The Supreme Court and the Second Amendment

The Second Amendment is, without question, the most infamous and vilified section of the Constitution today. Ask ten random people on the street to name what is discussed in Article I, Section 8, or the 21^st Amendment, or the 10^th Amendment, and most will stare at you blankly. But ask about the Second Amendment, and the majority of those same ten will likely know: “right to bear arms.”

It is under assault today—this many conservatives know. What they may not understand are the ways in which this assault directly relates to the Supreme Court. Until the landmark rulings of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), there was no major Supreme Court ruling, in at least the past fifty years, which protected an individual’s right to bear arms. The Second Amendment was, in many legal circles, a dead letter, a law still technically on the books but no longer enforced or taken very seriously by anyone of consequence.

Then came the legal battles that eventually culminated in the Heller and Chicago decisions. Democrats were scandalized—but unlike other major decisions, from Roe v. Wade to Citizens United, they could not easily take a firm, united stand on the issue. The simple fact is that, whereas Americans are divided on abortion and suspicious of large corporations, they by and large love their guns. For hunting, for self-defense, for any other legal and ethical purpose for which Americans have been using guns for centuries. So Democratic opposition to the rulings had to be disguised, or at least toned down. Democratic Senators like Harry Reid needed to protect their favorable NRA ratings.

Under liberal pressure in the years since, that disguise has gradually been dropping. Hillary Clinton said in a debate last October that the she opposed the Heller decision because it made toddlers more likely to shoot themselves.

This was, obviously, nonsense. But it underscores how the gains of the last few years might be put at risk by the confirmation of just one additional liberal judge to the Supreme Court. Just as conservatives want to see Roe v. Wade overturned, so too do many liberals dream of the Heller and McDonald decisions also being overturned, and the Supreme Court declaring that the Second Amendment only applies to the National Guard and is a “collective”, rather than individual, right (their favorite kind).

And even without express challenges to Heller and McDonald, less ambitious liberals could still work through the courts to undercut the Second Amendment, piece by gradual piece. Both decisions allow that some gun control is constitutional, as long as those laws do not effectively deprive an entire class of people from exercising their constitutional rights. No Court decision has yet clearly defined what the constitutional limits on such laws truly are, beyond stating, as Heller and McDonald did, that an absolute ban on handguns is beyond the pale. That still leaves many unanswered questions, which liberals will seek to subvert for their own purposes.

Falling Skies, The Walking Dead, and Conservatism

Several articles have already been written on how The Walking Dead, one of the most popular shows currently on TV, is inherently conservative (most notably here and here), from the necessity of guns and the short life expectancy of those who refuse to use them, to the absolute importance of the main characters’ not depending on anyone but themselves and their closest friends for safety. Less noted is the fact that many similar shows, generally depicting a post-apocalyptic future world, often convey similar conservative messages, lessons which take little imagination to apply to modern life.

Two prominent examples, both dealing with guns (a common theme on post-apocalyptic shows), occur on Falling Skies, a sci-fi drama on TNT which concluded last year after five seasons. The basic premise of the show involves an alien invasion which sees the capture or extermination of most humans on Earth, along with the fall of all major governments, including the United States. The show follows a group of survivors as they travel up and down the East Coast, attempting to fight off the invaders.

The group spends the second season attempting to reach Charleston, where rumor has it that a new U.S. government has been established. After reaching their destination, the main characters are asked to hand over their weapons, because in Charleston ordinary citizens don’t carry guns. Weapons are kept in a communal armory, and assigned to individuals on an as-needed basis. The group is reluctant, but eventually complies.

What happens next should come as no surprise to Second Amendment defenders. The self-appointed President takes issue with the group’s differing opinions on alien-fighting policy, and its overall questioning of his leadership, and has them arrested. Without weapons they’re helpless, until a coup forces the President out of power and frees the main characters.

Something similar happens in season four, when the group discovers a utopian colony miraculously untouched by the aliens. Weapons are forbidden inside the colony, which leads to a split between those who aren’t willing to give up their arms and those who are lured in by the promise of a break in the endless fighting. The former are soon proven correct, as the leader of the colony turns out to be secretly in league with the aliens, and several major characters are killed in the ensuing invasion.

The first, most obvious lesson from these apocalyptic-style shows is that, in case of alien invasion or zombie infestation, a gun-free populace will be overrun much quicker than a community with a Second Amendment and high proportion of gun ownership. Similar shows become much less believable if set in, say, Germany or Australia.

But, setting aside the sci-fi themes and plot elements, the real life importance of a individual right to bear arms is put on stark display. The authors of the Second Amendment may not have been planning ahead for the time when an alien spaceship lands on top of Boston, but they did have intimate knowledge of cases in which civilians would need to defend themselves, their families, and their property, whether from burglaries and home invasions, national invasion by a foreign country, or (as they well understood) an illegitimate central government unresponsive to the needs of the people.

The Second Amendment is, at its heart and in addition to a defense against burglaries and individual assaults, a doomsday provision meant to safeguard the rest of the Constitution and Bill of Rights from any overt, comprehensive assault by a future government. Not merely liberal Congresses and Presidents who sometimes intrude on Constitutional provisions but still stand for election and are responsive to the will of the people. Those must be fought, but rhetorically.

But a nightmare scenario, one in which Congress or the President overtly moves to suppress all individual rights, potentially through force, or refuses to leave office at the expiration of their term, is the true vision of the future the Framers feared. The true value of Falling Skies, The Walking Dead, and shows like them, in the protection of individual freedoms, is the reminder they offer about how the Second Amendment is a right guaranteed for a reason, because its necessity in such circumstances is only impossible to imagine actually happening until it does happen. As Circuit Court Judge Alex Kozinski, whose parents were Holocaust survivors and with an eye to Nazi Germany, wrote in his masterful Silveira v. Lockyer dissent, “[h]owever improbable these contingencies seem today, facing them unprepared is a mistake a free people get to make only once.”

And if the right to bear arms also ends up stopping a zombie apocalypse or alien invasion, so much the better. Just always beware of utopian communes.