# The "insurrectionary theory" of the Second Amendment is nonsense **URL:** \ **Category:** Great Debates\ **Created:** [September 24, 2013, 7:57pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597 "2013-09-24T19:57:39Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![deltasigma](https://avatars.discourse-cdn.com/v4/letter/d/e5b9ba/32.png) [@deltasigma](https://boards.straightdope.com/u/deltasigma)\ **Post date:** [September 25, 2013, 1:43am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/41 "2013-09-25T01:43:09Z")
> [@adaher](#): > > Okay, then let’s take my example of the lack of clarity in the health care law that I pointed out. How should that be interpreted, and how would that differ from how you’d interpret an equally ambiguous constitutional provision? > > Democrats are arguing that their intent was to provide subsidies in all 50 states, whether they had a federal exchange or a state exchange. The law’s text says otherwise, although it’s not so specific as to ban subsidies for federal exchanges. How should the courts approach that decision, when it comes? It’s impossible to say w/o context of some sort. However I think it would be perfectly valid to apply different rules of interpretation in each situation and get different results as a consequence. What’s important though is that you see that the documents serve different purposes and therefore, even before you read them, you can and should decide what approach makes the most sense. Do you really want to read a 200 year old document as literally as possible w/o veering off into absurdity, do you want to read it as expansively as possible w/o violating the spirit of its provisions, or do you want to find some middle ground that keeps it relevant to the present and preserves its core values in the process. Similarly, are those the same considerations you would want to apply to a statute that can easily be modified or repealed? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 1:43am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/42 "2013-09-25T01:43:20Z")
> [@BrainGlutton](#): > > But how **can** any court take the 2nd Amendment literally? Consisting of two (or maybe even three) clauses with no very clear relationship to each other, it is really the most **ambiguous** element in the Constitution. Debate and litigation over what it means, including such basic questions as whether it embodies a collective or individual right, [goes back to the 1820s](http://en.wikipedia.org/wiki/Gun_politics_in_the_United_States#Jacksonian_era). You’re right. But that’s doesn’t change the fact that it’s binding. It just means we don’t know what it means. But that’s true of regular laws too. As I pointed out, regular laws also often suffer from vagueness or self-contradictions. It doesn’t make them any less binding, it just means that in the absence of the law being amended, the courts have to decide what it means. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 1:46am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/43 "2013-09-25T01:46:00Z")
> [@deltasigma](#): > > It’s impossible to say w/o context of some sort. However I think it would be perfectly valid to apply different rules of interpretation in each situation and get different results as a consequence. What’s important though is that you see that the documents serve different purposes and therefore, even before you read them, you can and should decide what approach makes the most sense. > > Do you really want to read a 200 year old document as literally as possible w/o veering off into absurdity, do you want to read it as expansively as possible w/o violating the spirit of its provisions, or do you want to find some middle ground that keeps it relevant to the present and preserves its core values in the process. Similarly, are those the same considerations you would want to apply to a statute that can easily be modified or repealed? I don’t disagree with you about the approach to interpretation except that you’re making a distinction between laws based on how hard they are to change, which I don’t think has any legal validity. If a constitutional provision is understood to mean something, and decades of case law agree that it means that thing, then that’s what the law is and the only way to change it is by amendment. Not justices changing their minds, unless it’s because previous courts were blinded by biases of the times, like racism. ---
**Author:** ![deltasigma](https://avatars.discourse-cdn.com/v4/letter/d/e5b9ba/32.png) [@deltasigma](https://boards.straightdope.com/u/deltasigma)\ **Post date:** [September 25, 2013, 1:46am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/44 "2013-09-25T01:46:44Z")
> [@adaher](#): > > The government can’t punish the speech itself, only tangible harm that it does. If your words start a panic, then you started a panic. Here’s a better example: libel. Libel is only punishable if it does actual harm. If everyone knows it’s a lie because it’s so ridiculous, it’s not punishable. > > Here’s another example: The Stolen Valor Act. The act was struck down because while we all agree that lying about getting medals is pretty reprehensible, no one is actually harmed by the practice. > > Justice Anthony Kennedy, writing for a plurality consisting of himself, Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor, wrote that false statements are not, by the sole reason of their falsity, excluded from First Amendment protection.[23] “The Court has never endorsed the categorical rule the Government advances,” Kennedy wrote. “Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.”[24] Even though there are several examples of the use of penalizing false speech (like perjury), Kennedy argued that “[t]he Government has not demonstrated that false statements generally should constitute a new category of unprotected speech…” > > [United States v. Alvarez - Wikipedia](http://en.wikipedia.org/wiki/United_States_v._Alvarez#Kennedy.27s_plurality_opinion) The t[heater example](http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater) is the classic example of speech that can be prohibited. > [@](#): > > **“Shouting fire in a crowded theater”** is a popular [metaphor](http://en.wikipedia.org/wiki/Metaphor) for speech or actions made for the principal purpose of creating unnecessary panic. The phrase is a paraphrasing of [Oliver Wendell Holmes, Jr.](http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr.)'s [opinion](http://en.wikipedia.org/wiki/Legal_opinion) in the [United States Supreme Court](http://en.wikipedia.org/wiki/United_States_Supreme_Court) case _[Schenck v. United States](http://en.wikipedia.org/wiki/Schenck_v._United_States)_ in 1919, which held that the defendant’s speech in opposition to the [draft](http://en.wikipedia.org/wiki/Conscription) during [World War I](http://en.wikipedia.org/wiki/World_War_I) was not protected [free speech](http://en.wikipedia.org/wiki/Freedom_of_speech) under the [First Amendment](http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution) to the [United States Constitution](http://en.wikipedia.org/wiki/United_States_Constitution). ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 1:48am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/45 "2013-09-25T01:48:13Z")
That’s a discredited decision though. The wiki even points out that Holmes himself doubted his reasoning later on. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [September 25, 2013, 1:50am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/46 "2013-09-25T01:50:16Z")
> [@adaher](#): > > We literally have freedom of speech I’d agree that we have more than most other free countries. > [@](#): > > freedom of religion According to the first amendment, the federal government cannot make a law respecting an establishment of religion. That literally protected Connecticut, and the towns of Massachusetts, from having their established religions monkeyed with by Washington. Did the fourteenth amendment change the meaning of the first amendment establishment clause to its opposite? Many seems to think that, and it’s the kind of absurd result you can get from taking a platitude literally. > [@](#): > > and the right to be free of unreasonable searches and seizures Unreasonable? That word means nothing. Now, I do believe the case law on searches means a lot. But because the literal wording is meaningless, the Supremes have little real guidance in the text. > [@](#): > > trial by a jury of our peers This is one platitude our founders thankfully left out. Given the lack of a hereditary nobility in the US, the word peer makes no sense. The phrase “of our peers” is a platitude that seems to mean something big but really, in the US context, means nothing. > [@](#): > > . . . the judicial branch takes the Bill of Rights very literally. Whatever anyone thinks about abortion, I can’t imagine how you can cling to this idea after Roe v. Wade. I think the US is a good country. But we have a mediocre constitution. It could be worse, though. The US Consitution, could, like that of Pennsylvania, include the platitude about a jury of peers. Then, I suppose, if our US-British joint citizen daughter got on the Queen’s honours list, and became a peer of the realm, she couldn’t serve on a federal jury – assuming a literal constitutional construction. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [September 25, 2013, 1:53am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/47 "2013-09-25T01:53:45Z")
> [@adaher](#): > > You’re right. But that’s doesn’t change the fact that it’s binding. It just means we don’t know what it means. But that’s true of regular laws too. As I pointed out, regular laws also often suffer from vagueness or self-contradictions. It doesn’t make them any less binding, it just means that in the absence of the law being amended, the courts have to decide what it means. Well, I don’t believe any American court, state or federal, is ever going to endorse the “insurrectionary theory” of it. ---
**Author:** ![deltasigma](https://avatars.discourse-cdn.com/v4/letter/d/e5b9ba/32.png) [@deltasigma](https://boards.straightdope.com/u/deltasigma)\ **Post date:** [September 25, 2013, 1:54am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/48 "2013-09-25T01:54:25Z")
> [@adaher](#): > > I don’t disagree with you about the approach to interpretation except that you’re making a distinction between laws based on how hard they are to change, which I don’t think has any legal validity. If a constitutional provision is understood to mean something, and decades of case law agree that it means that thing, then that’s what the law is and the only way to change it is by amendment. Not justices changing their minds, unless it’s because previous courts were blinded by biases of the times, like racism. You’re reading too much into what I’m saying. I don’t mean that the constitution should ALWAYS be reinterpreted in spite of it’s language. I’m saying that the argument for doing so is more easily made in that context - and not just for practical reasons, but for a host of reasons, including some that may be motivated by expedience. The real point is that when a document serve the purpose of providing general guidance rather than specific direction as in the case of a constitution, it is more appropriate to look behind the language to the larger principles and values expressed and less at the specific words. Certainly you do this to some extent when interpreting a statute, but for differ reasons, using different methods and to different degrees. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 2:01am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/49 "2013-09-25T02:01:05Z")
Okay, I read you. But I think we would both agree that interpretation cannot actually contradict the text of the Constitution when it is clear, nor can interpretation go beyond the bounds of plausible meanings of unclear text. To steer this back to the 2nd amendment, it’s clear that there is an individual right to bear arms in there. “The right of the people to bear arms shall not be infringed”. So there’s no way the courts could interpret it so that people didn’t have the right to bear arms. ---
**Author:** ![njtt](https://avatars.discourse-cdn.com/v4/letter/n/ecd19e/32.png) [@njtt](https://boards.straightdope.com/u/njtt)\ **Post date:** [September 25, 2013, 2:04am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/50 "2013-09-25T02:04:08Z")
I do not know how accurate this is, but according to [this guy](http://www.smirkingchimp.com/thread/thom-hartmann/47623/the-second-amendment-was-ratified-to-preserve-slavery), the second amendment was written and ratified as a sop to the southern, slave owning states, who needed armed militias in order to keep down potential slave revolts, and would not have ratified the constitution if citizen militias, controlled at the state level, had not been constitutionally sanctioned in this way. It wasn’t about facilitating insurrections, it was about preventing them. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 2:08am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/51 "2013-09-25T02:08:18Z")
MAybe. If that interpretation is true, then states have the sole authority to decide who can and cannot bear arms. That would actually make federal gun control harder to do(impossible, actually), while making it easier for states like New York to limit gun ownership. I can buy that the 2nd amendment refers to a reserved state power, or an individual right, but it would make no sense as a collective right or something the federal government had any say in. ---
**Author:** ![deltasigma](https://avatars.discourse-cdn.com/v4/letter/d/e5b9ba/32.png) [@deltasigma](https://boards.straightdope.com/u/deltasigma)\ **Post date:** [September 25, 2013, 2:08am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/52 "2013-09-25T02:08:50Z")
> [@adaher](#): > > To steer this back to the 2nd amendment, it’s clear that there is an individual right to bear arms in there. “The right of the people to bear arms shall not be infringed”. So there’s no way the courts could interpret it so that people didn’t have the right to bear arms. I think it would be pretty tough to argue around the 2nd am. and somehow prohibit the possession of firearms, so if that’s the idea, I have to agree. I’d also say that while I personally don’t think the theory of the OP is necessarily nonsense, it therefore doesn’t really matter much one way or the other. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 2:10am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/53 "2013-09-25T02:10:36Z")
Definitely. The whole point of insurrection is that is exists outside a legal framework. In insurrections, there’s only one law: the side that wins is right. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [September 25, 2013, 2:15am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/54 "2013-09-25T02:15:47Z")
> [@adaher](#): > > To steer this back to the 2nd amendment, it’s clear that there is an individual right to bear arms in there. “The right of the people to bear arms shall not be infringed”. So there’s no way the courts could interpret it so that people didn’t have the right to bear arms. But, that’s just it, that’s the ambiguous part – does it mean “the people” collectively or individually? The “well regulated militia” element is hardly relevant to the latter; not even in those days did they expect militiamen, when called up, to bring their own weapons from home like some of them did in the Revolution; as was mentioned upthread, by the time the BoR was ratified, the militias were **state** organizations and state-armed. That’s why, as I said, debate and litigation on that very point goes back to the 1820s. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [September 25, 2013, 2:21am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/55 "2013-09-25T02:21:26Z")
> [@njtt](#): > > I do not know how accurate this is, but according to [this guy](http://www.smirkingchimp.com/thread/thom-hartmann/47623/the-second-amendment-was-ratified-to-preserve-slavery), the second amendment was written and ratified as a sop to the southern, slave owning states, who needed armed militias in order to keep down potential slave revolts, and would not have ratified the constitution if citizen militias, controlled at the state level, had not been constitutionally sanctioned in this way. > > It wasn’t about facilitating insurrections, it was about preventing them. That blog is a product of Thom Hartmann, known as a right, perhaps far-right, political “columnist.” I do not know if he is correct, but it smacks of revisionist history. I’d take it with a grain of salt until examined more closely. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 2:28am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/56 "2013-09-25T02:28:38Z")
> [@BrainGlutton](#): > > But, that’s just it, that’s the ambiguous part – does it mean “the people” collectively or individually? What does a right collectively held mean? I can’t imagine what a collective right could be. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [September 25, 2013, 3:03am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/57 "2013-09-25T03:03:01Z")
> [@adaher](#): > > What does a right collectively held mean? I can’t imagine what a collective right could be. In this case (perhaps), the right of states to arm their militias without federal interference or limits (see [post #12](http://boards.straightdope.com/sdmb/showpost.php?p=16694865&postcount=12)). As for why – maybe to allow the states to be prepared to resist federal power (but that really can’t be squared with anything else in the Constitution, and see [post #33](http://boards.straightdope.com/sdmb/showpost.php?p=16695345&postcount=33)), maybe to allow the states to be prepared for slave revolts (see [post #50](http://boards.straightdope.com/sdmb/showpost.php?p=16695472&postcount=50), but see also [post #55](http://boards.straightdope.com/sdmb/showpost.php?p=16695516&postcount=55)). In any case, the right clearly does have somethingorother to do with militia, which would make it something **other** than an individual right. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 3:17am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/58 "2013-09-25T03:17:02Z")
So it’s a state power, not a collective right. Here’s why I don’t think that interpretation really works: First, the second part clearly states an individual right. Second, the states already had that power, by virtue of the federal government NOT having that power(see 10th amendment). The 2nd amendment would have to be unique in having nothing to do with individuals. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [September 25, 2013, 3:36am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/59 "2013-09-25T03:36:53Z")
> [@BrainGlutton](#): > > But, that’s just it, that’s the ambiguous part – does it mean “the people” collectively or individually? It’s odd that you raise this question as if it hasn’t been addressed before. After Heller, “the people” is not ambiguous. [From the opinion](http://www.law.cornell.edu/supct/html/07-290.ZO.html): > [@](#): > > a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). **All three of these instances unambiguously refer to individual rights,** not “collective” rights, or rights that may be exercised only through participation in some corporate body.5 > > ``` > Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6 > > What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990) : > > ``` > > “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” > > This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” > > ``` > **We start therefore with a strong presumption that the Second Amendment right is exercised individually** and belongs to all Americans. > > ``` (my bold) The opinion continues at length and clearly and unambiguously concludes that “the people” are individuals. Feel free to disagree with how the law should be, but there is no question as to what the law says with respect to this phrase. > [@BrainGlutton](#): > > In any case, the right clearly does have somethingorother to do with militia, which would make it something **other** than an individual right. No. The prefatory clause does not limit or expand the scope of the operative clause. There are rights connected with the militia and the prefatory clause informs those rights, but there are also rights that are recognized independently by the operative clause. [From the syllabus of the opinion](http://www.law.cornell.edu/supct/html/07-290.ZS.html): > [@](#): > > (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Again, you may disagree with how the law should be, but there is no question as to the meaning of the prefatory and operative clauses. Of course, this could all change if SCOTUS decides otherwise. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 25, 2013, 12:49pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/60 "2013-09-25T12:49:31Z")
**All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5** I had an argument with some Dopers where I said that “the people” in the Constitution meant people as individuals. Liberal types insisted it meant the people as a collective. They were wrong. [Previous page](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597.md?page=2) [Next page](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597.md?page=4)