“When You Strike at the King You Must Kill Him”: The Second Amendment and the Right of Insurrection
By Carl Cecere*
The Supreme Court’s 2008 decision in District of Columbia v. Heller certainly seemed to make the Second Amendment sound like a fairly domesticated animal. When the Court announced that the amendment protected a right of to possess firearms for self-defense, it stoked fears in many gun control advocates, who wondered what sorts of firearms laws would be invalidated. But the Court’s opinion went to great lengths to assuage these fears, by demonstrating this right was subject to some very strict and well-defined limits. Justice Antonin Scalia, writing for the majority, emphasized that this “was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” And he outlined a number of “longstanding prohibitions” on gun ownership and possession that the Court expected to easily pass constitutional muster, including laws preventing felons and the mentally ill from possessing firearms, “forbidding the carrying of firearms in sensitive places such as schools and government buildings,” or imposing “conditions and qualifications on the commercial sale of arms.”
Perhaps most importantly, Justice Scalia’s opinion noted that because the amendment’s “central” purpose was self-defense, the right’s protections would be confined to those weapons typically “possessed by law-abiding citizens for lawful purposes,” like “hunting” or “self-defense.” The Second Amendment thus would not prohibit laws outlawing the carrying of “concealed” or “dangerous and unusual weapons” like “short-barreled shotguns” or “weapons that are most useful in military service” like the M-16. This vision of the Second Amendment presented the right to bear arms as a defensive creature, for preservation of hearth and home, preservative of individual and family.
This creature bears little resemblance to the Second Amendment described most often today, just five years later, in our nation’s soul-searching discourse following the Sandy Hook elementary school massacre. We hear far less about self-defense, of hearth and home. Instead, we hear about a right of revolutionary violence enshrined in the Constitution. And this version of the Second Amendment right is very broad in scope, standing directly in the path of virtually every form of proposed gun control legislation.
The common thread among those espousing this insurrectionist vision is the notion that the Second Amendment exists primarily to prevent “tyranny,” whether from some occupying foreign power, or the illegitimate actions of our own government. This theory holds that to enable citizens to combat the threat of tyranny, they must not be out-gunned by their tyrannical oppressors. They must instead be permitted to outfit themselves with the implements of war. And the determination of when those arms should be used is ultimately up to the individual’s own conscience.
This idea may sound extreme, but it is not relegated to the fringe. Serious politicians, pundits, scholars and jurists openly espouse the idea. And according to a Rasmussen poll, over 65 percent of the American people—and even a majority of those who do not own weapons themselves—see the right to bear arms as ensuring that people can protect themselves against tyranny.
This notion of a right of insurrection is deeply rooted in an idyllic vision of our common revolutionary past. We imagine the minuteman springing spontaneously to arms to combat his menacing foe, possessed with certainty of his cause and the solidarity of his fellow citizens. This version of history is a myth. Like all good myths, it certainly has a kernel of truth. But it also gets some pretty basic historical facts wrong.
Did the Founding generation fear “tyranny,” in both its foreign and domestic forms? Undoubtedly. Did they think that an armed citizenry had a role in combatting it? Surely. Did the Second Amendment secure that right? No doubt about it.
But did they believe that the Second Amendment would give every individual the right to arm themselves with whatever weapons they chose, and did it leave to the individual the decision whether to employ those weapons? Absolutely not.
To understand why, we must understand the precipitous conditions that followed the Revolution and the concerns that motivated the eventual creation of the Constitution. The Founders well knew that the track record for independent republics like their own fledgling enterprise was not pretty. As Alexander Hamilton so forcefully put it in Federalist 28:
It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.
A successful republic would have to thread the needle between those two extremes.
By the end of the Revolution, the Founders had certainly come to understand the dangers of tyranny, and had learned how to dispatch it. But in decades that followed, they came to dread the possibility of anarchy far more, because the possibility of violence at the hands of dangerous and unruly mobs was an existential threat to the Republic. The disastrous inadequacies of the Articles of Confederation had left the country heavily in debt and financially insecure. The harsh financial conditions that resulted, and tone-deaf responses by both the national and state governments, led to numerous episodes in the post-revolutionary period where “the people” resisted lawful authority under force of arms. In 1783, even before ink was put to paper on the Treaty of Paris, a cabal within the ranks of Washington’s own officer corps in the Continental Army, who had not been paid in many months, threatened to revolt. Washington was able to quell his dispirited men with his skill at negotiation and the sheer force of his personality.
But violence from unruly mobs of armed citizens could not always be prevented. The most famous episode of the period was Shays’ Rebellion, when another band of Revolutionary War veterans led by Daniel Shays stormed Northampton Massachusetts to shut down the courts and prevent their farms from being foreclosed upon. The result for Shays’ Rebellion was typical for the period. Many citizens may have sympathized with the plight of the revolutionaries, but at each turn these agitations were put down. The organized militia was called out, the revolutionaries were overtaken by overwhelming force, and the insurrectionists severely punished. The American People would not allow these revolutionary minorities to undo the work of independence and union, or overturn the will of their duly elected representatives.
As the nation sent their leaders to Philadelphia for the Constitutional Convention, it became evident that the fear of anarchy was more potent, and fresh on their minds, then their more abstract concern about potential tyranny. General Washington in particular was coaxed out of retirement to lend support to the cause because he feared that “there are combustibles in every state, which a spark might set fire to” if the Confederation was not reformed.
This concern was evident in the Constitution they produced, which contained three separate clauses empowering the new federal government to deal with potential insurrection and put down angry mobs. Article III, Section 3 empowered Congress to declare, and the courts to try, charges of treason “against the United States.” And the Constitution also greatly augmented the federal government’s ability to deal directly with armed insurgents, with Article I, Section 8’s provision for a standing federal army, which then-President Washington would use shortly after ratification to quell another violent uprising, the Whiskey Rebellion. Article I Section 8 further augmented the government’s repressive potential by granting to it the ability to press the state militias into federal services “to execute the Laws of the Union” and “suppress insurrections.” Through these provisions, the Founders made clear that they stood on the side of order. They would not tolerate an unruly mob, much less provide them arms to do their dirty work.
The Second Amendment was added after the ratification of the original constitution, but did nothing to dilute Americans’ commitment to order. Federalists offered the Second Amendment as part of the Bill of Rights to address Anti-Federalist concerns that the people might be disarmed, just as George III had attempted in the lead up to the hostilities at Concord, Massachusetts. The Second Amendment was meant to ensure that law-abiding citizens would have guaranteed access to weapons. As the Court in Heller explained, the “central” reason for this right was self-defense, and the weapons protected under the right would be those in common use for self-defense. But the Court noted that this right had a secondary purpose—to preserve the “well-regulated militia” as a fighting force by guaranteeing, at a minimum, that citizen-soldiers would have some sort of arms to bring to muster.
The Second Amendment did not, however, protect private ownership of military-grade weapons. Then, as now, weapons that people kept for self-defense were very different than those used by fighting forces. The militia, of course, utilized a variety of heavy cannons that bore nothing at all in common with personal firearms. But even the hand-held weapons favored by soldiers were very different than their civilian counterparts. The citizen soldier in the 1780s usually used a heavy, large-caliber smoothbore military musket with fixed bayonet, like the Brown Bess carried by British Regulars. This was far different from the types of small-caliber private arms available at the time like the more common fusil or fowler. As different, in fact, as an M-16 is from a common shotgun.
These military-grade weapons came with military-grade restrictions, because the militia was not a mob. When the militia reported for muster, they became a single fighting force—the “well-regulated militia.” They acted under color of state or federal authority. The militiaman did not obey his own individual conscience. He followed orders from commissioned officers, or he faced military discipline. And the militia stood on the side of order and authority, to preserve the state’s monopoly on the use of force. As noted above, the “well-regulated” militia was most often used in the post-Revolutionary period to dispatch angry mobs, not support them.
Perhaps most importantly, in the “well-regulated” militia, military superiors made the determination of who would bear what kind of arms, and usually registered and tracked every military-grade weapon that they issued. And those heavy military weapons were as often kept outside the home, as in it—in stockades or armories. The citizen soldier had no “right” to keep that type of weapon in his home for personal use. A person’s status as a member of the militia thus did not convey to him the choice of how he ought to arm himself, or a right to choose his target—any more than a juror can decide guilt or innocence of a criminal suspect on his own.
To be sure, the Founders never intended to dispense with the right of revolution entirely. Anti-Federalists moved to preserve the militia as a counterbalance against a federal standing army—and a check against a potentially tyrannical federal government. The militia could only do so if it possessed some latent threat of raising arms against the federal government.
Moreover, the potential for revolt is an important part of our heritage. Our country was born in revolution, and the right to revolt against a truly repressive regime is the birthright of all human beings—it exists beyond the reach of all constitutions and laws.
But the whole idea of stockpiling weapons just for that potential confrontation would have made no sense to the Founders. If they took up arms against the federal government, they would do so as a part of the “well-regulated militia”—an orderly, directed, military force of their own. They vast majority of early Americans would never have legitimized a mob.
Moreover, because in America, the people themselves would be the sovereign, even the most extreme Anti-Federalists anticipated that armed revolt would be an option only in the narrowest possible circumstances—in the event of an actual military coup or when the federal government tried to enforce a law after a court had ruled it to be unconstitutional. That is, when the government itself ceased to obey the law. And if the people did truly find it necessary to take up arms, they knew that the Constitution would no longer protect them. Instead, they knew all-too-well that history would be their judge, and success their only potential defense. As Emerson said, “If you strike at the king, you must kill him.”
It is so common for Americans today of all political stripes to to raise threats of revolt at the easiest provocation. We do a grave disservice to our revolutionary forbearers when we do so. When we threaten violence, we have the luxury of wrapping ourselves in protections provided by the very freedoms we threaten to destroy. We risk nothing. But generations of Americans risked everything—and many gave everything—to give us those freedoms. That is what it really takes to be a revolutionary.
*Carl Cecere is an appellate lawyer in Dallas, Texas, and a member of The Constitutional Sources Project’s Legal Advisory Board. Carl represented D.C. in District of Columbia v. Heller. The views expressed here are his own, and not necessarily those of D.C. He can be reached at ccecere@hankinsonlaw.com, or at 214.754.9190.
