Dig Him Up!

Dig Him Up!


Ken Melvin

On our TV and computer screens we saw right-winged protesters armed with semiautomatic weapons displaying swastikas, nooses, and replicas of supposed confederate battle flags guarding the entrance and filling the chambers of Michigan’s State Capitol. How did they get by with this? Does the Second Amendment of the US Constitution give them the right to try to intimidate a duly elected Governor, government, with assault weapons and hate symbols? Has the Supreme Court now decided that assault weapons are a form of speech, or are maybe even citizens, and thus are protected under the First? Though Patrick Henry argued that armed militias were necessary for the ‘purposes’ of the state; there’s no evidence he thought they should be used against the state.

The Second Amendment to the Constitution:

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.

The First Amendment of the Constitution

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

The First guarantees their right to protest, but neither amendment gives them the right to protest with the implied threat of shooting anyone who stands in their way. What am I missing? If we had been armed in our protest of the Vietnam War, they would have shot us; did anyway. If we had been armed in our protest of the Invasion of Iraq, they would have fabricated a reason to have shot us. Extending armed protests to its logical conclusion, we are looking at the possibility of open warfare between armed protesters and any opposition, including law enforcement; the possibility of the use of arms to overthrow a legitimately elected government. Does the constitution give them that right?



In Heller, The Supreme Court held:

(a) The Amendment’s prefatory clause announces a purpose but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.  

  1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home.

In writing the majority decision, Justice Scalia invoked his theory of original intent based on his review of colonial history and the early years of the republic and concluded that the Constitution’s Second Amendment meant, not what others before had said it meant, but whatever he said it meant some 230 years later. Justice Scalia neglected to mention that Patrick Henry, Governor of Virginia at the time, wanted the first part— A well regulated Militia, being necessary to the security of a free State — in the Second Amendment because state militias were used in slave-holding states like Virginia to hunt down runaway slaves and protect slave owners against rebellion. Maybe that is why Scalia said that the second part, not the first part, was the operative clause. Justice Scalia, not the Second Amendment, said, “ … to use that arm for traditionally lawful purposes, such as self-defense within the home.” Justice Scalia was joined in the majority by Justices Roberts, Kennedy, Thomas and Alito.  Justice Stevens, who wrote the dissent, recently called Heller, “… the worst decision of my tenure.”

Justice Scalia, do tell, how far does your “ …, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” extend beyond the home? Was the armed protesting of the Governor’s actions to protect the citizens of the State against a global pandemic a lawful purpose? Was this a legitimate form of self-defense? Or was it an exercise of their right to ‘intimidate’, the right of ‘self’ offense? Surely, you didn’t mean to give them the right to threaten? Does the first part, the inoperative part, still grant them the right to form an armed militia for the purpose of hunting down slaves? Or others? Justice Scalia, we have a real can of worms here. Perhaps, a failure to look to possible unintended consequences?

While I have you on the mind, Justice Scalia; did you intend for — and to use that arm for traditionally lawful purposes, such as self-defense within the home.— to extend to armed right-wing militias (it does seem that they are always right-winged ‘militia’ armed with semiautomatic weapons, often displaying swastikas, nooses, and replicas of confederate battle flags) guarding the Michigan State Capitol entrance and filling its chambers? Or, is this a right connoted under the first’s inoperative prefatory clause?


Sure, it would have been easier to have gone to Justice Roberts to get the Federalists Society’s thoughts on the matter, or to the CATO or the American Enterprise Institutes, or to the Heritage Foundation to get their thoughts, and their interpretations of the Second, but I felt that, after all, you should have precedent.


And, Justice Scalia, you should know that it wasn’t just in Michigan that they exercised this right to whatever. They recently also exercised this right to varying degrees in Idaho, Wisconsin, Oregon, Texas, New Mexico, Kentucky, Arizona, Missouri, … Now, they claim and proclaim that they stand ready to rise up against tyranny. But who are the real tyrannists here? This seems to be tyranny by a minority; a tiny minority of armed thugs, of armed bullies. Strangely, there’s no mention in the Second of tyranny, nor in any of your connotations of the Second. Hard to find mention of tyranny itself in the Constitution. Granted, there is plenty of evidence that the Founders did not want the citizenry subjected to tyranny as in the tyranny that the tyrant King George III had once visited on the now citizens of the new United States; but really Justice Scalia, are duly elected Governors of good intent asking the citizenry to wear masks to lessen the spread of a deadly pandemic being tyrants? Should we just get over it?


Stare decisis.