Against the Second Amendment as a Tool for Popular Insurrection

This week, friend of Erstwhile and instructor at CU, Martin C. Babicz, examines the historical context of the Second Amendment and how it affects the legitimacy of the occupiers in Oregon. Dr. Babicz received his B.A. from UConn, his M.A. from Brown, and his Ph.D. from CU. In addition to both parts of the U.S. survey, he teaches courses on U.S. colonial history, the American Revolution, and America through baseball at CU. He is currently finishing up a book on U.S. history through baseball.

Whiskey Rebellion

Tarring and feathering a tax collector during the Whiskey Rebellion.

The occupation of a federal building at the Malheur National Wildlife Refuge near Burns, Oregon by so-called “militiamen,” shows why the misunderstanding many Americans have about U.S. history is dangerous. The armed protesters in Oregon, who call themselves Citizens for Constitutional Freedom, claim they are occupying federal land to restore constitutional government. They mistakenly believe that the federal government is in violation of the Constitution, and they have tapped into an erroneous argument that claims the Second Amendment was written to help citizens rebel against the government if it became oppressive. What the armed protesters in Oregon and many other people fail to understand is that the Constitution was written in response to a rebellion. Fearful that other insurrections might follow, the authors of the Constitution wrote that document, in part, to create a government that could put down future rebellions. Thus, the Second Amendment does not legitimize these men’s claims that they are within their rights to form a citizen’s militia to fight the perceived “tyranny” of the federal government.

Shays’s Rebellion broke out in 1786 when farmers in rural Massachusetts rebelled against that state’s unpopular land tax. Governor James Bowdoin asked for help from the national government to suppress the insurrection, but the Continental Congress rejected his request because the existing national constitution, the Articles of Confederation, did not grant the national government the power to intervene in state matters. The insurrection in Massachusetts fueled fears that the national government could not respond to future tax or slave rebellions. In May of 1787, with the embers of Shays’s Rebellion still glowing in Western New England, delegates gathered in Philadelphia to write a new constitution that created a much stronger federal government.

The new constitution took effect in 1789, and, when George Washington became the first president that year, he named Alexander Hamilton the Secretary of the Treasury. In 1791, at the recommendation of Hamilton, Congress adopted an excise tax on all spirits distilled in the United States. Although the tax provided the national government with much needed revenue, it served another purpose. It established the precedent that the new government had the authority to levy taxes, a power the Continental Congress lacked under the Articles of Confederation. When farmers in Western Pennsylvania rose in opposition to the tax, George Washington federalized the state militias of Pennsylvania, New Jersey, Maryland, and Virginia and personally led the troops to Pittsburgh to suppress the rebellion. Washington’s reaction to the “Whiskey Rebellion” demonstrated that the new government, unlike that under the Articles of Confederation, not only had the power to collect taxes, but also had authority to put down rebellions.

The Second Amendment was written at a time when Americans opposed keeping a national army during peacetime. Americans inherited this belief from their English ancestors, as the English Bill of Rights stated that “no standing army may be maintained in peacetime without the consent of Parliament.” Eighteenth-century Americans, like their cousins across the Atlantic, feared that a standing army could be used to take away their liberty. But there was still a need to be prepared in case of an insurrection or enemy attack. Consequently, all able-bodied American men between age 16 and 59 served in their respective state militia, which could be called into action in the event of an emergency. The Second Amendment was written to ensure that these citizen-soldiers would be armed. Congress put a lot of effort in determining the wording of the amendment. James Madison’s first draft of the amendment included a provision for conscientious objectors, which shows that the amendment was more about universal military service than individual gun rights.

The text of the Second Amendment, however, was not written to help individuals rise up against the government, as the protesters in Oregon seem to think. Instead, the amendment was written for a “well-regulated militia,” which the Constitution places under the authority of the national government. Section 8 of Article I of the Constitution states that Congress shall have the power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Furthermore, Section 2 of Article II states the President of the United States is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Rather than resist the power of the national government, the Constitution makes it clear that the militia might be called upon to enforce the power of the national government, as Section 8 of Article I of the Constitution states that Congress shall have the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Further proof that these weapons would be used, not to rebel against the government, but to suppress rebellions can be found in the Federalist Papers, a series of essays in support of the Constitution written by James Madison, Alexander Hamilton, and John Jay. The Federalist Papers make it clear that that the framers of the Constitution feared potential insurrections and saw the new government as a means to quash them. In Federalist No. 9, Hamilton wrote, “A firm Union will be the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.” In Federalist No. 16, he wrote, “As to those partial commotion and insurrections, which sometimes disquiet society…, the general government could command more extensive resources for the suppression of disturbances of that kind.” Finally, to those who might develop an unreasonable paranoid fear of the federal government, Hamilton advised in Federalist No. 28 that the “apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.”

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