The Second Amendment Gives No Comfort to Insurrectionists
Many Republicans in Congress agree with Representative Matt Gaetz that the Second Amendment “is about maintaining within the citizenry the ability to maintain an armed rebellion against the government, if that becomes necessary.”
This purported right to overthrow the government means that the people must enjoy access to weapons that are wholly unnecessary for hunting or self-defense, such as military-style assault weapons. As Representative Chip Roy, a Republican, argues, the Second Amendment was “designed purposefully to empower the people to resist the force of tyranny used against them.”
Some champions of this insurrectionist theory of the Second Amendment seem to glorify violence against public officials. Two weeks before the Jan. 6, 2021, insurrection overran the U.S. Capitol, Representative Lauren Boebert declared that the Second Amendment “has nothing to do with hunting, unless you’re talking about hunting tyrants, maybe.”
Statements such as these were irresponsible enough before Jan. 6. Today, such talk courts disaster. It valorizes the brutality of the worst insurrectionary domestic attack at the Capitol in U.S. history, freezes our ability to pass reasonable gun safety legislation and justifies even more deadly political violence. It is essential to reject the myth that frustrated citizens have a Second Amendment right to raise arms against the government — an outrageous betrayal of our Constitution.
This is especially critical at a time when the former president Donald Trump is warning darkly that his potential indictment by government authorities would lead to “problems in this country the likes of which perhaps we’ve never seen before” and is dangling future presidential pardons before convicted Jan. 6 rioters, all while his Q-Anon-influenced followers behave in ever more cultish and disturbing ways.
Let’s start with this basic reality check. Of the more than 900 people charged with crimes tied to Jan. 6 — including smashing windows, assaulting Capitol officers and conspiring to overthrow or interfere with the government — not a single charge has been dismissed by any federal (or state) court on the grounds that the Second Amendment or any other part of the Constitution gives them the right to engage in violent insurrection against the government.
This is for excellent reason. The Constitution treats insurrection and rebellion as political dangers, not protected rights. Article I gives Congress the power to “provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.” The guarantee clause in Article IV tells the United States to guarantee a republican form of government to the states and protect them “against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” These provisions followed Shays’ Rebellion, an armed uprising in Massachusetts in the 1780s.
After the Civil War, the 14th Amendment disqualified from public office anyone who had sworn an oath to support the Constitution but then participated in “insurrection or rebellion” against the United States.
Despite all this abundant repudiation of insurrection and rebellion in the body of the Constitution, some House Republicans still parrot National Rifle Association talking points and insist that the Second Amendment — in invisible ink — protects the right of private citizens to overthrow the government by force.
But nowhere did the framers of the Second Amendment profess that idea, much less embody it in the constitutional text, something that might give pause to self-proclaimed originalists and textualists spouting the theory. Nor did the Supreme Court ever hold during the Civil War that the Confederates had a right to overthrow the Union to defeat what they clearly saw as President Abraham Lincoln’s tyranny. On the contrary, the Supreme Court has emphasized the federal government’s power to enforce the law and quell insurrection.
The Supreme Court has been clear that the Second Amendment’s reference to a “well-regulated militia” means well-regulated by the government. In 1886 the court upheld an Illinois law criminalizing private paramilitary groups as a legitimate measure “necessary to the public peace, safety and good order.” The “militia” is not some reserve power to rebel against the government but the well-organized instrument by which state and federal governments have opposed domestic violence.
Today, all 50 states forbid private paramilitary organizations — a reality at odds with the theory that self-appointed private militias or vigilantes can take up arms and start hunting alleged despots or other political opponents. Raising arms and levying war against the United States can at a certain point become treason under Article III.
When I point out these problems with constitutional insurrectionism, my G.O.P. House colleagues fall back on two responses. First, they quote profusely from Patrick Henry — of “Give me liberty or give me death” fame — which is amusing because Henry was an anti-Federalist who opposed the ratification of the Constitution. It’s like quoting speeches by the Confederate leader Jefferson Davis to settle the meaning of the 13th and 14th Amendments.
More seductively, my Republican colleagues invoke the American Revolution and the idea in the Declaration of Independence that after a “long train of abuses and usurpations,” aggrieved people have the right to “alter or to abolish” the bonds holding them to a tyrannical government.
This is true, of course, but also perfectly irrelevant. The revolutionaries undoubtedly asserted their right as a matter of natural law to overthrow a tyrannical government. But that is completely different from the claim that the American Constitution itself — our binding positive law — guarantees a right to overthrow the American government. Our Constitution does not even guarantee the right to engage in nonviolent civil disobedience to press reform, as Martin Luther King Jr. and John Lewis learned from the inside of many a jail cell. Much less does the Constitution guarantee the right to engage in violent civil disobedience to revolt.
If the American government were to engage in true tyranny — like slaughtering and oppressing the population — we the people would undoubtedly have a right to recite our grievances, proclaim our cause to the world, cut the ties that bind and engage in the kind of revolutionary struggle that the American colonists did. But it would be meaningless and silly to argue that it is the Constitution that granted us the right to do all that.
As the historian Garry Wills long ago explained: “A people can overthrow a government it considers unjust. But it is absurd to think that it does so by virtue of that unjust government’s own authority. The appeal to heaven is an appeal away from the earthly authority of the moment, not to that authority.”
The romantic but entirely fraudulent insurrectionary theory of our Constitution allows Mr. Trump’s followers to suggest that the mass destructive violence of Jan. 6 was something other than criminal and should be established as a model for right-wing politics in this century.
But the way we pursue real grievances about electoral disputes in America is through the law and the courts. Mr. Trump and his followers brought more than 50 lawsuits that were rejected by federal and state judges all across the land. Their team should have taken these losses as America’s debunking of their big lie and gone home.
Written by,
Jamie Raskin represents Maryland’s Eighth Congressional District in the House of Representatives. He served as lead impeachment manager in Donald Trump’s second impeachment trial and is a member of the Select Committee to Investigate the January 6th Attack on the United States Capitol.