Saturday, December 29, 2012

No, the Second Amendment Does Not Guarantee a Right to Armed Revolution

In the contemporary debate on the meaning of the Second Amendment, proponents of gun ownership rights refer to two fundamental natural rights arguments to justify the ownership of firearms: 1) the natural right to self-defense; 2) the natural right of revolution. The former has been endorsed by the Supreme Court in District of Columbia v. Heller and McDonald v. Chicago. The latter is merely hyperbolic rhetoric in the real debate on gun control which must be put to rest once and for all.    
You can see only the first of these two natural law justifications in the prefatory clause of the Second Amendment: [a] well regulated militia being necessary to the security of a free state” and the operative clause: “the right of the people to keep and bear arms shall not be infringed.” The Second Amendment articulates a right to self-defense and preservation of life and liberty both as a collective and an individual sense, both as a member of a "well regulated militia" and as "a people." A person has a constitutional right to bear arms for the common defense as a member of a well regulated militia, and post-Heller and McDonald, as an individual.

              To understand the Second Amendment, one must look to the Constitution's other references to the regulation of militias in Article I and Article II. The states ratified the Second Amendment and its guarantee for the people to “to keep and bear arms” and raise a “well regulated militia” only four years after the Constitutional Convention authored Article I – which gave Congress the authority to “raise and support Armies” and to “provide and maintain a Navy.” Article I § 8, also authorized Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and 
“[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
In the Commander in Chief Clause Article II, the Constitution authorized the President as “Commander in Chief of the Army and Navy of the United States, and of the Militias of the several States, when called into the actual Service of the United States.” 

            In each and every one of the references to the “Militia” or “Militias” in Articles I and II, the plain meaning of the text of the Constitution is that the Founders envisioned a concomitant regulation of the militias. The states would be able to train their own militias and appoint their own officers to maintain law and order in their respective states, but Congress and the President would be able to call upon the militias to maintain federal laws, suppress insurrections and repel invasions. Surely the Second Amendment forbids the militias or the people from engaging in insurrection or invasion of the United States, because the Second Amendment right to form a state militia exists so that the militias can quell insurgencies and invasions.
Read the Second Amendment again. Nowhere in the Second Amendment does it say that  the the well regulated Militias of the several states – let alone each the people – have a constitutional right to take up arms against the United States government.
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. 
            Clearly, the Founders wanted to explicitly protect the states’ rights to field their own militias as central to the defense of the Republic. Historians attribute James Madison’s inclusion of the Second Amendment in the Bill of Rights as an overture to the Anti-Federalists who were concerned that the new federal government would disband the state militias – concentrating all military power in the hands of the federal Army and Navy. The Second Amendment was written in the aftermath of the American Revolutionary War, at a time when the Articles of Confederation was incapable of preserving the security of the Republic from British, French, or Spanish invasion, the Massachusetts militia was incompetent to quell Shay's Rebellion (1786-87), and white settlers in the Virginia frontier and Ohio Territory were engaging in low-level warfare with the Native American tribes.

           Massachusetts needed a militia because when Daniel Shays and his fellow agrarian revolters shut down the Commonwealth courthouses in Northampton and Springfield, the Boston mercantile class could not count on the toothless Articles of Confederation government to maintain law and order. Governor John Bowdoin had to organize a private militia. Just a few years after the ratification of the Second Amendment, President Washington would quell the Whiskey Rebellion (1791-94) by commanding militias from Pennsylvania, Maryland, Virginia, and New Jersey. States on the border needed to have militias because the Commonwealth of Massachusetts and the British Colony of New Brunswick both claimed parts of what is now Northern Maine, Georgia and Spanish West Florida both claimed what is now Alabama and Mississippi. The settlers needed to keep muskets to defend their outposts from Lenapee and Kickapoo raiders. The right to bear arms as a member of a militia - if not as an individual - was “necessary for the security of a free state” because there was still an impending fear of subversion of the fledgling Republic to foreign monarchs and domestic insurrections, and the Founders wrote the Second Amendment to protect the right to self-defense independent of the United States Army and Navy.           
            However, the natural law Second Amendment-thumpers must dispense with the notion that the “right of the people to keep and bear arms” was ratified as an additional layer of checks and balances; i.e. the right of the people to defend their natural liberties from an overbearing United States government. Such an argument is directly contradicted in the text of the Constitution itself. Article I gives Congress the authority to federalize the state militias to “suppress Insurrections and repel Invasions.” Article II gives the Commander in Chief supreme command over the Army and the Navy as well as the militias when called to service. The difference between the Army, the Navy and the militias is that Governors can call the militias into service too to quell riots and fight forest fires, they are only federalized with explicit Congressional or Presidential invocation of their Article I and Article II powers. Nowhere in the Constitution or anywhere in the minutes of the Convention or the correspondence between Jefferson and Madison and Adams and Hamilton is there any inkling of an idea that the state militias can check the authority of the federal courts or the U.S. Army or Navy.

             Moreover, the Constitution explicitly prohibits any U.S. citizen from bearing arms against the United States. The Treason Clause in Article III defines the crimes: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Without a doubt, the Second Amendment prohibits the people or the militias from levying war against the United States - the rare federal crime actually codified in the text of the Constitution. The Confederates who took up arms against the Union seven decades later were traitors, they were guilty of a crime which could be punishable by death upon the testimony of two witnesses or confession, and conviction in a federal court of law. If the Michigan Militia were to use their arsenal of AK-47 and M16s and seize an armory from the Michigan National Guard, that would be an act of treason. 
            Conversely, the notion that Madison included the Second Amendment in the Bill of Rights as a last layer of defense of civil liberty in case the federal government exceeded its authority is without sufficient corroboration. There are some fragments of quotations from Jefferson and the New Hampshire Constitution which might seem to convey such a natural right to revolution against governmental power, but even the most committed Originalist cannot possibly argue that a bloodthirsty quote from Thomas Jefferson unincluded in the text of the U.S. Constitution trumps the text of the Treason Clause in Article III. The Founders were concerned about the risk of consolidated federal power, but they were even more worried about mob rule.
So what if there is a natural right to revolution against tyrannical governments more fundamental than the Second Amendment? The Declaration of Independence surely espouses this radical notion, and this is why so many Americans tend to smile upon decolonization movements and armed uprisings against brutal dictatorships in Kosovo, South Sudan, Libya, Syria, et al. In instances where a genocidal regime wages war against its own people and threatens the very existence of an entire nation, most Americans look to the universal promise of the Declaration of Independence and sympathize with the inherent right of the people to rebel against an oppressive government.              
            But that has no bearing on perceived slights to liberty within the realm of the U.S. Constitution. If you think that income tax rates are too high or that the Affordable Care Act takes away your right to not have health insurance, you can agitate for change within the proper channels: you can run for office, you can vote in state and federal elections, you can mount a challenge in a federal court. But the Second Amendment does not give you a means to redress your grievances by armed force. No matter how much you disagree with a law, the Constitution provides for avenues to peacefully challenge the laws within the institutions of law and democracy – not by brute force. The Second Amendment says that a well regulated militia and the right of the people to bear arms is “necessary to the security of a free state” – but that free state is the United States of America.


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Anonymous said...

When it gets so bad there's a need for revolution, what's in the constitution or not will be irrelevant.

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Abe said...

1. An armed man is a citizen. An unarmed man is a subject.

2. The Second Amendment is in place in case the politicians ignore the others.

3. What part of "shall not be
infringed" do you not understand?

4. A gun in the hand is better than a cop on the phone.

5. Gun control is not about guns; it's about control.

6. If guns are outlawed, can
we use swords?

6. If guns cause crime, then pencils cause misspelled words.

7. "Free" men do not ask permission to bear arms.

8. 64,999,987 firearms owners killed no one

9.An unarmed society is history.

10. “Those that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” -Benjamin Franklin (1706–1790)

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