The Second Amendment right to keep and bear arms provides a check on government oppression. Or at least Americans tend to believe that. A Rasmussen poll in 2013 found that 65% of Americans believe that the Second Amendment is in place to protect against tyranny. This is broken down into 75% of Republicans, 54% of Democrats, and 68% not party-affiliated.
But it’s worth asking, what is the role of the Second Amendment today in preventing a cruel and oppressive government? If the Second Amendment is intended as a check against government tyranny, then this could provide a critical argument against some gun law proposals, such as bans an assault weapons. If the Second Amendment has no relation to rebellion within the U.S., then that argument loses force. So evaluation of this belief may be helpful in the larger discussion of gun rights.
Constitutional history. Our country was first established under the Articles of Confederation, which provided significant independence for each state and a weak central government. The lack of sufficient central authority became apparent, and in 1787 the initial Constitution was approved by the delegates to Philadelphia’s Constitutional Convention.
Article II, Section 2 defined the President as Commander in Chief of the armed forced including “the Militia of the several States, when called into the actual Service…”
Article I, Section 8 established the right of Congress to “[call] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
These provisions allowed for a standing army, which was one of the principal objections to British rule—a standing army could potentially support despotic actions by the central government. The Founders addressed this objection in Article I by “reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia.” That is, the militia would be commanded by officers loyal to each state, thus protecting the states against undue authority from the central government.
The draft Constitution was submitted to the original states for ratification, and substantial debate occurred between those in favor of the stronger central government and those opposed. The votes in some states were only slightly in favor of ratification. The Massachusetts convention voted in favor 187-168; New York 30-27; Virginia 89-79. Rhode Island initially disapproved. Several states ratified while forwarding revisions to the document, the compilation of some of these becoming the Bill of Rights.
The states wanted to ensure that they would not find themselves facing the same type of tyrannical government as they had experienced under English rule, and found the wording in Articles I and II of the proposed Constitution to be insufficient. Those provisions gave no assurance against the central government passing a law indicating that the state militias could not have weapons. Enter the Second Amendment, which guaranteed that militias could be armed.
The meaning of the Second Amendment has been debated endlessly. Some have claimed that the opening phrase about “a well regulated militia” provides its sole purpose. Others have argued that a militia was only one reason for the “right to keep and bear arms.” Some look to the drafting history, and wording revisions, and various opinions by observers at the time. Others have even argued about the original intent by evaluating the placement of the commas.
The core debate was settled with the Supreme Court’s 2008 Heller decision. With this ruling we know that the Constitution provides an individual right to gun ownership, beyond only a militia purpose. Also, federal and state governments can impose restrictions on guns, such as prohibitions against “dangerous and unusual weapons.” Heller has established a reasonably firm foundation for the law of the land.
When words don’t mean what they say. From a layperson’s perspective, Constitutional interpretation can be baffling, especially when it comes to the Second Amendment. The words could not be clearer: “the right of the people to keep and bear arms shall not be infringed.” Yet gun rights have been “infringed” throughout our country’s history.
For example, “bear arms” has been taken to mean that weapons typically not carried by a single individual are outside the scope of the Amendment. Arms for a militia have been taken to exclude more exotic weapons such as grenades and rockets. Age limits, registration requirements, and waiting periods are among the restrictions imposed in many states.
So despite the plain-English meaning of the Amendment, significant restrictions can be imposed. To some, this can be evidence of improper government overreach.
The distinction between a layperson’s common-sense interpretation and the actual law is also seen in a unique part of the Bill of Rights of the New Hampshire Constitution. Aptly titled “Right of Revolution,” Article 10 states:[W]henever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
This provision clearly identifies a right of New Hampshire citizens to participate in “revolution,” and that they not only can but “ought” to “establish a new government” when the current government is “perverted.” Additionally, “nonresistance” against such an oppressive government is “absurd.”
But courts have dampened any enthusiasm toward a right of armed revolution in New Hampshire. One decision, by the New Hampshire Supreme Court relating to potential subversive activities during the 1950’s, stated:
The right reserved to the people by this Article is not such a broad and unlimited right of insurrection and rebellion as to permit any group which is dissatisfied with existing government to lawfully attempt at any time to overthrow the government by force or violence.
Furthermore, the court wrote:
The right possessed by the people of this state as a protection against arbitrary power and oppression cannot be utilized to justify the violent overthrow of government when the adoption of peaceful and orderly changes, properly reflecting the will of the people, may be accomplished through the existing structure of government.
In other words, the right of revolution in the New Hampshire Constitution is limited to the right to change the government through the democratic process. Yet in some quarters, beyond only New Hampshire, this “right” to take up arms against perceived government tyranny is alive and well, and is most commonly seen in some (but not all) “private militias.”
What is a militia? U.S. law defines both an organized and unorganized militia, the latter consisting of all able-bodied men between 17 and 45. States also continue to have their own militias, such as state National Guard units, although the U.S. government can federalize those groups (as has been done during Civil Rights disputes in the 1960’s).
An additional type of militia exists, commonly called a private militia. These are armed groups composed of private citizens and are not recognized under state or federal law. Such groups have a right of assembly and legal gun ownership. However, several states impose restrictions, such as prohibiting drilling or parading with arms, or training in guerilla warfare or sabotage. One state—Wyoming—prohibits private militias altogether.
Private militias are loosely organized and have varying agendas. Some militia groups attempt to assist in law enforcement, such as restricting the entry of illegal immigrants. Some conduct training exercises in preparation for potential threats, both foreign and domestic. Many oppose what they see as encroachment on the rights of citizens by the federal government. There are over two hundred private militias including the Texas Light Foot Militia, Missouri Militia, and Oath Keepers. Some groups, such as Three Percenters and Arizona Border Recon, claim to not be militias, though their activities are similar.
Extremists within private militias can have firm convictions about their own particular brand of patriotism, to the extent that they indicate a willingness to take up arms against the U.S. government when they feel that it has engaged in the same type of tyranny as the Colonists experienced in the 1700’s. This is sometimes known as the Insurrection Theory.
The Insurrection Theory. The Declaration of Independence states:[G]overnments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government…
The Declaration provided the rationale for the American Colonists to engage in armed revolt, listing a series of offenses by King George III. The Insurrection Theory follows from this idea. It claims that the Second Amendment establishes the means by which the people of the U.S. can engage in revolution.
We can look to the Constitution itself to evaluate whether there is validity to the Insurrection Theory and find that the Constitution states the exact opposite. The very purpose of the militia as indicated in Article I is to “suppress Insurrections and repel Invasions,” not facilitate them.
Furthermore, the word “militia” in Article I is specified as an organization led and trained under state government authority, not by any non-government group. Citizens participate in these militias, but only through state or federal leadership.
The Supreme Court has rejected to legitimacy of the Insurrection Theory in the 1951 case Dennis v. United States. It said:
Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.
The objections to British rule indicated in the Declaration of Independence hinged on the lack of adequate representation, i.e., that there was no consent of the governed. This is not the case in our current democratic government.
In short, armed rebellion against the United States cannot be supported in any legal sense and clearly cannot be considered patriotic.
Examples of Insurrection. Two outbreaks in our country’s early history establish how the government reacted to arguments that it had become tyrannical. Shay’s Rebellion in 1786-87 was just such an uprising, against taxes levied by Massachusetts. The Whiskey Rebellion in 1791 against federal taxes was another. These were illegal acts, not patriotism, and were put down through military force.
More recently, in 2014, Nevada rancher Cliven Bundy was involved in a standoff with law enforcement involving unpaid fees for grazing his cattle on federal land. In 2016, Ammon Bundy (Cliven Bundy’s son) and others were involved in another armed standoff at a wildlife refuge in Oregon. They argued that federal land was constitutionally required to be turned over to the individual states.
In both Bundy cases, the contentions of the groups appeared to have no legitimacy under the law, but nonetheless some members of the public were more sympathetic to the Bundy’s concerns than those of the government. As one observer has pointed out, “if legal and constitutional arguments could persuade the militia movement, there might not be a militia movement.”
Conclusion. As the Rasmussen survey shows, a significant number believe that a purpose of the Second Amendment is to support armed insurrection if the government engages in activities that one considers tyrannical. This is a misinterpretation of what the Second Amendment was intended to protect. It was instituted to guard state governments against the new and untested central government, not to assist citizen uprisings.
Individuals might believe that certain laws are not fair, or that some laws should not apply to them. Nonetheless, citizens have an obligation to follow the law. Any other approach leads to a breakdown in an ordered government. Despite a lack of perfection, a democratic government is vastly better than anarchy.
One of the briefs in Heller indicated:
This country does not countenance the use of violence as a political tool and never has…. The Amendment cannot reasonably be understood…to protect a right to possess firearms for the purpose of engaging in violence against a government that an individual believes to have overstepped its bounds.
Today the Second Amendment coupled with American traditions supports gun ownership for self-protection, hunting, and recreation. There is no additional Constitutional rationale for gun ownership as a protection against tyranny.