I’ve spent much of my law-thinking time considering the 2nd Amendment, and I will write a substantive 2nd Amendment post at some point. For today, there’s one specific application of the 2nd Amendment that’s been troubling me in light of other Constitutional history. Second Amendment supporters often note that the Founders intended the Amendment, among other things, as a guard against tyranny. While the facts are more complex and nuanced, there is plenty of truth to that statement. Many of the Founders were distrustful of governments (fair) and were familiar with historical efforts by governments to disarm citizens.

This brings me to the troubling Constitutional history. In 1942, at the height of WWII, FDR signed Executive Order 9066, which set up the framework that led to the relocation and internment of over 100,000 people of Japanese ancestry, over half of whom were U.S. citizens. This was challenged in court by Fred Korematsu, who refused to be relocated. In one of the most shameful decisions of Supreme Court history, the Court ruled in favor of the government. Justice Murphy’s dissent sums it up:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution. Korematsu v. U.S., 323 US 214, 242 (1944).

So, what’s my point? My point is that, while I academically accept (and agree with) the idea that the 2nd Amendment protects against government tyranny, I must ask how much tyranny is too much tyranny that armed patriots will stand up? We (the royal we) stood by while the government rounded up American citizens solely because they had Japanese ancestry.  While some resisted, there was no great uprising by Constitution-defending patriots.  If that was not worth fighting, what is?

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