Constitutional Myth #6: The Second Amendment Allows Citizens to Threaten Government

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The "right to bear arms" is not a right to nullify any government measure a "sovereign citizen" finds irksome

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In 2008, the Supreme Court recognized--for the first time in American history--the "right to bear arms" as a personal, individual right, permitting law-abiding citizens to possess handguns in their home for their personal protection.  Two years later, it held that both state and federal governments must observe this newly discovered right.

Curiously enough, the far-right responded to these radical victories as if the sky had fallen.  During hearings on the nomination of Elena Kagan to the Supreme Court, Alabama Sen. Jeff Sessions direly warned that the two gun cases--Heller v. District of Columbia and McDonald v. City of Chicago--were 5-4 decisions.  "Our Second Amendment rights are hanging by a thread," he said. The idea that the rights of ordinary gun owners are in danger is a fallacy.

A second, and more pernicious, fallacy is embodied by this quotation from Thomas Jefferson, America's third president: 

When governments fear the people, there is liberty. When the people fear the government, there is tyranny. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

Wait a minute, Epps! Who could argue with Jefferson?  Well, not me, to be sure.  But there's a problem with this quote, as there is with so much of the rhetoric about the Second Amendment.  

It's false.  

If good government actually came from a violent, armed population, then Afghanistan and Somalia would be the two best-governed places on earth

As far as scholars can tell, Jefferson never said it.  Monticello.org, the official website of the Thomas Jefferson Foundation, says, "We have not found any evidence that Thomas Jefferson said or wrote, 'When governments fear the people, there is liberty. When the people fear the government, there is tyranny,' or any of its listed variations." The quotation (which has also been misattributed to  Samuel Adams, Thomas Paine, and The Federalist), actually was apparently said in 1914 by the eminent person-no-one's-ever-heard-of John Basil Barnhill, during a debate in St. Louis.

As bogus as the quote is the idea that the purpose of the Second Amendment was to create a citizenry able to intimidate the government, and that America would be a better place if government officials were to live in constant fear of gun violence.  If good government actually came from a violent, armed population, then Afghanistan and Somalia would be the two best-governed places on earth.  As we saw from the 2010 shootings in Tucson, Arizona, the consequences for democracy of  guns in private hands, without reasonable regulation, can be dire--a society where a member of Congress cannot meet constituents without suffering traumatic brain injury, and where a federal judge cannot stop by a meeting on his way back from Mass without being shot dead.

But that image of a Mad Max republic lives on in the fringes of the national imagination.  It is what authors Joshua Horwitz and Casey Anderson call "the insurrectionist idea," the notion that the Constitution enshrines an individual right to nullify laws an armed citizen objects to.  Its most prominent recent expression came from Senate candidate Sharon Angle, who predicted that if she was unable to defeat Democratic Sen. Harry Reid at the ballot box (which she couldn't), citizens would turn to "Second Amendment remedies"--in essence, assassination.  Rand Paul also likes to hint that the remedy for rejection of his libertarian policies may be hot lead. Deathandtaxesmag.com quotes him as saying, "Some citizens are holding out hope that the upcoming elections will better things. We'll wait and see. Lots of us believe that maybe that's an unreliable considering that the Fabian progressive socialists have been chipping at our foundations for well over 100 years. Regardless, the founders made sure we had Plan B: the Second Amendment." 

The history and meaning of the Second Amendment are a murky subject.  A fair reading of the entire text of the Constitution suggests that the most prominent concern of the its framers was protecting states' control of their militias.  Under Article I § 8 of the Constitution, the states transferred to Congress the power "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel Invasions" and "to provide for organizing, arming, and disciplining, the militia." This was one of the most radical features of the original Constitution; under the Articles of Confederation, states had complete control of their militias. Opponents of ratification suggested that the new federal government might proceed to disarm and dissolve the state militias and create instead a national standing army.  The Second Amendment most clearly addresses that concern; and that has led a number of historians to suggest that the Amendment really has no relation to any personal right of individuals to "keep and bear arms."

History is rarely that clear, however, and the notion of personal gun possession as a right is also deeply rooted in American history.  UCLA Law Professor Adam Winkler, author of the forthcoming Gunfight: The Battle over the Right to Bear Arms in America, notes that since before the Amendment was proposed, many citizens have discussed the right to bear arms as a guarantee against tyranny as well as a feature of a federal system.  Indeed, Winkler's reading of the history finds more support for this anti-tyranny idea than for the Supreme Court's current doctrine that the Second Amendment supports a right of personal self-defense. But the protection against tyranny was a long-term structural guarantee, not a privilege of individual nullification, he says. "I don't think there's any support for the idea that government officials should be afraid of being shot."

It would be odd indeed if the Framers of the Constitution and the Bill of Rights had written an amendment designed to give individuals the right to liquidate the government they were setting up.  In fact, having been through a revolution, they had few illusions about the virtues of violence. When they gathered in Philadelphia in 1787, the original Framers were very aware that armed bands of farmers in Massachusetts had revolted against the state government only a few months earlier.  Washington, in particular, found the news of Daniel Shays's rebellion in that state so disturbing that it contributed to his decision to come out of retirement and help frame a new national charter to prevent such outbreaks.  

At Philadelphia, Gouverneur Morrison of Pennsylvania warned the delegates that failure would precipitate new outbreaks of rebellion. "The scenes of horror attending civil commotion can not be described, and the conclusion of them will be worse than the term of their continuance," he said. "The stronger party will then make traitors of the weaker; and the gallows & halter will finish the work of the sword."

After becoming President, Washington himself led a national army into Western Pennsylvania to suppress a rebellion against the new federal tax on whiskey.  (This is the only time in American history a President has served as Commander-in-Chief in the field.) In a subsequent message to Congress, he showed precious little sympathy for "Second Amendment remedies":

[T]o yield to the treasonable fury of so small a portion of the United States, would be to violate the fundamental principle of our constitution, which enjoins that the will of the majority shall prevail.  . . . [S]ucceeding intelligence has tended to manifest the necessity of what has been done; it being now confessed by those who were not inclined to exaggerate the ill-conduct of the insurgents, that their malevolence was not pointed merely to a particular law; but that a spirit, inimical to all order, has actuated many of the offenders.  

In 2011, there is abroad in the land "a spirit, inimical to all order," particularly if that order concerns federally guaranteed environmental protection, economic regulation, or civil rights.  Voices from the far-right are trying to plant a parasitic meme in our Bill of Rights: that America is not a self-government republic, but a dark Hobbesian plane where each "sovereign citizen" chooses what laws to obey, and any census taker or federal law-enforcement agent had better beware. The long-term result of such a "right to bear arms" would be an ungovernable state of nature, where life, both civic and individual, would be solitary, poor, nasty, brutish and short.

The Second Amendment now securely holds a right to personal self-defense against assault, but not against the obligations of citizenship. A right of self-defense, like the right of free speech, or the right to be secure against unreasonable searches, is subject to reasonable regulation. Common-sense concern with the consequences of legal rules, not chest-thumping about squirrel rifles and the Revolutionary War, will produce a system of laws that would recognize the nation's heritage of gun ownership, and allow reasonable regulations to protect us all from Somalia-style chaos.


Image Credit: Wikimedia Commons



Garrett Epps's Full Constitutional Myth Series:

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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