Insurrection

The insurrection in DC in January of 2021 puts an American myth, sanctified in Scalia's misreading of the Second Amendment, into sharp conflict with the reality of American history.  The myth is that each citizen, alone or as part of a group, a "militia," as the myth would no doubt put it, has the right to bear arms, not only of primarily in defense of self and household but rather to protect the citizen from the government.  That's the idea that underlies the "sovereign citizen" idiocy, the "militia" movements, and the insurrection of last January.

History says otherwise.  I don't know of any nation or state in the history of the world that said it's ok for each citizen to assert individual sovereignty over the self, and therefore to assume immunity from the laws and customs of the nation.  In the US it's almost impossible to resist invoking the Gettysburg Address in this context:  "Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.  Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived, and so dedicated, can long endure."  The idea of "liberty" here is entirely contained within the continuing existence of the nation.

When they rebelled, which is to say, when they participated in an insurrection, the southern states were taking the myth quite literally.  Lincoln, on the contrary, understood that no nation can endure if it is subject to subversion by individuals, militias, or states.  The "new birth of freedom" that Lincoln goes on to predict is therefore contingent on the survival of the nation.

There are a whole bunch of highfaluting religious, philosophical, and political frameworks that assert more or less the same thing that Lincoln suggests.  But it doesn't take a St. Paul or a Hobbes to see that if every individual is literally sovereign, a law unto him/her/theirself, then we are in a state of nature where, in Hobbes's phrase, life is nasty, brutish, and short.  Without civilization, the collective enterprise of nations, there can be no civility.

The myth that Scalia made into a shibboleth of American manhood—and I choose that word with malice aforethought—is in practice the destruction of this thing we call America.  It undermines our civilization.  I understand full well that to participate in a civilization requires subordinating our own sovereignty to the supremacy of the nation.  Sometimes such supremacy produces injustice.  Consider the history of Black Americans.  But the genius of democracy is that there are methods for undoing such injustices that to do not entail insurrection.  The Preamble to the Constitution of the United States expresses that possibility in the idea that we are constructing "a more perfect union."  Article V provides a method by which such perfecting can be accomplished—within the terms of the Constitution itself.

Outside of the Fourteenth Amendment, the Constitution refers to insurrection, the "sovereign citizen" way of seeking the redress of grievance, only once.  Section I, Article 8 specifies that Congress has the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."  Insurrection and "invasion," the domestic and the foreign threats to the nation, are made equivalent here.

As a relevant tangent to Scalia's dangerous reading of the Second Amendment, note as well that here is the first mention in the Constitution of the "militia," not as a body of "sovereign citizens," but as a arm of the government.  The Constitution reiterates the point in Article II, section 2, in which we are told that "The President shall be Commander in Chief of the Army and Nave of the United States, and of the Militia of the several States, when called into the actual Service of the United States."  Pace Scalia what the Second Amendment guarantees is the right of citizens to bear arms ae elements of the militia, which is to say as part of a state-organized, sanction, and trained band of citizen soldiers.