YESTERDAY on "Fox News Sunday", Antonin Scalia, the Supreme Court justice, suggested that Americans may have a constitutional right to own and carry shoulder-mounted anti-aircraft missiles.

CHRIS WALLACE: What about…a weapon that can fire a hundred shots in a minute?

SCALIA: We’ll see. Obviously the amendment does not apply to arms that cannot be hand-carried—it’s to keep and “bear”, so it doesn’t apply to cannons—but I suppose there are hand-held rocket launchers that can bring down airplanes, that will have to be decided.



WALLACE: How do you decide that if you’re a textualist?



SCALIA: Very carefully.

Most gun-rights advocates will probably downplay Mr Scalia's remarks, but I applaud them. In fact, I think the only thing amiss here is Mr Scalia's weirdly literalist approach to the word "bear"; the first amendment's reference to "freedom of speech and of the press", for example, is generally held to apply to non-verbal communications as well. Besides, even though you can't carry an M1 Abrams battle tank, that shouldn't necessarily preclude you from "keeping" one. More important, though, Mr Scalia seems to be one of the few people in the judiciary who may be favourably disposed towards letting Americans own the only kinds of weapons that actually make sense, under the dominant justification that advocates currently provide for the importance of gun rights: the right to defend yourself against the government.

There are basically two ways of explaining why a right to own guns belongs in the Bill of Rights. The first is that it's part of the assumed natural right to self-defence against other citizens. The second, increasingly the main line of argument by gun-rights advocates, is that's it's necessary to prevent governments from arrogating tyrannical powers to themselves. Hence the ready response of a pro-gun-rights New York Times reader to an editorial calling for a compromise on gun control:

The Second Amendment was not written to protect hunters and recreational shooters. It was written as a safeguard against a government that might become so centralized and so powerful that it would pose a threat to the freedom of the citizenry and the Republic.

The same premise undergirds the gun-rights philosophy of the NRA ("America's First Freedom"), the Second Amendment Foundation ("the intent of [the second amendment] was to protect individuals from government powers"), and other gun-rights organisations. And indeed the Supreme Court relied on this interpretation of the second amendment's purpose in its 2008 decision in District of Columbia v Heller, which first established that the amendment guarantees an individual right to own guns. Many of the negotiating parties to the constitution, the court wrote, feared that the new federal government would act as Charles II had in 17th-century England, disarming rival militias so as to impose tyrannical rule. Hence the amendment's phrasing, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." In his majority opinion, Mr Scalia glossed the amendment's prefatory clause thus:

There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. (The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton).) Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

We can see something of a problem begin to develop here. Reasons one and two above are obviously anachronistic: militias composed of private gun owners are no longer useful in repelling invasions or suppressing insurrections; they are more likely to be the insurrectors. And obviously, militias no longer render the US Army unnecessary. What about the third one? Is a country whose "able-bodied men" are "trained in arms and organized" (and, one assumes, have access to guns) "better able to resist tyranny?"

Of course not. The idea that, in the modern world, a country full of people with private handguns, shotguns and AR-15s in their households is more likely to remain a liberal democracy than a country whose citizens lack such weapons is frankly ridiculous. Worldwide, there is no correlation whatsoever at the country level between private handgun ownership and liberal democracy. There are no cases of democratic countries in which nascent authoritarian governments were successfully resisted due to widespread gun ownership. When authoritarian governments come to power in democracies (which is rare), they do so at the ballot box or with heavy popular support; where juntas overthrow democratic governments, as in Greece, Brazil, Chile or Iran, popular gun ownership is irrelevant. Once authoritarian governments take power, if they decide they don't want citizens to own guns, they take them away, easily crushing any isolated attempts at resistance. When, on the other hand, authoritarian governments are overthrown in military uprisings (as opposed to peaceful revolutions, which are more common), the arms that defeat them come from defecting soldiers or outside aid. Widespread gun ownership among the common folk may conceivably have been an important obstacle to centralised government control in 17th-century Britain, just emerging from feudalism; but since the universalisation of the modern nation-state in the 19th century, the degree of force that governments can bring to bear has overwhelmed any conceivable popular defence of localised rights and privileges by companies of yeoman musketeers. To stack up against police, the National Guard or the US Army, private gun enthusiasts would, at a minimum, have to be packing an arsenal that would be illegal in any state in the union, even Arizona.

Indeed, lower in his opinion, Mr Scalia recognises this problem.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Because...why? Mr Scalia's claim here is that modern technological developments have rendered the second amendment meaningless with regard to its original intent, but that we have to continue enforcing it unchanged, regardless. Perhaps at some level the implicit cognitive dissonance here disturbs him, and this is why he is now considering whether citizens do have a right to keep and bear arms that might actually give the US military pause, such as surface-to-air missiles that could take out American helicopters and fighter-bombers—plus maybe land mines, shoulder-launched anti-tank missiles, or perhaps just IEDs, which had considerable success in crippling light mechanised infantry in the Iraq and Afghanistan wars. Surely that could deter some federal tyranny!

This entire paradigm is absurd. Laws and regulations in America are determined by the actions of the legislature, the executive and the courts, with the consent of the voters; the level of gun ownership has nothing to do with anything. When congressmen debate liberty-related measures such as the health-insurance mandate or net neutrality, they don't worry about getting shot; they worry about getting re-elected. Once laws and regulations are in place, the government does not hesitate to enforce them because it is worried about resistance by gun-owning citizens. Widespread gun ownership by private citizens will no more deter the US government from enforcing the Endangered Species Act against property owners than widespread gun ownership by drug dealers has deterred the government from enforcing the Controlled Substances Act. Nor should it. If anything, widespread gun ownership forces the government to become more repressive and more invasive in its efforts to fight crime and prevent insurrection. This is the kind of vicious dialectic one sees in countries like Afghanistan, Somalia, Iraq and Burma, where dispersed gun ownership among rival ethnic groups leads to a see-saw with brutal dictatorial regimes, who see repression as the only means to keep the state from disintegrating.

Nonetheless, I applaud Mr Scalia for doing his part to make this aspect of the gun-rights debate clearer. If the purpose of the second amendment is to enable citizens to resist the government, then the entire regime of current gun restrictions needs to be overturned: citizens need to be able to buy fully automatic assault rifles, rocket launchers, military-grade explosives, remote detonators, armoured vehicles with mounted artillery, surface-to-air missiles, light bombers, armed drones, everything. If some citizens want to keep and bear arms in order to take on the power of the federal government, that's what it's going to take. And should those citizens decide to fully exercise such rights, then their second-amendment freedom will become the freedom to be attacked and crushed by the police and the US military, on behalf of those of us who support the integrity of the American government we have elected and the enforcement of its laws.

(Photo credit: AFP)