered firearm stores completely. These policies were adopted not to stop the sale of guns, but to stop the spread of the novel coronavirus. In short order, these governments deemed the Second Amendment as "non-essential." The ability to purchase firearms was treated no differently than the ability to purchase other conveniences. Still, the practices in the overwhelming majority of the states reflected what should be a basic tenet of constitutional law: enumerated fundamental constitutional rights must be "essential" rights. And the state cannot impose an absolute and arbitrary prohibition on the exercise of the essential Second Amendment.

This article proceeds in four parts. Part I considers what the word "essential" really means. Part II undertakes a fifty-state survey of restrictions imposed on the right to keep and bear arms during the pandemic. Part III analyzes another metric to decide whether the right to keep and bear arms is essential: the people. During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential. Part IV revisits two district court decisions that upheld restrictions on the right to keep and bear arms during the pandemic. These cases followed the framework Chief Justice Roberts established in South Bay Pentecostal Church v. Newsom. These courts should have followed the framework Justice Kavanaugh established  Calvary Chapel v. Sisolak, and the Supreme Court formally adopted in Roman Catholic Diocese of Brooklyn v. Cuomo. If any businesses are treated as "essential," firearm stores must presumptively be afforded that same status. The right to keep and bear arms ought to be afforded "most-favored status." And the state must justify its decision to deprive people of their right to keep and bear arms.

The COVID-19 pandemic has illustrated once again that in times of crisis, the government will forcibly separate the people and their arms. The people must be vigilant to protect this "essential" right.

I have one more COVID-related article still in the pipeline. It is tentatively titled, The Irrepressible Myth of Jacobson v. Massachusetts. I hope to have it out for submission this summer.

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  1. “In the decade since Heller and McDonald, countless cases have turned on a foundational question: how much danger does the weapon pose?”

    The problem, of course, is that weapons are SUPPOSED TO BE dangerous. That’s their very function. The idea that the right should turn on how “dangerous” a firearm is, is to adopt the dissent’s perspective on the 2nd amendment, not the majority’s.

    1. Yea it’ll all be for our safety. Which these days means constitution is suspended

    2. That’s silly. The entire premise of the Second Amendment is that in the hands of a well regulated militia, keeping and bearing arms should protect, rather than endanger, the government and the people.

      And in a well regulate militia, people don’t get to carry whatever weapon they want to. If you want to carry around a “Davey Crockett” nuclear shell launcher, sorry, you can’t. And yes, that determination has to do with dangerousness.

      More broadly, no constitutional right is absolute, and whether its the exigent circumstances doctrine (4th Amendment), pretrial detention doctrine (6th Amendment), incitement/clear and present danger doctrine (1st Amendment), or dangerous weapon doctrine (2nd Amendment), danger is always a touchstone for when a constitutional right may be restricted.

      1. The entire premise of the Second Amendment is that in the hands of a well regulated militia, keeping and bearing arms should protect, rather than endanger, the government and the people.

        That’s not even A premise of 2A, let alone “the entire premise” of the amendment.

        For how many years are you going to continue to spout this ignorance?

        1. As long as the text of the Second Amendment reads exactly what it reads now.

          You guys lecture us all the time about your fidelity to text until you find text you hate.

          1. Part of the reason why a well regulated militia is necessary for the security of a free state, is that under some circumstances it WON’T protect the government! Unlike a standing army, which was presumed to be willing to take the government’s side in ANY fight.

          2. As long as the text of the Second Amendment reads exactly what it reads now.

            You guys lecture us all the time about your fidelity to text until you find text you hate.

            The problem is that the “text” you’re referring to was made up by you from whole cloth, and does not actually appear anywhere in 2A.

      2. “That’s silly. The entire premise of the Second Amendment is that in the hands of a well regulated militia, keeping and bearing arms should protect, rather than endanger, the government and the people.”

        Look, the whole point of including “rights” in a constitution is that, sometimes, the government will want to do the wrong thing. Sometimes the interests of the government and the people conflict, and the “right” is there to establish that it isn’t the government’s interest that is supposed to prevail.

        Sometimes you have to chose which will be endangered, the government or the people.

        If you think a right is there for the government’s sake, you don’t understand the concept of “rights”.

        The reason the 2nd amendment is in the Constitution is to assure that a militia can be raised, yes. But not for the government’s sake. The 2nd amendment is there to assure a militia can be raised even if the government wants it to be impossible.

        You don’t need the 2nd amendment to enable a government that wants a viable militia system. You need it to get in the way of a government that DOESN’T want a viable militia system.

        That’s why the right is guaranteed to the people, and NOT to the militia: Because in the event the militia is discontinued, you’ll still have an armed people from which a militia could be raised in an emergency, even in the face of a government which doesn’t WANT the people to be able to do so!

        Letting the government decide people can’t be armed because it might endanger the government stands the whole amendment on its head.

        1. Lol, so why was McDonald necessary?? And you do understand that under the AoC the issue was that the federal government was too weak and the state militias were suboptimal?? So the threat of ANARCHY was an equal concern to TYRANNY!! So your ANALysis gives short shrift to concerns of anarchy when the Framers were very wealthy people that wanted to maintain the status quo (the British were attempting to undermine the status quo by reinserting themselves back into American life after letting America mostly govern themselves for decades)

          1. McDonald was necessary for the very reasons Brett posted:

            the whole point of including “rights” in a constitution is that, sometimes, the government will want to do the wrong thing. Sometimes the interests of the government and the people conflict, and the “right” is there to establish that it isn’t the government’s interest that is supposed to prevail.

            Regarding the 2nd amendment, the government DOES want to get in the way of the people. McDonald pointed out that it doesn’t get to do that without running afoul of the constitution.

        2. Look, the whole point of including “rights” in a constitution is that, sometimes, the government will want to do the wrong thing.

          Correct, but that’s why we have courts. It isn’t why we have guns.

          Sometimes you have to chose which will be endangered, the government or the people.

          YOU don’t get to make that choice.

          The reason the 2nd amendment is in the Constitution is to assure that a militia can be raised, yes. But not for the government’s sake.

          Except it says right in the text that it’s for the government’s sake.

          1. “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”

            1. Anarchy with a weaponized citizenry will turn into Afghanistan…anarchy without a weaponized citizenry will turn into Cuba…it’s best to avoid doomsday and attempt to perpetuate a republic based on maximizing liberty while maintaining law and order.

              1. That won’t happen if the government follows it’s own edicts. You’re forgetting the cause and effect here.

          2. “Correct, but that’s why we have courts. It isn’t why we have guns.”

            That’s mind bogglingly stupid: The courts are PART of the government!

            “YOU don’t get to make that choice.”

            Everybody gets to make that choice.

            “Except it says right in the text that it’s for the government’s sake.”

            It says it’s for the sake of a free state. What if the state isn’t free anymore?

            How mind bogglingly stupid it is to assume the state will always want to remain free, that the government, the GOVERNMENT, for God’s sake, will always be a force for good?

            1. Brett, you can “make that choice”, and you can be hanged for treason.

              No, in common parlance, you don’t get to LARP and play “let’s overthrow the government”. The United States government is sovereign, and they aren’t required to indulge your violent fantasies.

              1. “Brett, you can “make that choice”, and you can be hanged for treason.”

                Yes, you’re starting to get it: You can make that choice, and if you lose, you get hung for treason. But you still make that choice yourself.

                Once you’re disarmed, the choice is taken away, and you can’t effectively commit treason even if it’s perfectly justified. And THAT is why governments disarm their citizens: So that they no longer need the approval of their citizens to survive.

                1. Brett, as a matter of history, the notion of citizens armed against their own state, and then overthrowing a domestic tyranny with those arms after things go bad, is a bit peculiar. This particular right-wing paranoid jag is about something which usually happens some other way, if it happens at all. I think you would be hard pressed to find even one historical example—not even the United States—of this romantic scenario which takes up so much space in your commentary.

                  What has actually happened, time and again, is that insurrectionists, for better or for worse, have armed themselves after tyranny arrives, and violent conflict has begun. They have done that by stealing weapons from their adversaries, or by getting weapons from foreign enemies of their domestic adversaries. That is more the true story of the American Revolution than any of this militia stuff.

                  1. What’s peculiar about it? I agree that the usual sequence of events is as you describe. But that’s because the sequence usually takes place in countries that do NOT have any constitutional protection of the right to keep and bear arms, and so they have no other option.

                    Your story of the American revolution appears to be influenced by Belesille’s fraud. The American revolution was fought with American guns, especially at the beginning. It’s true we had some help from the French, but hardly from the start. And we never would have gotten that assistance if we hadn’t been sufficiently armed at the start to put up a decent fight.

                  2. Hello Stephen Lathorp

                    Check out the deterrent effect of an armed public alone. Open confrontation is beside the point. If you look at Germany and other European countries, they have been dictating stuff on their citizens in the pandemic that would even make CA look like the United Federation of Planets. In those EU countries, politicians felt safe to make their plans without the people. Why? Well…

                    Guns deter. Guns make a public grow a spine. Guns tell politicians that there is a fourth power in the system of checks of balances, if they really have to push it. Again, open confrontation scenaria are beside the point and a naive, romantic counter-argument frequently brought up by leftist shills.

          3. “Except it says right in the text that it’s for the government’s sake.”

            Technically, it says the following

            “being necessary to the security of a free State”

            There’s an important bit there. Not just “The security of the State”. But the security of a free State”.

            Why put in that addendum. A “free” State?

            Perhaps…sometimes…if the state wasn’t a “free state”…the militia wouldn’t be intended to protect it. But protect against it?

            1. Nope. Because by their definition, they were creating a free state.

              Remember, if you want to get technical, they were creating a slave state, not a free one. And yet nobody ratifying the Second Amendment thought “this will create a constitutional right of slave revolts”. “Free state” meant the government, which they claimed was free.

              1. No, the exact reason they supported a militia instead of a standing army is that a standing army would always take the government’s side, but it was thought a militia would sometimes NOT defend the government.

                They did not want the government to be safe from the people under all circumstances, only if it had the support of most of the people.

          4. Except it says right in the text that it’s for the government’s sake.

            No. It says that it’s for the country’s sake, not the government’s.

            1. It says “state”. “State” means a government, not a populace.

              1. That makes no sense in the context

                “a well regulated Militia, being necessary to the security of a free Government, the right of the people to keep and bear Arms, shall not be infringed.”

                1. What’s a “free government?”
                2. Doesn’t the Standing Army and Police/Marshalls typically protect the government?
                3. Why would the government remove arms from the organization that was supposed to defend the security of the government, if that’s what the militia is designed to do? Why would there need to be a “right” to stop this from happening?

                It’s a bizarre reading. The best reading here is for the word “State” to mean “country” as David writes.

              2. No; state means a country, not a government.

                I don’t say that there are no contexts in which state is used to refer to government, but that’s usually metonymy. And I don’t think they were using flowery rhetoric when they wrote the Second Amendment; I think it makes much more sense to take it literally.

          5. Correct, but that’s why we have courts. It isn’t why we have guns.

            The courts are part of the government. So yes, that’s why we have guns.

            YOU don’t get to make that choice.

            Yes, I do.

            Except it says right in the text that it’s for the government’s sake.

            No, it most certainly doesn’t. If you’re referring to the “well-regulated” part, then you’re especially wrong, because the use of that term in the late 18th century means the very opposite of what you think it means. “Well-regulated” means regular, as many common persons as possible. Not government related.

            Just like your silly, emotional arguments regarding Covid and vaccines, you’re completely out of your depth here.

      3. Wait, you think the purpose of 2A is to protect the GOVERNMENT? You’re joking, right?

      4. Yeah, pretty much nothing in your first or second paragraphs is correct. You are right in paragraph 3 – and I’ll start listening to your anti-gun arguments when you start arguing that similar restrictions would be appropriate if applied to the First Amendment.

  2. It all depends upon whether a second amendment claim is subject to strict scrutiny, and that in turn depends upon whether it is a fundamental right. Perhaps the Supreme Court will speak to this issue in the 2022 term.

    1. You mean whether 2A means what it says? It does

      1. Nope, Justice Kavanaugh goes by text AND tradition—and traditionally guns have been subject to heavy regulations outside the home. So that is why a movement was necessary in the 1990s to legalize concealed carry because most states had made it illegal for decades…and the residents of those states generally held themselves out as being pro-2A.

        The SCOTUS will find a right to carry a gun outside the home but it will be subject to heavy regulations…and so a municipality like NYC will be able to make it almost illegal to carry a gun outside by using things like school zone legislation.

        1. “So that is why a movement was necessary in the 1990s to legalize concealed carry because most states had made it illegal for decades” In a country that was already a couple centuries old.

          1. Many states had concealed carry illegal for close to 2 centuries…but you do realize that in 1990 there were states that were merely decades old??

    2. It’s an enumerated amendment. That denies any basis for claiming it isn’t a fundamental right. But Heller can be reasonably read to declare it a fundamental right, as it refers to it as having been a fundamental right of Englishmen, which Americans retained.

      1. So you have a fundamental right to a jury trial of your civil claim for $20, but you don’t have one for your claim of $19.99?

        1. It’s fundamental enough the government can’t decide you don’t need it.

          1. That’s not what fundamental means.

            1. What do you suppose it means, then?

  3. Blah blah blah. Can you say “gun violence emergency “?

    Similar to “pandemic emergency” this means the constitution is suspended for our safety.

    And the dopey crew at Volokh will swear up and down that this clause is indeed there in invisible ink.

  4. I think we should require a permit for gay men to have butt sex, and that should have been suspended during COVID. Because butt sex could spread COVID, of course!

    1. For someone who claims to be straight, you sure do obsess a lot about gay buttsex.

      1. I notice the Rev makes frequent allusions to oral rape. Do you suppose he’s a rapist?

        1. The Rev is every bit as much bad publicity for the left as Aktenberg is for the right. That said, I think his allusions to oral rape are intended to be metaphorical whereas Aktenberg really does obsess about gay sex. The Rev mostly talks about force feeding progressive values to conservatives, which is not quite the same thing as actual oral rape.

          But, since to my knowledge I’ve never met either of them, that’s just speculation.

          1. Deviant individuals do that. Their extremely aggressive wishes sublimate into rapey and forceful rhetoric without ever becoming entirely explicit about it. That said, the Rev is likely a pretty sick fuck.

          2. ‘Actual oral rape?’ Versus merely forcing things into one’s mouth without consent? Not seeing any distinction, and the obsessive -your word fits equally well, ‘open wide/r’ ‘if your betters allow’ haranguing indicates one who has or will victimize(d) if granted authority. Given that there is zero difference in behavior as evidenced in your argument, I find it puzzling that you manage to defend one while claiming the other’s behavior is obsessive.

            1. I don’t recall ever defending the Rev’s comments; I’ve said in other threads that I wish he’d stop. But I think that when the Rev. talks about forcing things down people’s throats it is understood that he’s using a metaphor and doesn’t intend to actually physically force anything down someone else’s throat.

        1. To be clear, since Brett snuck in while I was forgetting to refresh the page, mine was a response to Krychek_2 re: Aktenberg.

          1. Yah, don’t know if this is a true story, but supposedly a woman once came up to Gore Vidal and yelled at him for writing dirty books. And she knew they were dirty books because she’d read every one of them.

            Here’s what makes me suspicious of Aktenberg: If we were to poll heterosexual males on the question of how often do they think about gay buttsex, “never” and “almost never” would be the favorite answers. Aktenberg, however, seems to think of nothing else.

  5. Part III analyzes another metric to decide whether the right to keep and bear arms is essential: the people. During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential

    One consequence of trying to read the militia clause out of the 2A is that by making it vague—by expunging a specific justification for the amendment—you invite cockamamie inferences that arms bearing must be a protected right for any and every purpose under the sun. Whatever you may think about personal self-defense, or participation in a militia, you cannot reason that constitutional protection for those purposes equates to universal protection—for instance, for holding a gun show during a deadly pandemic.

    There are many legitimate purposes for which arms might normally be used which cannot be regarded on that basis as essential uses of arms during a pandemic. The practice of biathlon training and competition may or may not spread much disease, but keeping that activity going cannot be a legitimate reason to make an exception to keep a gun store open during a pandemic.

    In some areas, there may be popular support for insurrections to resist public health measures. But nothing in the 2A justifies a right of armed insurrection for any purpose, legitimate or otherwise. If indeed a run on the gun stores is a harbinger of an anti-public-health insurrection, a public health emergency might even justify closing the gun stores to prevent that. Nothing about the 2A says that legitimate constitutional ends become illegitimate or unconstitutional because gun enthusiasts oppose them. The 2A does not extend to the obliteration of every constitutional power with which it might conflict.

    1. Personal protection is the reason for 2A

      1. Nope. It’s about protection of the government. It says so right in the text. The well regulated militia (i.e., America’s gun owners) will protect the security of our government.

        1. Nope. It’s about protection of the government. It says so right in the text. The well regulated militia (i.e., America’s gun owners) will protect the security of our government.

          You think “the security of a free State”, as used in a series of amendments…the sole purpose of which was to protect “the people” (you know, the group referred to in “the right of the people”) from abuses of the government the base document was creating…refers to protecting the government? You do know that “state” is not a synonym for “government”, right?

          1. Yep.

            Because elsewhere in the Constitution it says the government can suspend habeas and throw you in prison if you rebel, and can execute you if you levy war on the United States.

            The “free state” the Constitution is referring to is the United States of America.

            1. Yes, the government was given the powers a government needs to govern when the people have its back, and the people were given the rights they need to bring it down, when the government turns out to not have their’s.

              1. Brett, who was doing the giving.

            2. The “free state” the Constitution is referring to is the United States of America.

              Which is not “the government of the United States of America”.

              Again, I question how the hell you made it through law school without understanding the difference.

        2. It’s just beyond you that “the security of a free state” isn’t the same thing as “the security of our government”, isn’t it? Suppose our government doesn’t want to be a free state?

          1. Defund the police?? Let’s burn the whole thing down…right? The Framers were supporters of law and order and President Washington called forth the state militias to suppress an insurrection.

            1. We are going to reform the police, not defund the police. Conservatives get to watch and whine as we do it.

              1. “Defund the police” cost Democrats a lot of seats in state legislatures and Congress…people want law and order but they don’t want Black men getting choked to death for selling cigarettes or trying to buy beer at a convenience store or getting shot because they had a hand rolled cigarette next to a gun!?!

                1. “Defund the police” was a silly, counterproductive slogan, used expertly by the right-wingers. It influenced a few elections, but it won’t change the long-term trajectory, which involves the liberal-libertarian mainstream arranging progress with respect to policing against the wishes and works of “law and order” conservatives, many of whom are racist or at least bigot-curious.

                  1. Lmao

                    “Defund the police” used expertly by right wingers like BLM? Shit, you’re lost… 😀

                    1. He means that, just because the left were using it, didn’t mean the right had any right to point that out to anyone who’d react negatively.

          2. Suppose our government doesn’t want to be a free state?

            You go to court.

            Or, you levy war on the United States, get caught, and get executed pursuant to the terms of the Constitution.

            Your choice.

            1. So, if the government doesn’t want to be free, you go to a part of the government, begging the government to change its mind?

              “Or, you levy war on the United States, get caught, and get executed pursuant to the terms of the Constitution.”

              Unless you win. “Why doth treason never prosper? For if it doth prosper, none dare call it treason.”

              We’re talking about an amendment written by people who had committed treason by waging war against their own government not 13 years earlier! Has that somehow escaped your awareness?

              Do you really have to pretend they’d never have considered that the government they were creating might someday deserve the same treatment? We know they considered that a possibility, they came right out and said it!

        3. The Constitution serves to protect the people, not the government. The government is constrained by the Constitution, and it doesn’t need protection from itself. You’re an idiot.

        4. Nope. Not protection OF the government, but rather Protection FROM the government.

          1. State militias are the government.

            1. No, that’s precisely the difference between militias and armies. The militia are the people temporarily taking up arms, the army is full time.

    2. “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”

      -Benjamin Franklin

      1. Commenter_XY, I have noted repeatedly that when bogus quotes from historical figures show up, folks who read historical documents typically don’t even need to look up such “quotes” to know they are fake. That thing which Franklin did not say is an example. If you understand from bygone context the founders’ uses of, “Liberty,” you know that imposture did not come from any of them. That quote puts, “Liberty,” in modern, libertarian garb—the founders, not being libertarians, did not use it that way.

        1. Still, it’s good to see a bit of diversity in these fraud quotes. For once Commenter_XY gave poor Jefferson a rest. If you’re going to construct an “argument” out of phony quotations from Founding Fathers, why not spread the wealth?

          1. I find fraudulent quotes an entertaining genre. Generally speaking, they’re usually pretty obvious if you have any familiarity with the actual words of the person they’re attributed to. This particular ‘quote’ seems to have originated in the 80’s, but Franklin DID say, “And there is Truth in the Old Saying, That if you make yourself a Sheep, the Wolves will eat you.”

    3. One consequence of trying to read the militia clause out of the 2A…

      Give your bullshit false premises a rest. Nobody has tried to read the militia clause out of 2A. Some have tried to get dullards like you to understand what it means, but have found that’s like trying to explain string theory to a sea urchin.

    4. If indeed a run on the gun stores is a harbinger of an anti-public-health insurrection, a public health emergency might even justify closing the gun stores to prevent that.

      You must have a steady supply of much better weed than I ever experienced during the ’70s.

    5. “One consequence of trying to read the militia clause out of the 2A”

      To reiterate what WuzYoungOnceToo had to say: Nobody is reading the militia clause out of the 2nd amendment. The amendment secures the militia by guaranteeing that the people can be armed, so that you have a population from whom a militia can be expediently raised even if the government didn’t want it to be possible.

      The amendment aims to protect the militia system against the government itself.

      You, by contrast, are attempting to read, “right of the people” out of the amendment.

      1. The amendment secures the militia by guaranteeing that the people can be armed, so that you have a population from whom a militia can be expediently raised even if the government didn’t want it to be possible.

        Raising a militia up against the government is a “rebellion” (which means habeas corpus can be suspended and the entire “militia” imprisoned) and, if shots are fired, treason (levying war against the United States). The Constitution is brutally clear that YOU HAVE NO RIGHT TO RAISE A MILITIA AGAINST THE GOVERNMENT. Not any.

        And the Second Amendment says it too. Your job, as part of a well regulated militia, is to PROTECT the government. It says it right in the text. That’s what the militia is all about.

        Now, yes, you do have the right to keep and bear arms. Absolutely. And it’s an individual right- the “collective rights” stuff was BS. But it’s an individual right to keep and bear arms so that the government can commit you to the civil defense of this nation. If you use your weapon as part of a collective force against the US government, the government can imprison you without trial or kill you.

        1. “Raising a militia up against the government is a “rebellion””

          Which just happens to be what the people who wrote the Bill of Rights had done themselves less than 15 years earlier.

          ” Your job, as part of a well regulated militia, is to PROTECT the government. It says it right in the text.”

          No, the security of a free state is not the same thing as the security of the government. Governments don’t always want to be free states.

          1. Which just happens to be what the people who wrote the Bill of Rights had done themselves less than 15 years earlier.

            That confuses a lot of people. How, for instance, could Jefferson—a committed revolutionist who was not censorious of even the French terror—write approvingly of spilling the blood of, “patriots and tyrants,” in reference to Shay’s Rebellion? The answer, of course, is that the founders distinguished legitimate rebellions from the others. Their own, they were convinced, was entirely justified, because it was in defiance of an unjust sovereign. But rebellions against the United States by its own citizens were unjustified, because American liberty was protected by its own innovation of popular sovereignty—so American rebels would only be rebelling against themselves. That is what Jefferson alluded to when he said Shay’s rebels acted out of ignorance, and needed education.

            Brett, your view of the case is not without foundation, but its foundation comes mostly from pro-slavery anti-federalists—a group which was and remained steadfastly convinced that they were legitimately to be reckoned a law unto themselves. Even the Confederate government during the Civil War could not command the loyalty of many of them.

            Just in passing, it is remarkable how many of the would-be originalist libertarians on this blog seem to prefer to reference anti-federalists—even at the risk of aligning themselves with the pro-slavery part of the nation’s history. The commitment of that group to liberty was entirely self-serving, founded on a deeply held belief that liberty for all was impossible. They believed liberty was best maximized by dividing people into a libertarian caste and a tyrannized caste, with liberty for the former counting for everything, and degradation of the latter reckoned a virtuous necessity to achieve that result.

            1. They thought they were creating a good government, but they weren’t stupid enough to assume it was guaranteed to stay good.

              “Just in passing, it is remarkable how many of the would-be originalist libertarians on this blog seem to prefer to reference anti-federalists—even at the risk of aligning themselves with the pro-slavery part of the nation’s history.”

              Project 1619 much?

            2. The answer, of course, is that the founders distinguished legitimate rebellions from the others. Their own, they were convinced, was entirely justified, because it was in defiance of an unjust sovereign

              To be clear, this is letting the framers off the hook.

              The framers never believed that treason was actually not treason, or that revolution in general was justified. The Constitution does not contain ANY exception for justified treason.

              They simply believed that they could win a war against the British, which would benefit them (by, for instance, securing Jefferson’s right to rape Sally Hemings), and that deploying rhetoric about just revolutions that they didn’t really believe in would help rile up public support.

              1. “The framers never believed … that revolution in general was justified.”

                Maybe not ‘in general’, but given that they had just fomented one I think it’s safe to say they believed that revolutions were OK in some circumstances. Like, for example, if some current king wasn’t elected, or some future president decided to keep ruling without the nicety of elections.

                (or, more precisely, if some future president decides to forgo elections going forward, and the unorganized militia ‘restores democracy’ by insisting on continuing the tradition of having elections and honoring the results)

                1. I don’t believe the plan is to actually stop having elections; Even Stalin held elections, after all.

                  Rather, it’s to rig the process so completely that they no longer have to worry about being turned out of office.

                  Our urban centers are all miniature one party states, if they can extend that control to the suburbs, they’ll have a controlling majority even if they do badly everywhere else, and they can just rule the entire country from the urban centers while taking their time bringing the rest of the country to heel.

                  At least, that’s the plan, as I understand it.

            3. “it is remarkable how many of the would-be originalist libertarians on this blog seem to prefer to reference anti-federalists”

              Hamilton, the author of Federalist 28 and 29, was not an anti-federalist. Nor was Madison, the author of Federalist 46, an anti-federlist. Nor was Tenche Coxe, nor Joseph Story. Each of them knew and wrote about the difference between Insurrection and defense against usurpation of the rights of the people by those in authority.

        2. Raising a militia up against the government is…

          …not what Brett said. You’re getting as bad as Sarcastr0.

          Your job, as part of a well regulated militia, is to PROTECT the government. It says it right in the text.

          Try again. The word “government” (or it’s functional equivalent) appears nowhere in 2A.

          But it’s an individual right to keep and bear arms so that the government can commit you to the civil defense of this nation.

          No, the protection of the ability to raise an effective militia is cited as a reason for enumeration of that right, it’s not cited as the basis for the right. How the hell did you get through law school with such piss-poor English and reasoning skills?

          1. ISIS will have no problem taking over America using protections afforded by the FEC and 2A—we kill infidels as part of the unorganized militia exercising of deeply held religious beliefs!! What a country!! 😉

        3. “But it’s an individual right to keep and bear arms so that the government can commit you to the civil defense of this nation. If you use your weapon as part of a collective force against the US government, the government can imprison you without trial or kill you.”

          Whether you are rebelling against or protecting a government depends to some degree on who wins 🙂

          Suppose some future president announces that he is suspending elections and the Bill of Rights for the duration of the emergency du jour.

          If what he is doing is generally viewed as necessary in the unfortunate then-current circumstances, but a handful of people take up arms to try and force him out, that’s a rebellion. If on the other hand the people generally don’t view his actions as necessary and forcibly remove him from office, that’s defending the nation.

          All the 2A is trying to prevent is the (historically all too common) situation where a small slice of the population holds a monopoly on military power and uses that monopoly to suppress the disarmed majority.

          1. Whether you are rebelling against or protecting a government depends to some degree on who wins

            It is very true that if treason succeeds, none dare call it treason.

            But that’s because treason is extra-legal, not because it is a constitutional right. If treason fails or you get caught before it succeeds, the government’s right to punish you for bearing arms against it is not in question.

            1. Yes. Might equals right.

              1. I know this sounds offensive, but with respect to treason (or more generally, violent revolution, it really does. You either win or you end up in deep trouble.

                1. Yes, on that, we agree.

                2. That’s actually the theory behind preferring a militia to an army.

                  If you revolt and your revolution actually has the support of the people, the militia will refuse to be used against you, but instead take your part, because the militia ARE the people. If you revolt without the support of the people, the militia will take the government’s part, and put you down, for the same reason.

                  An army would take the government’s side in BOTH circumstances, because it is carefully selected for that loyalty.

                  That’s why a militia, and NOT a standing army, is necessary for the security of a free state: Because the militia, but not the standing army, would act differently depending on whether or not the state was free.

                  1. The loyalty the government’s army would have under those circumstances is even questionable. Look at how many servicemen participated in the “insurrection” on January 6. I suspect it would only take a few vocal dissidents within the army to rally support from a huge number.

                    1. They’re hard at work on purging the military of “politically unreliable” officers as we speak. It will take a long time for that to penetrate down to the level of the average serviceman, but the officer corps will be under firm political control in just a few years.

                    2. That’s been the case with the flag officers for a long time. But the officers who don’t swallow the party line will still be there, they’ll just be quieter about it.

            2. Treason is not a constitutional right in America.

              The capacity to commit it? Absolutely is.

    6. “During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential”

      Here’s a question for someone with a better memory than me: Early-on in the pandemic, wasn’t Professor Blackman the Conspirator who noted the wild-eyed-panic buying of toilet paper & guns by tremulous terror-stricken suburbanites – and then insisted (with great solemnity) the latter purchase would prove more critical?

      Even at the time I had no problem in calling-out that prediction as dumbass in the extreme. Sure, Charmin stacked up to the roof joists may tax practicality, but it will still have a use given enough time. All those guns? Not so much.

      Gun nuts always brag about their latest bout of frenzied gun purchasing. The election of a Democratic president was the most recent “trigger” event, as sure to send fearful & disheveled mobs flooding the gun stores as the cicadas popping out of the ground on cue (tho I bet cicadas put more thought into their actions)

      Still, the Zombie Apocalypse never arrives. This is too bad. It’s a shame to see so much panic and fear go to waste…..

      1. Here’s a question for someone with a better memory than me

        Starting with the premise that the reliability of your memory is in question regarding the subject, then proceeding anyway with condescending blathering based on that questionable reliability should embarrass even the most lacking in insight.

        wasn’t Professor Blackman the Conspirator who noted the wild-eyed-panic buying of toilet paper & guns by tremulous terror-stricken suburbanites – and then insisted (with great solemnity) the latter purchase would prove more critical?

        If this is what you’re referring to…

        https://reason.com/volokh/2020/03/22/divided-pa-supreme-court-governor-can-shut-down-firearms-dealers-during-coronavirus-emergency/

        …then you should have stopped after asking that question. At the end of the piece above he speculated about the likelihood of civil unrest growing, and the relative utility of firearms vs toilet paper stockpiles in the event that it did. Unless you’ve already forgotten the mass destruction of the numerous “mostly peaceful” protests that occurred then we can say that while things did not go as badly as he was concerned they could, those concerns were not completely without merit either. There was not talk of anything even remotely on a par with zombies or TEOTWAWKI.

        1. Why, thanks! I felt a twinge of nostalgia reading the exchange. Please observe I did indeed predict at the time T.P. would prove more utile than all the vast armories of the terrified & panic-stricken – and was subsequently proved spectacularly correct by events.

          Of course I was prepared to admit I was wrong if the gun nuts’ wet-dream fantasy occurred, and they really needed to heroically shoot it out with armies of evil-doers, but – hey – what are the odds of that?

          After all, if people actually purchased guns as they do any other tool – thoughtfully considering what remote microscopic chance their purchase will serve any purpose – then there’d be millions upon millions fewer guns in this country. And it would be a much better place. (I’m sure we can all agree on that)

          1. Why, thanks!

            I’m always glad to help out those who are so feeble-minded that they’re incapable of performing a simple Google search themselves.

            Please observe I did indeed predict at the time T.P. would prove more utile than all the vast armories of the terrified & panic-stricken – and was subsequently proved spectacularly correct by events.

            Yesterday I predicted that the sun would rise again this morning, and was proven spectacularly correct by events. Of course, neither of these predictions has anything to do with what you falsely claim that the blog post in question said.

            But just keep taking that victory lap around an empty track.

            1. Uh huh. Your bullshit might work if you yourself hadn’t provided the link. The blog post in question said this :

              Blackmann : I’ll close with a policy argument. Our society is veering towards uncharted waters. At some point, I worry that civil unrest will spread. And I am not confident that first responders will be able to handle violence, looting, and other forms of crime. Indeed, the very act of arresting a person requires physical contact with a person who may be symptomatic. Business in Philadelphia, Chicago, and across the country are already boarding up their windows. The right to bear arms for defense is especially important in such times of conflict. You may dial 9-11, and the response is, “sorry, we can’t help right now.” At that point, Governor Wolf’s executive order will not provide any protection. A functional firearm will be far more useful than a pallet of toilet paper.

              I responded to this lurid fantasy thus : “I’d put my money on toilet paper.”

              Game, set & match to me!

              1. Gun nuts are among my favorite culture war casualties.

                The predictable mainstream backlash against gun absolutists is going to be severe. Hitching your political wagon to the losing side of a culture war will precipitate consequences, as gun nuts and anti-abortion absolutists are to learn soon enough.

                1. Awww, look which loser is trying to predict better weather for themselves. 😀

                  Slowly realizing your crystal ball’s been a bit malfunctioning lately, huh? 😉

                  1. The irony here is that there is no culture war front on which the left have suffered more losses than their fight for gun control. And yet the Rev describes us as “culture war casualties”, and predicts an eventual backlash that shows no sign of ever arriving.

                    1. I’m wondering if the Rev is even aware of his effect on public opinion. All he does is make the left look bad, I would dare to say exclusively. I was hypothesizing that he might actually be perfectly aware of that and just keeps on trolling to make it happen. I mean, what if the Rev cheers and jubilates every time he gets this kind of backlash? I can’t take this character at face value anymore.

              2. Uh huh. Your bullshit might work if you yourself hadn’t provided the link. The blog post in question said this :

                Uh…which is exactly what I claimed it said. It was a comment on the relative value of firearms and toilet paper in the event that public unrest continued to escalate to that point (which was not a “lurid fantasy” at the time given the amount of rioting, burning, looting, etc was going on in major U.S. cities). It wasn’t a prediction that it would in fact escalate to that point, let alone any sort of zombie apocalypse hyperbole.

                But I’m sure the voices in your head are all impressed by your declaration of victory.

              3. “And I am not confident that first responders will be able to handle violence, looting, and other forms of crime.”

                I seem to remember that we had just that situation in more than one city over the past 18 months.

              4. The BLM riots proved you incorrect. We did have civil unrest, and the government itself approved of it. Josh was right; you were wrong.

          2. Personally, I responded to Covid by purchasing a bidet. It’s truly amazing how long you can stretch a roll of TP once you have one.

            Anyway, guns are like insurance, in the sense that you don’t need them until you do, at which point you’re out of luck if you don’t already have them. I don’t advise that you wait until your house catches fire to buy a fire extinguisher, either, though the odds are you’ll never use it.

          3. “…remote microscopic chance their purchase will serve any purpose”.

            Just a reminder that guns aren’t singularly purchased for putting down an urban riot. They are (as the judge in California described) like a Swiss army knife, with multiple peaceful utilitarian applications. A gun can protect you, can feed you (hunting), entertain (formal and informal target shooting), serve as a hobby-collectable, and financial investment (generally appreciating in value).

            Further, a self defense weapon doesn’t need to be fired to have usefully served it’s owner. The presence of firearms in homes and businesses acts as a full time, 24/7 deterrence to potential attacks and provides tangible feelings of security year round to those keeping them.

    7. The 2A does not extend to the obliteration of every constitutional power with which it might conflict.

      … and which constitutional powers are these ? The constitutional power to set aside the constitution perhaps ? Perhaps it is yet another dishonest exhortation that “promoting the general welfare”, allows you to exercise all sorts of powers in conflict with the other parts of the constitution. By all means, let us know what you think it conflicts with.

    8. The 2nd amendment, like every constitutional right, ‘obliterates’ every constitutional power with which it might conflict, to the extent that power might be used to infringe the right.

      That is the very purpose of rights: To establish things that are beyond the power of, government to do.

      The government retains every enumerated power, but may not use any of them to violate rights.

      1. No constitutional right “obliterates” every other governmental power. It restricts them, but it doesn’t obliterate them.

        1. Thus, “to the extent that power might be used to infringe the right”.

          I agree, no constitutional right obliterates governmental power. It ‘obliterates’ particular uses of governmental power.

        2. No constitutional right “obliterates” every other governmental power. It restricts them, but it doesn’t obliterate them.

          Don’t you think that’s what “to the extent that power might be used to infringe the right” and “The government retains every enumerated power, but may not use any of them to violate rights” were all about?

          1. Rights don’t obliterate powers, because rights are not absolute.

            1. No one ever claimed rights are absolute. Why do you morons continue with this asinine strawman?

              1. Because it’s all they’ve got. Any right can be infringed under some circumstances, this is a right, these are circumstances, therefore we can infringe it.

                1. Yes. With respect to guns, it takes this form:

                  “We’ve already established that nuclear bombs are ‘arms’ and since we all agree that the government can regulate those, the government can regulate any weapon, including by banning all guns.”

                  1. Nuclear bombs aren’t SMALL arms; they have no application for unit infantry applications during war. Didn’t US vs. Miller already establish the principle that personal martial weapons “suitable for use in a militia” are what the 2nd Amendment protects? There is no lucid argument that a weapon of mass destruction that kills indiscriminately is a small arm useful for members of a militia. Please stop bringing this silly analogy up.

                    1. Please re-read my post. *I* didn’t bring that analogy up. I am repeating the analogy that leftists frequently use.

            2. Rights don’t obliterate powers, because rights are not absolute.

              Give it up. We already have a proclaimed king of the dishonest straw man douchebags, we don’t need a pretender to that throne.

    9. Let’s take Stephen’s paragraph:

      “There are many legitimate purposes for which arms might normally be used which cannot be regarded on that basis as essential uses of arms during a pandemic. The practice of biathlon training and competition may or may not spread much disease, but keeping that activity going cannot be a legitimate reason to make an exception to keep a gun store open during a pandemic.”

      The argument that biathlon training is not a legit reason to keep gun stores open is a pretty weak strawman, but a strawman, nonetheless. Are gun stores “essential” in times of widespread civil violence? Indeed, they are. The standard that should have been applied is not f gun stores in isolation, but other essential stores: grocery, general merchandise, etc. Was a Wal-Mart ever closed?

      Left-leaning, gun-grabbing politicians used this crisis as an excuse to make life difficult for gun owners, and to drive gun stores out of business. Massachusetts shut down gun sales UNDER ANY CIRCUMSTANCES in April 2020, so this obviously had nothing to do with the virus, as even private, appointment-only sales were prohibited.

      Mass. gun stores sue Baker administration over business restrictions

      1. Thankfully they prevailed not long after, too.

    10. “One consequence of trying to read the militia clause out of the 2A is that by making it vague—by expunging a specific justification for the amendment”

      Stephen, reading is fundamental. The militia clause is a justification for the non-infringement of the right of the people to keep and bear arms.

      To your other point, the framers knew the difference between “insurrection” and “defense against usurpation by the rulers.” How is that so many lawyers today are unable to make that distinction?

      In Fed 28 Hamilton compares the ability of people to defend themselves against tyranny in a single state versus in the proposed federal system:
      “The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.”

      Similar arguments are made in Fed 29 and 46. Moreover, the very first commentator on the second amendment, Tench Coxe, wrote:
      “As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”

      Another early commentator, Joseph Story, wrote:
      “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

      The TN supreme court in Aymette:
      “The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution”
      and…
      “so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.”

      The last cite shows that not only were the people to keep arms to repel encroachments on their rights by those in power, but is crystal clear that the arms they were to keep were equal to that of the regular army.

  6. Ha ha. You don’t need a “reason “ to buy a gun?

    3 paragraphs of laughable gibberish. A libertarian site sure seems to attract the opposite.

  7. In reading the comments above, about the premise and original meaning of the Second Amendment, I think we also need to factor in the possibility that even if Second Amendment absolutists are right that the purpose of the Second Amendment was for people to be able to protect themselves from the government, at this particular moment in history the far greater risk is from armed mobs who don’t believe in democracy. Yes, I know, a lot of the January 6 rioters really did believe that the election was stolen from Trump, but it’s not really that great a leap from “the election was stolen” to “I don’t care if it was stolen; I’m keeping my guy in office by force.”

    We don’t have a George III imposing tyranny from afar. What we do have is a majority of the population that wants policies that are unpopular with the radical right, some of whom are more than willing to take up arms to keep progressive policies from being enacted. Whatever the Second Amendment does or does not mean, or whatever the original intent may or may not have been, if it’s going to be used to overturn democratic governance, that’s a problem. So I suppose the question is this: How do you protect George Washington while at the same time not protecting Mussolini?

    1. And on the subject of Mussolini, here’s a quote from him that, unlike the Ben Franklin one above, actually is a genuine quote:

      “Democracy is beautiful in theory; in practice it is a fallacy. You in America will see that some day.”

      1. And Mussolini employed an unorganized militia, Black Shirts, to consolidate power and institute tyranny. The January 6th insurrectionists are part of the “unorganized militia” that conservatives created in order to lay the groundwork to create a RKBA while staying “true” to the originalist/strict constructionist judicial philosophy. Framers feared tyranny AND anarchy…because anarchy inevitably leads to tyranny!

        1. The January 6th insurrectionists are part of the “unorganized militia” that conservatives created in order to lay the groundwork to create a RKBA while staying “true” to the originalist/strict constructionist judicial philosophy.

          Holy crap. You really need to make an appointment with your physician/psychiatrist (or both) first thing in the morning and get one/both of them to adjust the meds you’re on…or should be on.

          1. Is there some body that gets to determine which groups are part of the official “unorganized militia”?? Omg, you are gullible fool.

            1. Is there some body that gets to determine which groups are part of the official “unorganized militia”??

              That would be Congress, via 10 U.S. Code § 246…you mouth-breathing window-licker.

              1. Bellmore’s arguments are logical even though he is wrong…you have derailed.

                1. Bellmore’s arguments are logical even though he is wrong…you have derailed.

                  I repeat, get your meds adjusted. You asked if there was “some body that gets to determine which groups are part of the official “unorganized militia””, and I gave you the factually correct answer.

        2. ‘ The January 6th insurrectionists are part of the “unorganized militia” that conservatives created in order to lay the groundwork to create a RKBA while staying “true” to the originalist/strict constructionist judicial philosophy.’ It’s been said, but you really need to seek counseling for this sort of thinking. You also left out the ‘deadly and armed’ bit when describing the insurrection that wasn’t. Failure to adhere to the authorized narrative will result in a debit in social credit.

    2. Personally, I’m not a 2nd amendment absolutist. I’m an “entire Constitution” absolutist.

      1. Awesome virtue signaling.

        I, too, am a passionate defender of what I think the Constitution means and does.

        1. Perhaps there are some First Amendment absolutists — who believe Americans’ right to expression includes securities fraud, child pornography, defamation, severe threats, and the like — but I sense they are few and disrespected.

          1. Yeah, I know the only things you leftists think are absolute are the supposed “right” to bareback another dude and give him HIV.

            1. For someone who claims to be straight, you sure do obsess a lot about gay sex.

    3. even if Second Amendment absolutists are right that the purpose of the Second Amendment was for people to be able to protect themselves from the government

      That’s wasn’t the purpose of the amendment, nor is that the predominant pro-2A position. The purpose of the amendment was to enumerate and provide explicit protection for the already recognized “right of the people to keep and bear arms” because it was feared that not doing so could prevent the formation of a “well-regulated” (well equipped and functioning) militia from being assembled when needed. You’re confusing the enumerated right with the reason that was given for explicitly enumerating the right. That’s hardly surprising given that you think the free speech and establishment clauses of 1A are redundant.

      at this particular moment in history the far greater risk is from armed mobs who don’t believe in democracy. Yes, I know, a lot of the January 6 rioters really did believe that the election was stolen from Trump but it’s not really that great a leap from “the election was stolen” to “I don’t care if it was stolen; I’m keeping my guy in office by force.”

      How odd that you would talk about the danger posed by “armed mobs” and then cite an example of a mob that wasn’t armed. Perhaps you were thinking of the groups that spent their time hurling Molotov cocktails, trying to burn down federal courthouses (among many other buildings), stalking and shooting Trump supporters from behind, etc?

      1. I’m not confusing anything; I said “if” the Second Amendment absolutists are right about it. I haven’t said that I agree with them.

        With respect to the January 6 mob being unarmed, I guess you missed all the news stories about the guns and bombs that were found in the immediate vicinity of the Capitol. But even if I were to concede that the January 6 mob was entirely unarmed, there’s no guarantee that will be the case next time. Listen to right wing militia rhetoric. Some of them really are preparing for civil war.

        1. I’ve heard of two bombs, and from what I saw of them, I’ve concluded they were props. I’ve heard of guns being found “in the immediate vicinity of the Capitol”, if by “immediate vicinity” you mean somewhere within a 20 mile radius, with precisely nobody actually AT the Capitol having been demonstrated to have been armed.

          And as WuzYoungOnceToo said, after all of last year’s violent rioting, a couple billion in property damage, dozens dead, arson of occupied buildings, to point to January 6th as an example of an armed mob is just madness. The left was a thousand times more violent last year, for months on end.

          1. So do the BLM protesters get the all important designation of being part of the “unorganized militia”??

            1. Sure, I would presume they are. Doesn’t immunize them for what they did, but they’re still members.

              1. Anarchy begets tyranny…an armed population that devolves into anarchy will end up like Afghanistan…an unarmed population that devolves into anarchy will end up like Cuba. I think the summer of 2020 gave all Americans a refresher on why we don’t want anarchy and why we want law and order…but unjust law and order begets anarchy.

                You appear to think the 2A was about protecting unorganized militia groups like the KKK and Antifa…but the 2A was really about law and order because one of President Washington’s first actions was to call forth the state militias in order to support an insurrection by the unorganized militia. So keeping law and order was a way to prevent tyranny.

                1. “Support” should be “suppress”

                2. Neither the KKK nor it’s successor, the Antifa, actually need the 2nd amendment, because the government doesn’t WANT them disarmed. The Antifa, like the KKK before it, are violent proxies for government, and are protected in their crimes by local prosecutorial discretion.

                  It wasn’t the KKK that needed the second amendment, it was the Freedom Riders who needed it, so they could defend themselves.

        2. I said “if” the Second Amendment absolutists are right about it. I haven’t said that I agree with them.

          Your crappy literacy skills betray you once again. I didn’t suggest that you agree with anyone. I said your claim about what they argue is a false one.

          With respect to the January 6 mob being unarmed, I guess you missed all the news stories about the guns and bombs that were found in the immediate vicinity of the Capitol.

          I didn’t miss anything. As Brett pointed out, none of those stories indicated that any of the individuals who entered the Capitol Building were armed, and so they’re quite irrelevant. Hell, they didn’t even establish that the alleged “bombs” were real.

          But even if I were to concede that the January 6 mob was entirely unarmed

          It’s cute that you’re trying to make acknowledging the available information sound like a generous concession on your part.

          there’s no guarantee that will be the case next time.

          There’s no guarantee that you won’t walk into a crowded public space tomorrow with a boat-load of high explosives strapped to your chest and self-detonate in order to take as many people with you as you can. I hereby declare you to be the greatest threat to the public in your general vicinity.

          Listen to right wing militia rhetoric. Some of them really are preparing for civil war.

          Have you tried listening to the rhetoric from extreme leftist groups calling for revolution, killing “fascists” (defined as anyone they don’t like)…not to mention the actually extreme violence they’ve been engaged in over the past couple of years?

          1. Can someone let Wuz’s owner know he’s barking again and needs to be whacked on the head with a newspaper?

    4. So I suppose the question is this: How do you protect George Washington while at the same time not protecting Mussolini?

      A big answer is that Washington wasn’t really protected. It’s perfectly accepted that if the British won the Revolutionary War, they could have tried him for treason. It was winning the war, not any sort of legal argument, that protected Washington from that fate.

      The central problem with the conservatives here in this thread on gun rights is they literally think the Second Amendment gives them the right to commit treason. It just doesn’t- as evidenced by the presence of a treason clause in the same Constitution.

      1. No, we literally think it gives us the right to the means to commit treason. Just as the 1st amendment gives us the right to the means to commit sedition. That if you lose the means to commit treason, you can’t commit it even if it is perfectly justified.

        And we think the 2nd amendment is the canary in the coal mine of the Bill of Rights. That there is no clearer evidence the people running the government have plans that would make us desperate to shoot them, than their determination to take away our guns.

        That’s the dynamic here: The more determined you get to take them away, the more convinced we become that we don’t dare let you.

        1. That is absurd—the entire point of the Constitution is to perpetuate the republic by balancing liberty with order. I am sure you have visited Mount Vernon and Monticello and Montpelier—do you really think the men that inhabited those multi thousand acre plantations wanted anarchy??

        2. That argument doesn’t get you where you want to go.

          For instance, you could argue that the Fourth Amendment gives you the means to commit treason, because as a practical matter it allows you to conceal evidence of violent plots against the government. But that doesn’t mean that the government can’t search your property under the exigent circumstances doctrine if you are about to act violently against the government.

          The Second Amendment protects your right to keep and bear arms, which you could, if you were a seditious traitor, use to commit the capital offense of treason. Or just rob a bank with, I guess. But either of those things would NOT be protected by the Second Amendment, and the Second Amendment does not protect your right to own the most dangerous weapons simply because it will allow you to commit treason, or rob a bank, easier.

          1. The 2nd amendment protects the means to effectively commit treason, because it is as much treason to overturn a dictatorial tyranny as it is to overturn an enlightened free republic.

            It doesn’t protect the actual commission, because that would be stupid: No government that needed to be overthrown would permit itself to be, even if its constitution said it should.

            But by including a right to the means in the constitution, you achieve two things: Preserving the means against the day they’re needed, AND providing a warning that your government is evolving in a direction where you’re liable to need them.

      2. It actually does, the Civil War happened and leading up to the war the federal government wasn’t able to disarm the state militias because of the 2A. So the 2A was a response to the events at Lexington and Concord.

    5. What percentage of that majority are composed of 80 IQ third world non whites who don’t belong here in the first place?

  8. If the Second Amendment is “essential”, it’s a wonder this country somehow survived all those years before the Heller decision.

    1. That’s like asking why houses where the fire extinguisher has expired don’t immediately catch fire.

    2. Because outside of 6 or 7 states, most states generally treated gun rights like they were essential. That’s not to say there weren’t some problems around the margins, but it was largely treated as a right in those places.

  9. “These policies were adopted not to stop the sale of guns, but to stop the spread of the novel coronavirus.” That’s… unnecessarily generous of you.

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