Early in American history, the right to bear arms was seen by some as supporting a natural right of resistance to oppression, including by Blackstone. Similarly, Alexander Hamilton viewed an important aspect of the Second Amendment to be that of enabling the people to stand up to the government “to defend their own rights and those of their fellow-citizens.”[1] In fact, in the Mount Vernon Conference in March 1785, a central topic of debate became whether civilians in militias would be able to effectively stand up to the federal army’s government, with the Anti Federalists concerned they may not be able to.[2] The framers viewed the right to bear arms as a paramount right, by which other rights could be protected against despotic infringement.[3]

When drafted, the right to bear arms was seen, among other things, as a last resort the people could turn to against a tyrannical government. As summarized by one 20th Century militia leader, there have always been three methods to elicit social change: “The jury box, the ballot box, and the cartridge box.” (pg 644) This theory of the Second Amendment, called the Insurrection Theory, argues that the possession of firearms by the people is in part to give the people the ability to stand up to a turned-despotic government. Apart from the Second Amendment, this right can also be anchored in the Declaration of Independence as a right to change government.[4]

However, the Constitution has numerous provisions that are aimed at preventing and punishing uprisings.[5] The Civil War can also be seen as persuasive evidence that there is no right to insurrection. It could be countered that a right of insurrection validly arises only when the Constitution’s scheme for peaceful and orderly change is improperly abridged or foreclosed. In other words, so long as the ballot and jury box are not compromised, there is no sanctuary in the Second Amendment’s cartridge box. However, if a despotic government does emerge, the Second Amendment may be interpreted as a last bastion of defense, the preservation of which must be ensured now.[6]

In modern society, the evolution of mankind to the Fourth Era has created a new impediment to this ability through the right to communicate freely – man is already, or will soon be no longer able to speak without the overlooking eye of the government present. As outlined in No Place to Hide and in class, the government’s ability to monitor everyone, in real time, enables the government to identify the most likely potential threats using up-to-date information aggregated from everything from your browsing history to the location of your phone, and everything in between.[7] This level of information aggregation and processing, when combined with the current lack of privacy or lack of any real ability to maintain anonymity, effectively thwarts any ability to organize without the government’s implicit permission.

I believe it can be argued that the idea behind the Second Amendment requires a strengthening of the people’s rights to counter the reduced effectiveness of the people’s ability to resist tyranny caused by the emergence of the 4th Era. Due to the financially and socially untenable nature of enabling citizens to arm themselves with adequate weaponry, I believe it is appropriate to look elsewhere to regain this lost ground. The closest, and possibly only, approximation available in today’s society is some ensured amount of privacy and anonymity, so that the people may anonymously congregate. The ability to read, publish, and communicate anonymously would enable at least some amount of congregation and dissemination of viewpoints throughout the populace. While it is unclear whether this would be enough, it is a necessary first step to enable people to be free.

The actual caselaw related to the Second Amendment, unsurprisingly, addresses issues related to the control of guns and not of privacy. However, recent case law does have a tinge of applicability to maintaining privacy. In the 2008 Supreme Court case District of Columbia v. Heller, the court noted that The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, undermining the people’s ability to defend themselves against a politicized standing army or a derelict millita.“ This same rational is also dependent upon the ability of the militia to organize, thereby potentially suggesting some right to privacy or anonymity so that they may organize.

[1] The Federalist Papers No. 29 (Alexander Hamilton) (concerning the militia).

[2] The Federalist Papers No. 46 (James Madison).

[3] Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 223 (1984). See also http://providencefoundation.com/?page_id=2525.

[4] The Declaration of Independence para. 2(U.S. 1776).

[5] See 70 Am. Jur. 2D Sedition, Subersive Activities, and Treason §87 (1987).

[6] See Col. Charles J. Dunlap, Jr. (1995). "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment". 62 TENN. L. REV. 643.

[7] Robert O'Harrow, No Place to Hide, pp 214-216 (free press, 2005).