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Josh Horwitz

Josh Horwitz

Posted: February 20, 2008 04:44 PM

Will the U.S. Supreme Court Endorse a Right to Armed Revolt Against Government


This month's horrific shootings in Kirkwood, Missouri provide an all-too tragic and real context for the scholarly debate over the Second Amendment that is now before the Supreme Court in the case of Heller v. District of Columbia (Parker v. District of Columbia in the lower court). One of the key issues in the case is whether the Second Amendment protects an individual right to armed revolt when an individual perceives the government's actions to be "tyrannical."

The Missouri shootings reveal that some of our citizens condone such violence. Charles Lee "Cookie" Thornton had been embroiled in a long running property dispute with the City of Kirkwood and its City Council. On February 7, he stormed a meeting of the council armed with two handguns and opened fire, yelling "shoot the mayor." When the smoke cleared, three city officials and two law enforcement officers were dead. Thornton's brother later justified the killings, telling local media, "My brother went to war... with the people, the government that was putting torment and strife into his life." Many comments on blogs and web articles covering the story echoed the same theme, including one on AOL News that stated, "GOOD!! I just hope he killed the right people, the evil ones, over this!!!!!! It is time we all stood up for our rights."

In the Heller case, the decision in question is that of the U.S. Court of Appeals for the D.C. Circuit, which struck down a District law that prohibits private possession of handguns except in limited circumstances. This marked the first time in history that a federal appellate court had struck down a gun control law on Second Amendment grounds.

In its decision, a panel of the D.C. Court of Appeals expressly held that the Second Amendment protects an individual right to possess arms to defend against the "depredations of a tyrannical government." This insurrectionist philosophy has long been embraced by proponents of the view that the Second Amendment protects an individual right to possess firearms unrelated to service in a government regulated militia. A right to arms to protect against "tyranny" is an important point to establish for the gun lobby, which seeks to keep gun ownership anonymous and unregulated by government. It is therefore no surprise that the National Rifle Association specifically endorsed the insurrectionist viewpoint in its friend of the court brief.

Following the decision of the lower court, the District of Columbia sought and obtained review of the decision by the U.S. Supreme Court. In his brief to the Court, the respondent, Dick Heller, urges the Court to recognize that the Second Amendment protects the right of citizens to take up arms against their government "should our nation someday suffer tyranny again."

The need to empower government to quell armed insurrections, however, was one of the driving forces behind the drafting of our Constitution. Following the American War of Independence, private rebellions flared up, such as that led by Daniel Shays in Massachusetts. Shays and his followers attacked the armory at Springfield and attempted to shut down the local courts to prevent mortgage holders from foreclosing on their farms. "Shays' Rebellion" was put down with force, but revealed the need for a stronger central authority than that provided by the Articles of Confederation.

It is not because of sloppy draftsmanship that our Constitution prohibits treason and provides the national government with authority to "suppress insurrections." A reading of the Second Amendment that finds a right of individuals to possess arms so that they can engage in armed rebellion against the government when they perceive it to be "tyrannical" is irreconcilable with these and other provisions of the Constitution, as well as our history.

Fortunately, most Americans still believe that our courts are the constitutional method for resolving disputes, and the Supreme Court is likely to address this issue when arguments begin in the Heller case next month. For the sake of our democracy, let us hope they reject the insurrectionist principle (however much future Charles Thorntons believe themselves to be wronged). If the Court sanctions an individual right to armed violence against government, it may just limit its ability to resolve similar disputes in the future.