Jack Balkin on the 2nd Amendment [7:30 pm]
Somewhat apropriate on Patriot’s Day: The Republican Theory of The Second Amendment and Its Ironies
Of course, the civic republican theory is premised on a romantic notion of militias made of sturdy yeoman farmers determined to protect their families and their homeland in the name of liberty. Civic republican theory assumed that in the face of oppression the People as a whole would rise up– that is, that when militias exercised their right of revolution, they would succeed only to the extent that they more or less represented a broad spectrum of popular discontent with a tyrannical government. But in practice, militias do not always consist of the whole people, but rather of particularly angry and aroused segments and factions of the population. And, perhaps more to the point, often the militias that arise to contest a hated government are not always composed of people with particularly admirable aims. Think of Honduras and El Salvador in the 1980’s. Indeed, you might say, at the risk of hyperbole, one person’s militia is another person’s death squad.
In any case, before our very eyes, we are witnessing a demonstration of the republican theory of the Second Amendment, and the role of firearms in contesting a hated government in Iraq. That government, unfortunately, happens to the the provisional authority run by the United States. It is not clear whether the various Sunni and Shiite factions that are momentarily making common cause against the government in place– that is, the United States of America– truly represent the People of Iraq. There may, in fact, be no such thing as the People of Iraq. But there are people in Iraq, and many of them seem to hate the provisional authority (and the United States) very much, to the point that they are willing to take up arms against it. Or to put the point more piquantly, one person’s minuteman is another person’s mujahideen.