The "insurrectionary theory" of the Second Amendment is nonsense

Every time there’s a guns-related thread, it seems, someone will post something to the effect that the purpose, or a purpose, of the Second Amendment is to allow the people to have guns to “keep the government honest,” or to enable the people to resist a tyrannical government with armed force if necessary, or words to that effect. This is often called the “insurrectionary theory” of the 2nd Am.

This is nonsense. That notion certainly was in the air at the time the Bill of Rights was adopted, but it never found its way into the Constitution. The original text of the Constitution expressly authorizes the POTUS to command all militia, and insurrection is a thing neither protected nor tolerated – it is, rather, a circumstance where the right of habeas corpus may be suspended (though whetehr by the POTUS or Congress is left unclear; Lincoln asserted the power and got away with it, at any rate). Nothing in the 2nd Amendment changes any of that one iota; if it were meant to, it would say so explicitly. The “well regulated militia” clearly is conceived as an arm of government (whether state or federal), not as a countervailing popular force against government (whether state or federal). The only reason there’s anything in the BoR about the militia at all is because the many Americans at the time had a fear (irrational in hindsight, but rational based on their recent experiences with the Redcoats) of a large standing army as a potential threat to domestic liberty.

how would one write a law or an ammendment that would allow for an insurection or uprising against the government?

“If 2/3 of the people don’t like us, then they can raise up arms to dismiss us” ?

As you stated - the insurrection theory was prevalent in the minds of the framers - after all, it was what they just went thru personally. So, its not ‘nonsense’ in that regard.

In reality - these days - the ‘insurrection’ idea is implausible simply due to scale and the way the entire US of Frickin A is structured - not to mention that you’re unlikely to get ‘enough’ people to agree on it to cause more than a ‘disturbance’.

Seems to me to be implicit in granting the right of the people to keep and bear arms. After all, at the start of the Revolution the founding fathers had just gone through it WAS the people and their arms that did all the initial water carrying, and if we could do that against the Brits then obviously an armed populace could do the same against a government unpopular enough to have enough of it’s armed citizens take up arms against it. You are stating that it’s ‘nonsense’ but how do you back that up, historically speaking? Honestly, having read the Federalist Papers and other writings of the FFs I’m not seeing how you can claim this, but feel free to produce some cites to back up your claims BG. My own take is that some of them thought that there WOULD be occasions where the populace might have to rise up and take control of THEIR government again if things got out of whack. These guys were revolutionaries after all, and some of them were pretty radical for their time.

Whether any of this is applicable now is irrelevant to the question or assertion you are making, BTW.

I disagree with the OP. I think there was an implied recognition of the possibility of insurrection. Obviously, the Constitution wasn’t going to explicitly state “And if we start acting really bad, feel free to overthrow us.” But they did explicitly give the people the ability to overthrow the government* - and giving them the ability is worth more than giving them permission.

*At least by 18th century standards. There’s no longer a realistic possibility of a civilian militia armed with privately owned weapons defeating a professional army armed with military weapons.

Oh, I don’t know about that. The Afghans during the Soviet invasion were basically just tribal militias and they did quite well against the Soviets…and essentially that’s what we’ve been fighting ourselves in Afghanistan as well as what we were fighting in Iraq and even in Vietnam as far as the Viet Cong went. Obviously they couldn’t fight it out with a professional army in a vacuum without external support, but then the Revolutionary Americans didn’t do that either, since France was buttering our biscuit. In terms of today, the thing is, if there ever WERE enough ordinary citizens pissed off enough to try and overthrow the government you can bet that the military would be split as well (seeing as how it’s an all volunteer force made up of basically ordinary Americans who all live here too), so I don’t think it’s as cut and dried as you are making it.

Regardless, it’s not really germane to the OP who is asserting that the FFs never thought of this aspect when giving every citizen the right to keep and bear arms, which I’m dying to see how BG backs up.

I have long thought that the Second Amendment would be far better written as one of the following:

“Being necessary to the defence of the nation, members of state militia shall not have their right to carry or possess arms infringed” (If you’re one of those that thinks the militia should not not be a legal nullity, supreme court rulings aside)

OR

“The individual right to carry or possess personal arms shall not be infringed” (stating that it is clearly an individual’s right, but allowing for excluding things like cannons and tanks).

Sadly, this is not the case, but we’re stuck with what we’ve got.

Well, we could have gone with Madison’s original proposal which seems clear enough:

The ambiguity of what we have is due mainly to folks who don’t want to go and read what the original authors thoughts on the subject (there are extensive writings, especially from Madison on what he thought he was saying and why) and the fact that the above went through a series of draft changes in committee. Honestly, at this point, the right thing to do (if enough people actually want it) would be to do away with the amendment using the process the founding fathers intended for changes to the Constitution.

Weren’t states fearful of a central govt usurping their rights and wasn’t that the whole point of a bill of rights?

In which case, isn’t the second am. basically a guarantee of the states’ ability to enforce the bill of rights? That probably seems circular until you consider that any attempted usurpation would likely be preceded by an attempt to limit the ability of states form any kind of armed resistance to federal power.

It’s not part of our legal framework because by definition it’s extralegal. Nevertheless, many of the founders supported the idea, which makes sense given that that’s how our country was founded.

I think the idea was that if the government operated outside the bounds of the law, then the people would be justified in overthrowing it. The people cannot be bound by an illegal government, can they?

Article 5 of the Constitution describes the procedures by which it can be amended by a sufficient vote, making an armed uprising against it unnecessary. If the necessary level of support is not present, then an armed uprising does not represent the will of the people but is an insurrection instead. Article 2 authorizes the President to act to suppress it, and Article 4 guarantees the states protection from insurrection by federal authority instead.

And the slave states did have a reality-based fear of more domestic insurrection. That too was prevalent in their minds.

No, the *original *proposal was the one actually in effect at the time of the Constitutional Convention, the one written in the Articles of Confederation:

Bolding added. That’s the historical context - it’s about establishing a military force to *protect *the State, not to threaten it. Come on now.

Um, no. From the wiki page you probably got this from:

This part, of course, only dealt with the militia aspects of the 2nd, and isn’t involved in the personal arms rights at all. It was a political fight waged to maintain the states ability to act as sovereign (or at least semi-sovereign) entities by making sure that viable military power resided in their hands and not in the hands of a federal government that could challenge them. It’s fairly ironic that you’d quote this, since I seriously doubt you would agree or want that sort of military power to reside at the local state level as opposed to the federal level.

Come on yourself. You should really do more than a quick google search if you want to seriously debate this stuff, since it’s pretty clear you don’t know that much about it and are trying to twist things to conform to what you WANT it to mean and be. Not that you are alone in this, since it seems to be the standard mode for a lot of anti-gun folks.

I wonder. In the unlikely, but theoretically possible case of a government that was so far removed from the people that a majority of citizens in every town took up arms, I really can’t see how tanks, fighter planes and nuclear bombs could contain the uprising. The sheer numbers of citizens would overwhelm the organized military, which would be spread too thin. And some soldiers might sympathize with the other side.

The charm of the US Constitution is that it makes such a drastic divide between government and governed unlikely.

It is easier to vote the bastards out than shoot them.

Are you really finding it that difficult to find the text of the Articles online? Here’s one. It’s easy, you only have to click on it.
Let us know if there’s anything else you’re having trouble Googling; we’re here to help.

Only to help understand what the writers meant by it, which was to establish a military force.

Perhaps you ought to read the whole thing - it would show you how the federal government was the creature of the states, not a threat to it. That also would help you understand why the Convention was called - to create a federal government that would have ultimate power over the states, since it was already obvious to them that that “states’ rights” stuff wasn’t working and couldn’t ever work. Here’s a Google exercise for you, since you apparently need practice: “Supremacy Clause”. Copy and paste if you need to.

Says the guy who quotes some anonymous Wiki poster instead of trying to actually find the actual document that says something inconvenient. :smiley:

Do you really think you’re helping yourself with that approach here?

Not only that, but the military cannot be guaranteed to put down the people, and in fact usually won’t, unless the generals’ fate is tied up with the fate of the President. That’s why in dictatorships, generals tend to be appointed for political loyalty rather than military expertise.

IOW, it’s meant to preserve the means for conducting extra-legal actions. And while the intention may have been limited to such actions as they may relate to states’ rights, the fact of the matter is the amendment was deliberately worded more broadly and one might even say vaguely.

Beyond this, I’d point out that the framer’s intent is irrelevant. The constitution has always been a living document. If you like, you can certainly infer that much intent on the part of the framers. In fact, if there can be said to be one paramount, overriding intent, that would have to be it. There is no glossary of definitions for example. There’s no official legislative record that clearly establishes what was intended by specific language although James Madison’s account I believe provides much detail. Even so, IIRC, there was still disagreement in many cases. It’s a document that was never intended to be read as if it were the inspired word of god, unchanging and immutable in its meaning - even w/o amendment. So if you really want to look for legislative intent, that’s the place you should both start and finish.

I agree it’s a living document, but only to the extent that any other law’s meaning changes with the times. The Constitution is law, so it’s meaning is just as immutable or mutable as say, the Davis-Bacon Act.

Obviously, if they could free themselves from the rule of a small country a few thousands miles away which had other problems, including many other imperial territories and wars with powers of far greater strength and proximity than the US, they could do the same to an American government with far fewer interests elsewhere in the world?

Not really. A law can be repealed with a 2/3’s vote of both houses (or majority and assent of the president of course - it’s been so long I nearly forgot about that option :wink: ). The Constitution can only be changed by a much more cumbersome legislative process or by a fundamental change in jurisprudence as practiced by the Supreme Court. So they’re really very different animals.

The ease of changing it makes no difference. Law is still law.

Where they are different is in specificity. “Cruel and unusual punishment” is not defined, so obviously what is cruel or unusual can change with the times. But where the Constitution is specific, changing attitudes or culture makes no difference.