How the Supreme Court Gave the Capitol Insurrection a Green Light
In 2008, the court’s watershed Second Amendment decision made right-wing militias’ fantasies seem real
When I was a kid, more than twice as many Americans went hunting as they do now, and twice as many had guns. Now only one in four own a gun — but the average gun owner today doesn’t own a gun; they have several. In fact, just 3% of us own about half of America’s hundreds of millions of guns, an average of 17 apiece. And that’s because so many of those super-enthusiasts are in thrall to overheated and often delusional gun fantasies.
I’ve been thinking once again about our exceptional and suicidal gun culture. It wasn’t prompted by another mass shooting, some make-believe commando mowing down random Americans in some random American place, but by last month’s unprecedented violent mass spectacle at the U.S. Capitol. The January 6 episode was, blessedly, mostly gun-free — but it was the doing of people driven by the delusions and fantasies that for decades have driven the National Rifle Association and other unhinged gun fetishists, so many of whom were among the mob ransacking the Capitol.
As a kid, I had a rifle and shot targets and birds, and I still sometimes shoot skeet, so I have an inkling of the make-believe that accompanies guns and shooting. The people who ran through the Capitol fantasize, as I did before I became a man and put away childish things, that they’re militiamen, revolutionaries, Wild West cowboys, characters they’ve watched all their lives in movies and on TV, played by Clint Eastwood and Mel Gibson. They’re like children playing with lightsabers, except they actually believe they’re prepared to fight off real-life aliens (from the Middle East, from Mexico) and stormtroopers, and their state-of-the-art weapons actually wound and kill.
Why do Americans buy military-style semi-automatic rifles more than any other kind of gun, at a rate of 1.5 million a year? Because carrying and holding and shooting one makes them feel tougher, cooler. For the same reason, half the states now require no license for people to strap on and show off their guns in public places. They’re amateur actors in 24/7 reenactments, schlubs role-playing the parts of heroes and outlaws.
The insurrection fantasy animating the throng on January 6—that they were obliged to become rebels, like Americans in 1776 and 1861, this time to defend liberty against the tyrannical fascist-socialist-liberal-globalist U.S. government—had been mainstreamed long before Trump came along by the NRA and its affiliated hysterics. How did that happen?
When the founders wrote the Constitution, they envisioned a very small full-time national army. If Americans needed to fight wars, the various states would assemble ad hoc militias to do so. And so the Second Amendment: “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.” For two centuries, the Second Amendment seemed to almost everyone an increasingly vestigial artifact. It just didn’t come up that much in legal cases. The Supreme Court avoided making sweeping decisions about what it meant.
But in the 1990s, a generation after the NRA was taken over by hardcore fantasists, more and more of the gun-rights movement stopped ignoring the antiquated first half of the Second Amendment, as it had previously done, and embraced the 18th-century idea that turn-of-the-21st-century civilians need guns for paramilitary purposes. They let their freak flags fly, arguing it was the Founders’ intent to enable well-armed Americans to launch insurrections to overthrow the government whenever they wished.
In the 1990s, that was still regarded as preposterous. But then, in cases in 2008 and 2010, the Supreme Court finally agreed to decide the fundamental meaning of the Second Amendment, and in both cases, five conservative justices went with the new NRA-spawned interpretation. As a result, our Constitution now does indeed guarantee each one of us the right to own firearms for any and every purpose.
Including insurrection. The first of those opinions, by Justice Antonin Scalia for the majority, explicitly accepts the craziest piece of the new reading of the Second Amendment. Everybody may have guns so that they can spontaneously form nongovernmental militias — that is, to make “the able-bodied men of a nation… better able to resist tyranny,” to join an armed “resistance to… the depredations of a tyrannical government”—that is, to shoot and kill members of any U.S. “standing army” they don’t like. Scalia acknowledged that such a Second Amendment solution would be unwise, given that in this day and age, “a militia, to be as effective as militias in the 18th century, would require sophisticated arms,” and “that no amount of small arms could be useful against modern-day bombers and tanks.”
But so be it: The Constitution gives every American the right to amass an arsenal to pursue that lost cause. The Supreme Court’s imprimatur suddenly made every far-right militia member’s armed apocalypse fantasy seem real — and for the rest of us made that bit of the Constitution even more of a suicide pact.
Since then, the gun-rights militants have kept itching for an actual civil war or insurrection. Four years ago, at the right’s annual CPAC convention, for instance, NRA leader Wayne LaPierre said they need even less regulation and still more guns to be able to shoot and kill fellow Americans with whom they disagree— “the gathering of forces that are willing to use violence against us… some of the most radical political elements there are… Marxists, communists, and the whole rest of the left-wing socialist brigade.”
In other words, Democrats. And on January 6, the fantasists staged a dress rehearsal.