I read Justice Scalia’s opinion with both great interest and trepidation to see whether he embraced insurrectionist theory, that is, the argument that the Founders adopted the Second Amendment as a check against governmental tyranny.  What’s more repugnant to constitutional democracy and the rule of law – not to mention traditional conservatism – than the idea that the people should be armed to potentially go to war with their own government?  Nonetheless, this theory has animated much of the individual right literature.  Its popularity has undoubtedly disturbed the sleep of giants on both sides of the Atlantic.  Surely, insurrectionism has had both James Madison and Edmund Burke spinning in their graves.

Clearly, Justice Scalia tried to be careful not to expressly embrace insurrectionist theory.  Yet he alludes to it gingerly – a sort of toe in the water. He writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”  Call me foolish, but I was hoping that the conservative Court would expressly repudiate insurrectionist theory.  Somewhere, Robespierre is smiling.

The irony of Bogus citing Robespierre in support of the idea that “a check against governmental tyranny” is “repugnant to constitutional democracy and the rule of law” is just too much.  I also note that he conveniently omitted Thomas Jefferson from his not-so-carefully plucked list of historical figures.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Posted by: Old Grouch in In Passing at 16:41:06 GMT | No Comments | Add Comment
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