Sunday, February 10, 2013

Did the Founding Fathers Really Intend a Right of Insurrection?

In the wake of the Newtown school shootings many groups have proposed stricter regulations on certain types of guns and ammunition.  Just as predictably, the NRA and its allies have trotted out the argument that unrestricted gun ownership is the only thing protecting us from government tyranny.    According to Wayne LaPierre of the NRA:
I think without any doubt, if you look at why our founding fathers put (the Second Amendment) there, they had lived under the tyranny of King George and they wanted to make sure that these free people in this new country would never be subjugated again and have to live under tyranny.
According to a letter to the editor in today's Austin American Statesman:
The Second Amendment was not written to address hunting, sports or the type of firearms a citizen could own; it was specifically written to allow citizens to bear arms to defend themselves against tyranny in government. . . . I will surrender my automatic firearms and high-capacity magazines when the government surrenders theirs.
Did the founding fathers really intend to create a system in which armed citizens could use force of arms to veto any government actions they considered to be "tyrannical"?   The answer is emphatically no.   When disgruntled farmers took up arms in 1787, James Madison, who would later author the Second Amendment called it "treason."    John Hancock, who was then governor of Massachusetts gave orders for the militia to"kill, slay and destroy, if necessary, and conquer by all fitting ways, enterprises and means whatsoever, all and every one of the rebels." When the Whiskey Rebellion broke out in 1794, President George Washington mobilized troops from state militias to put down the rebellion.   The actions of the founding fathers clearly indicate that they did not think that insurrection was such a good idea once they were in power.   

On the other hand, the language of the Second Amendment speaks of an individual right to bear arms and Madison promoted the Second Amendment as a protection against government overreach.  So, what gives here?   Were the founding fathers hypocrites or is there a bigger picture that weaves together these contrasting narratives?   I will argue here that an understanding of the role of the militia is critical to understanding the Second Amendment.

The American Colonists and the Militia

Under British rule, the American colonies were part of an economic system known as mercantilism.   The colonies existed to export raw materials to the mother country and to purchase finished products in return.  While the colonists were British citizens, the laws governing them were made by parliament and executed by the King.   In this system, the British troops were there to protect the interests of the mother country.  They made sure that the will of parliament, the King and the royal governors was carried out.  Self-defense, on the other hand, was left to the militia.   The militia consisted of every able-bodied male and was under the control of the local authorities.   The militia was a military of the people, but it was an organized group with officers responsible to the local authorities.    

As long as the crown and the colonists got along, these two forces would serve complimentary purposes.   However, as we know, relationships between the colonists and the mother country did not go well.   After the French and Indian War, parliament decided that the colonies should pay for the cost of keeping British troops on their soil.   They also sought to prevent direct trading with the British possession in the Caribbean in order to protect the British interest in the mercantile system.  These decisions hit the colonists in the pocket book and promoted the cry of "no taxation without representation."   

As the colonists moved beyond letter writing to acts of civil disobedience such as the Boston Tea Party, the Crown became worried that the militia (that is, the armed and organized citizenry) could be turned against them.   The British sent 700 Redcoats to attempt to secure the supplies of the Massachusetts militia at Concord.   This led to Paul Revere's famous ride and the Battles of Lexington and Concord, as well as the start of the American revolution.

The Constitution and the Militia

After the revolution, the former colonies banded together under the Articles of Confederation.   The Confederation relied on an intentionally weak central government.   When Shay's Rebellion broke out in 1786, the national government did not have any money to send troops.  As a result, Boston merchants had to pay for the arming of a private militia out of their pockets.    

When the Constitution was proposed in 1787, it included a stronger national government and authorized a standing national army.   It also gave Congress the power to call out the militia to "execute the Laws of the Union, suppress Insurrections, and repel Invasions" and allowed Congress to organize, arm and discipline the militia.   The states were given the power to appoint officers for the militia and provide for their training.   

In the Federalist No. 29, it was argued that the militia was necessary for the common defense and would reduce the need for use of the national army.
 Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. 
On the other hand, Madison did suggest that the militia could be a counter-force to an oppressive federal government. 

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. 
Federalist No. 46.

The Adoption of the Second Amendment

Adoption of the Constitution was by no means certain.   By 1788, eight states had ratified the Constitution and four seemed unlikely to go along.   That left Virginia as the deciding state.   In Virginia, James Madison was the chief supporter of the Constitution, but was opposed by George Mason and Patrick Henry among others.    

In Virginia, one concern raised by Patrick Henry was that Congress would use its power to arm the militia to keep them unarmed.    This, in turn, would allow the increasingly abolitionist North, to subvert the slave system in the South.   As stated by Prof. Carl Bogus, "The militia were the last and best defense against slave insurrection but practically useless against a professional army."   Indeed, the Virginia militia had distinguished itself during the revolution by running away without ever firing a shot at the Battle of Camden, South Carolina.

Virginia ratified the Constitution but also recommended adoption of a bill of rights, including a right to bear arms.    When James Madison ran for Congress, he was forced to support a Bill of Rights in order to be elected, even though he had previously argued that one was not necessary.  Madison's proposal that later became the Second Amendment was grammatically challenged:
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
According to an article in the Military Law Review, Madison's language satisfied the political goals of assuaging the concerns of many prominent Anti-Federalists.
In resolving the arms versus militia issue, language that combined a militia statement with a recognition of an individual right fitted Madison's objectives perfectly. A militia statement standing alone likely would have been unacceptable to liberal groups such as the Pennsylvania minority, Samual Adams and his supporters, the New Hampshire majority, and possibly Jefferson himself--all of whom had advocated an individual right to arms and none of whose efforts had so much as mentioned the militia. Conversely, an individual right to arms clause, standing alone, might well have irritated supporters of the traditional militia such as George Mason and possibly Richard Henry Lee, both of whom were powerful Virginians. In addition, both were figures with whom Madison still had to deal because they would vote on his proposal--Mason as a Virginia legislator and Lee as a member of the federal Senate. By joining the two issues, Madison would be assured of broad-based support for his proposal. He naturally chose language that already had proved acceptable to both groups. "[T]he right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country." 
This language finally adopted was:
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.
Two things are apparent from this language.   First, the right to keep and bear arms was intended to promote the objective of maintaining a militia.   Second, one of the previously stated purposes of the militia was to put down insurrections.    

The Standing Army and the Militia

 The Militia Act of 1792 defined the militia as every "free able-bodied white male citizen"  between the ages of 18 and 45.   During the Civil War, the state militias became the basis for the Confederate Army.   In 1903, the law was changed to provide for the organized militia, which is the national guard, and the unorganized militia, which constituted of men ages 18-45.   The state guard units are under the control of their governors.   However, they can be called into national service by the president.   During the civil rights era. some Southern governors called out the guard to prevent implementation of federal laws only to have the president call the guard into national service.   As a practical matter today, the guard is simply an adjunct of the national standing army as opposed to an independent state-based military force.    

Tyranny Then and Now

One argument for the Second Amendment in the 18th Century was that it was necessary to prevent the federal government from using the national army to impose a dictatorship upon the people.    This was a legitimate fear given the experience with standing armies in Europe and our own limited experience with a standing army.    Today that seems far-fetched.    For over 200 years, the army has remained under civilian control.    Unlike many South American and African countries, the army does not overthrow the government, nor does the government use the army to impose martial law.   As a result, the original fears of the anti-Federalists have not come to pass.    

However, since the advocates of unlimited gun ownership invoke tyranny as a rationale for their position, it is reasonable to ask what tyranny would look like today and what a reasonable response would be.   Tyranny is defined as oppressive power exerted by government, a government in which absolute power is vested in a single ruler and an oppressive, harsh or unjust act.   The second definition is the only one which is objective and thus can be easily applied.   The rule of Adolph Hitler, Josef Stalin and Pol Pot would fit this definition of tyranny.   However, it is too narrow, since it fails to include collective leadership which wields unlimited power, such as in the People's Republic of China, or states such as Egypt or Venezuela where an elected leader holds overwhelming power.

Lacking a better definition, I would suggest that tyranny is the antithesis of the rule of law.  Thus, I would argue that the suspensions of the right of habeus corpus by presidents Lincoln and Bush constituted isolated acts of tyranny as was the internment of Japanese-Americans during World War II.   On the other hand, neither Obamacare nor the chronic underfunding of Texas schools by the legislature qualify as tyranny, since they were decisions made by lawfully constituted authorities subject to judicial review.  Tyranny does not mean that your candidate lost and you think the guy who did win is making really bad decisions. In the United States today, real tyranny is much more the product of films, books and the internet than reality.        


I think that the Second Amendment describes an individual right to "keep and bear arms."   While the reference to a well-regulated militia may illustrate its objective, it does not limit its reach.   However, there is no such thing as an unlimited right.   While the First Amendment grants you the right to free speech, you do not have the right to break down my door and shout at me through a bullhorn at three o'clock in the morning.    By the same token, your right to keep and bear arms does not give you the right to shoot me because I do not keep my yard neat or because you don't like the way that I park my car.   Taking it further, I think that Congress has the right to regulate the possession of firearms, such as by requiring background checks or limiting the size of magazines.   I completely reject the notion of a right to insurrection.   The right to keep and bear arms was intended to facilitate the existence of state militias.   One of the purposes of militias, as stated in the Constitution, was to put down insurrections.  As a result, there is no right to engage in insurrection against the government.   There is a word for that.  It is treason.


Bogus, The Hidden History of the Second Amendment, 31 Univ. of Cal. at Davis Law Review 309 (1998).
Fields & Hardy, The Militia and the Constitution:  A Legal History, Military Law Review (Spring 1992)
Hennigan, Arms, Anarchy and the Second Amendment, 26 Valparaiso L. Rev. 107 (1991) 

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