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In last week’s disturbing pictures of protesters brandishing assault weapons in and around Michigan’s Capitol, we saw the naked face of the gun-rights argument, and it was repulsive. This is not a movement about liberty but anarchy. Only in the U.S., and no other civilized democracy, does a supposed right to take up arms against a duly elected government garner a measure of respect from politicians, the courts and the court of public opinion. No tenable reading of the Constitution supports it.
A few hundred demonstrators gathered last Thursday in Lansing to protest Michigan’s COVID-19 stay-at-home orders. In fairness, the obnoxious ragtag group carrying weapons — and in some cases swastikas, nooses and a Confederate flag — was a minority of a minority.
On Friday, President Trump made no distinctions, replaying his notorious response to the Charlottesville, Va., white nationalist rally in August 2019. “LIBERATE” Michigan, he cheered by tweet, lecturing Michigan Gov. Gretchen Whitmer, whose state has been hard hit by the pandemic, to “make a deal” with these “very good people.”
It isn’t illegal to carry guns into the statehouse in Michigan (protest signs, however, aren’t allowed — they might chip the paint). News and phone photographs show armed men — identified as the Michigan Liberty Militia — looking down from the Senate’s public gallery, on the Capitol steps and at the doors of the governor’s office. Weapons have also made an appearance at similar demonstrations in Arizona and Wisconsin.
The fundamental political and legal rhetoric used to justify confronting the Michigan Legislature with long guns starts with the 2nd Amendment, of course: “The right of the people to keep and bear arms.” In 2008, the Supreme Court pushed the amendment in a direction that had been debated but never legally established. In Heller vs. United States, the justices decided the founders had conferred an individual right to possess firearms and use them for traditionally lawful purposes.
One such purpose, the right to self-defense, was cited in the early days of the coronavirus shutdown to demand that gun shops be considered essential businesses, just like grocery stores and pharmacies. Southern California was one of those battlegrounds. “Law-abiding Americans must never be deprived of the right to defend themselves and their loved ones at any time,” said the head of a political action committee, the San Diego County Gun Owners.
But really? There have been no roving bands of looters, no breakdown of traditional law enforcement that might make self-defense especially crucial right now. In fact, crime is down pretty much everywhere and no one has been taking guns away from their legal owners. As to the deprivation of rights, the stay-home orders, which derive from states' policing powers long upheld by the courts, impose limited, temporary restrictions on all manner of constitutional rights, starting with the right to assembly. There is no special Bill of Rights hierarchy that requires states to view gun shops as essential businesses. Nonetheless, many jurisdictions bowed to the gun lobby.
The Lansing mob, however, didn’t show up at the Capitol because gun stores were closed (Michigan didn't deem them essential but it didn't close them either), much less to engage in traditional free assembly and free speech. They were there to intimidate, a function gun-rights types see as not only consistent with the 2nd Amendment but its real rationale. Their ultimate article of faith is an ominous (and arguable) reading of Thomas Jefferson’s famous quote: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
In other words, Americans’ right to bear arms is really the right to violently overthrow a government we don’t like. Thus the sign prominently displayed in Lansing: “Tyrants get the rope."
You may think such a credo is espoused by only the most marginal of "patriots," but a quick tour of the internet shows otherwise. “Tree of liberty” nonsense is common currency of 2nd Amendment activists, from T-shirt sellers to high-minded political commentators and even some federal court briefs. As the Washington Examiner recently argued in taking Joe Biden to task for his gun-control advocacy, “An armed populace dramatically increases the cost of imposing and maintaining tyranny.”
This is the animating force behind guns in a state Capitol: If you pick up a long gun you're suddenly a hero in the lineage of Jefferson, a modern-day American revolutionary. In reality, the armed Michigan protesters are the heirs of the benighted Branch Davidians in Waco, Texas, and the Oklahoma City bomber.
Tree of liberty extremists dwell on the point that this nation took up arms and fought a revolution to rid itself of tyranny. So it did, but in the process, Americans formed a society dedicated to the rule of law, representative government and the peaceful resolution of disputes. The implicit threat of armed protesters — to start shooting if they don’t get their way — is anathema to such a society, and to what the Revolutionary War was all about.
No sound account of the 2nd Amendment justifies the protesters’ assault on bedrock principles of democratic rule. They are neither patriots nor “very good people” but base thugs. The proper response of a civilized democracy is to insist they lay down arms or go to jail.
Harry Litman is a former U.S. attorney and host of the podcast "Talking Feds." @harrylitman