# 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:** 7
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [December 25, 2013, 10:44am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/121 "2013-12-25T10:44:50Z")
> [@deltasigma](#): > > The point is that it overturned a long established precedent contrary to your claim that the present court hadn’t done that, so just admit you were wrong - or is that hoping for too much? It was not a long established precedent, since the federal government had never tried to regulate independent expenditures before. It was not even a precedent at all. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [December 25, 2013, 11:16am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/122 "2013-12-25T11:16:42Z")
And in regards to something you said earlier in the thread, the purpose of a Constitution is to lay out the structure and powers of a government, and in the case of a Bill of Rights, to remove certain subjects from the will of majorities. Nothing about our Constitution implies “guidance”, anymore or any less than Davis-Bacon provides guidance about how much to pay workers on a federal project. As for flexibility, the Constitution is already flexible in that it allows for a fairly powerful federal government, and acknowledges that more rights exist than those stated in the Bill of Rights. However, within the boundaries the Constitution actually sets, the only way to change it is with an amendment. For example, Congress can regulate interstate commerce. It cannot regulate that which is not commerce, as established by three Supreme Court decisions going back to 1996 that set boundaries to the commerce power. To allow Congress to regulate guns in school zones, domestic violence, or force people to buy health insurance on penalty of imprisonment, then it would need a general police power. A general police power is something the federal government is prohibited from exercising, absent a constitutional amendment. You would need judges who were willing to just throw out the Constitution entirely to interpret such a power into existence. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [December 25, 2013, 1:21pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/123 "2013-12-25T13:21:03Z")
Just a few merry Christmas thoughts: > [@adaher](#): > > And in regards to something you said earlier in the thread, the purpose of a Constitution is to lay out the structure and powers of a government, and in the case of a Bill of Rights, to remove certain subjects from the will of majorities. The primary purpose of the Constitution was to give the federal government taxation powers. This allowed members of Congress, greatly represented among members of the Constitutional Convention, to get greater and more regular pay. The Bill of Rights was thrown in to get hold-out states to ratify the rest of it. > [@adaher](#): > > You would need judges who were willing to just throw out the Constitution entirely to interpret such a power into existence. They might have to soft-pedal some of the sweeping parchment platitudes in the Bill of Rights that can’t be taken literally anyway. But they still could follow specifics, such as the presidential system and separation of powers which make us subject to governmental paralysis. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [December 25, 2013, 1:33pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/124 "2013-12-25T13:33:50Z")
> [@deltasigma](#): > > What I don’t like is people pretending to know about things which they clearly don’t. And I never said it’s not law so don’t try to put your words OR your dick in my mouth, m’kay? At least not unless you take me to dinner first. Ok, that’s enough. I’ve got to toss you a warning for that one deltasigma. Such phrases don’t belong in Great Debates and you should know that. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [December 30, 2013, 8:06am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/125 "2013-12-30T08:06:54Z")
> [@adaher](#): > > 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. I think you’re missing something. All of the Bill of Rights only originally applied to the federal government. It was only later incorporated into the states after the fourteenth amendment. So, yes, it is limiting what the federal government does towards individuals. But it was not limiting what the states did towards individuals. As for claims about the grammar of the second amendment–that’s precisely the problem. It isn’t grammatical. The main clause appears to have two subjects, both “a well regulated militia” and “the right of the people.” It reads like a sentence fragment followed by a comma splice. Take out the dependent clause, which, by definition, you should be able to do, and you are left with “A well regulated Militia the right of the people to keep and bear Arms, shall not be infringed.” That’s not a sentence. Not that it gets much better if we fix it and make it say “As a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Does the law depend on the necessity of a militia? If not, then why mention it at all? Why bother explaining why you are implementing a law unless the validity of that reason factors into whether it should be enforced? But, if it does factor in, how does it do so? Is the point to have an optional militia you can call up, made up of private citizens? Or is the point to make sure that the private citizens can defend against that militia should they go rogue? And is either one a good reason for not abridging the right to bare arms? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [December 30, 2013, 11:51am UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/126 "2013-12-30T11:51:33Z")
Those are good points. The reason the 2nd amendment continues to be upheld as an individual right though, is because a) the 14th amendment incorporated the Bill of Rights against the states, and b) effectively repealing a Bill of Rights amendment on the reasoning that it’s purpose is obsolete would open a Pandora’s box that would endanger not just other rights, but older laws too. ---
**Author:** ![Latro](https://avatars.discourse-cdn.com/v4/letter/l/a87d85/32.png) [@Latro](https://boards.straightdope.com/u/Latro)\ **Post date:** [December 30, 2013, 12:04pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/127 "2013-12-30T12:04:55Z")
> [@BigT](#): > > Does the law depend on the necessity of a militia? If not, then why mention it at all? Why bother explaining why you are implementing a law unless the validity of that reason factors into whether it should be enforced? Yes, the security of the state was to depend on the militia, not the regular army. The regular army was kept at just 600 men strong! That’s the historcal context the 2nd needs to be placed in. They were realy, realy scared of the regular army being used as an instrument of _Tyranny_. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [December 30, 2013, 2:45pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/128 "2013-12-30T14:45:43Z")
> [@Latro](#): > > Yes, the security of the state was to depend on the militia, not the regular army. > The regular army was kept at just 600 men strong! > That’s the historcal context the 2nd needs to be placed in. They were realy, realy scared of the regular army being used as an instrument of _Tyranny_. N.B.: The point of the militia is not to fight the Army but to fight **instead of** the Army. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [December 30, 2013, 3:03pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/129 "2013-12-30T15:03:48Z")
> [@BrainGlutton](#): > > N.B.: The point of the militia is not to fight the Army but to fight **instead of** the Army. Where do you get this from? ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [December 30, 2013, 3:24pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/130 "2013-12-30T15:24:17Z")
Not to fight _instead_ of the Army, necessarily. They could also fight alongside the Army, on American soil. The Constitutions permits Congress: > [@](#): > > To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [December 30, 2013, 3:41pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/131 "2013-12-30T15:41:22Z")
> [@Human\_Action](#): > > Not to fight _instead_ of the Army, necessarily. They could also fight alongside the Army, on American soil. The Constitutions permits Congress: Yes, but the original point of the militia system appears to be to avoid the necessity of a **large** peacetime standing army, such being perceived, or misperceived, as a threat to liberty. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [December 30, 2013, 3:54pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/132 "2013-12-30T15:54:02Z")
> [@BrainGlutton](#): > > Yes, but the original point of the militia system appears to be to avoid the necessity of a **large** peacetime standing army, such being perceived, or misperceived, as a threat to liberty. Agreed, I didn’t realize that’s what you meant by “fight instead of the Army”. That perception was accurate circa 1787, given the recent experiences of the colonial Americans. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [December 30, 2013, 4:02pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/133 "2013-12-30T16:02:37Z")
> [@BrainGlutton](#): > > Yes, but the original point of the militia system appears to be to avoid the necessity of a **large** peacetime standing army, such being perceived, or misperceived, as a threat to liberty. Yes, the point of a militia system was so you wouldn’t have to use a large (and expensive) standing army, since your citizens could be armed (often with their own weapons and equipment). In the US it was thought to be preferable to having a large peacetime professional military for a variety of reasons, money being one, but also the perception (which was quite valid at the time) that large standing armies were a threat to liberty, since every example of such an army at their time reinforced the perception…i.e. the large standing armies in Europe were instruments used by the various princes to keep the people in line and properly oppressed and to strengthen the establishment. This didn’t change (in Europe or elsewhere) until much later…and in fact, it’s still not universally changed, since there are certainly places on Earth today where a large standing army is used to oppress the population and prop up dictators. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 30, 2013, 5:18pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/134 "2013-12-30T17:18:51Z")
> [@adaher](#): > > The present court has overturned no precedents. \*Heller \*overturned _Miller_. Even if they couldn’t make themselves admit it. > [@](#): > > Next you’ll tell me that the states aren’t sovereign. Article VI, Section 2: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” IOW, yes. States have no rights against the will of the feds. Never did. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [December 30, 2013, 6:01pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/135 "2013-12-30T18:01:27Z")
> [@ElvisL1ves](#): > > Article VI, Section 2: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” > > IOW, yes. States have no rights against the will of the feds. Never did. That’s a bit too broad. States do retain some rights: > [@](#): > > New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. > [@](#): > > No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear or pay Duties in another. > [@](#): > > No Tax or Duty shall be laid on Articles exported from any State. > [@](#): > > The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. > [@](#): > > The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. > [@](#): > > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 30, 2013, 6:08pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/136 "2013-12-30T18:08:06Z")
> [@Human\_Action](#): > > That’s a bit too broad. States do retain some rights: Only where the feds are restricted from doing _anything_. States cannot do anything in opposition to anything the feds can do. Anyway, that was in response to \*\*adaher’\*\*s claim that states are _sovereign_. Not since ratification, they aren’t. There was a challenge to that principle once, but it was definitively settled in the landmark case _Grant v. Lee._ ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [December 30, 2013, 6:24pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/137 "2013-12-30T18:24:41Z")
> [@ElvisL1ves](#): > > Only where the feds are restricted from doing _anything_. States cannot do anything in opposition to anything the feds can do. Fair enough, and you’re right in the above. It is worth pointing out that they do have rights, though, they are just narrow and few. > [@ElvisL1ves](#): > > Anyway, that was in response to \*\*adaher’\*\*s claim that states are _sovereign_. Not since ratification, they aren’t. There was a challenge to that principle once, but it was definitively settled in the landmark case _Grant v. Lee._ Sovereign states combined in a union makes no sense anyway. By the nature of entering into a union, sovereignty is lost. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [December 30, 2013, 6:40pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/138 "2013-12-30T18:40:02Z")
> [@Human\_Action](#): > > Sovereign states combined in a union makes no sense anyway. By the nature of entering into a union, sovereignty is lost. Which is pretty much the difference between the old Articles of Confederation and the newer Constitution. The Confederation had little existence beyond the voluntary consensus of the states; the new Federal government was an independent entity with sovereign power over the states. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [December 30, 2013, 6:46pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/139 "2013-12-30T18:46:18Z")
> [@ElvisL1ves](#): > > Only where the feds are restricted from doing _anything_. States cannot do anything in opposition to anything the feds can do. > > Anyway, that was in response to \*\*adaher’\*\*s claim that states are _sovereign_. Not since ratification, they aren’t. There was a challenge to that principle once, but it was definitively settled in the landmark case _Grant v. Lee._ > [@Human\_Action](#): > > Sovereign states combined in a union makes no sense anyway. By the nature of entering into a union, sovereignty is lost. I’ve seen it described as “parallel sovereignty.” The states are sovereign **except** as against the U.S. Constitution and laws enacted thereunder, etc. One important difference: The federal government has only “enumerated powers,” while state governments have “plenary sovereignty” or a “plenary police power” – internally, state legislatures/governments can do anything the U.S. Constitution, laws thereunder, etc., and their own state constitution do not expressly forbid. ---
**Author:** ![Deeg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deeg/32/2955_2.png) [@Deeg](https://boards.straightdope.com/u/Deeg)\ **Post date:** [December 30, 2013, 9:49pm UTC](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597/140 "2013-12-30T21:49:57Z")
I’ve been following along this interesting (to me) discussion and wanted to say that this is one of the more sane debates regarding the 2nd Amendment I’ve read; little (if any) diatribes or frothing at the mouth. Bravo. [Previous page](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597.md?page=6) [Next page](https://boards.straightdope.com/t/the-insurrectionary-theory-of-the-second-amendment-is-nonsense/669597.md?page=8)