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Treason Is Not a Constitutional Right

by Michael Austin, published

I am not anti-gun activist. I believe that the Second Amendment gives all Americans the right to own firearms, to go hunting, to shoot targets, and, in the gravest emergency, to protect our lives and our homes. In two recent decisions, the Supreme Court has made it clear that the Constitution protects the right to self-defense through firearm ownership on both the state and the federal level. I'm cool with that.

It does not follow that the Constitution gives us the right to commit treason. There is no Second Amendment right to armed insurrection, just as there is no Tenth Amendment right to secession or revolution. Unfortunately, this distinction has been all-but lost in the current debate over gun violence. Consider the following statements from some of the "usual suspects" on the far right:

Mark Levin: Whether you like it or not, whether you agree with it or not, the reason why 2nd amendment exists is to arm the population in order to overthrow a tyrannical government.

Andrew Napolitano: The historical reality of the Second Amendment’s protection of the right to keep and bear arms is not that it protects the right to shoot deer. It protects the right to shoot tyrants, and it protects the right to shoot at them effectively, with the same instruments they would use upon us.

Ron Paul: The Second Amendment, ironically, and a lot of people don’t understand this, but it was to protect against abusive government.

David Barton: It’s whatever the government’s got we’ve got to have the same thing, because if they’ve got an AK47 and we’ve only got a BB gun, this is not a deterrent. So the whole purpose of the Second Amendment is to make sure you have equal power with whatever comes against you.

As we can see in just these brief statements, the “right-of-revolution” argument generally moves—often in the space of a single sentence—through three distinct propositions: first, the unobjectionable generalization that the Founders thought that  an armed population would be a fine way to resist tyranny; second, the unsupportable assertion that the Second Amendment was designed primarily to arm the citizens against the state; and third, the profoundly mistaken claim that the Constitution now guarantees everybody in America enough firepower to take on the federal government.

Each stage of the argument increases the necessary proof while decreasing the available evidence. We can easily prove that a lot of the Founding Fathers thought that guns were good for all sorts of things—including resisting tyrants. We have much less evidence to suggest that this was a primary concern of the 20 senators and 59 representatives who passed the Bill of Rights and sent it to the states for ratification in 1789. And we have no evidence whatsoever for the suggestion that that the Framers would have wanted to see their amendment being used as a justification for treason.

The third stage of the argument, which has unfortunately began to dominate public discourse in our day, does not even pass the laugh test. No serious person believes that private citizens should have tanks, cruise missiles, aircraft carriers, rocket launchers, and tactical nukes—which are the sorts of things that would be required to mount a successful rebellion against the government. Barton’s idea that “whatever the government’s got we’ve got to have the same thing” leads us straight to the Hobbesian state of nature, where force is the only rule, where the strong have a right to whatever they can conquer and defend, and where life is “solitary, poor, nasty, brutish, and short.”

If the time ever comes when the government of the United States really is a tyranny those who rise up against it will have to do so outside of the Constitutional order. That’s what revolution means. If you are a "revolutionary," you don't get to be a "law-abiding citizen," period. None of the Founding Fathers thought they were being “good British Subjects” when they signed the Declaration of Independence. Those few benighted souls today who believe that they are following in the footsteps of George Washington need to stop pretending that they are “good American citizens.”

In the meantime, the rest of us need to have serious conversations about guns and about what Constitutionally permissible restrictions, if any, we should place upon them. And to preserve anything like integrity in our Constitutional process, these discussions must start with the presumption that the right to bear arms flows from the right to defend oneself, and one's family, from direct and lethal threats. It does not now, and has never legitimately had, anything to do with the right to carry out an armed insurrection against the government.

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