Getting History Right

03.25.13

No, the 2nd Amendment Does Not Authorize Armed Sedition

The founding fathers did not establish a banana republic
Video screenshot

This weekend I posted a book club entry about Adam Winkler's important history of US gun law, Gunfight

In that entry, I wrote that 19th century Americans conceptualized the "militia" as an agency of government power: state and local government, but government all the same. There were, obviously, non-government armed forces in the 19th century United States. John Brown organized one to attack Harper's Ferry in 1859; demobilized Confederate soldiers waged war on black neighbors as the Ku Klux Klan. But (I wrote)

Before 1965, it would have occurred to precisely nobody that the Second Amendment guaranteed the right to organize private armies independent of the state.

At National Review Online, Kevin Williamson has now written to correct me.

Kevin insists, contra me, that the Founding Generation did believe that they had granted permission to disaffected individuals to raise private armies independent of government control. In support of this claim, Kevin offers a proof-text from the writings of the great Jeffersonian-turned-Federalist jurist, Joseph Story:

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

Kevin has used this quote at least twice: once in the reply to me, and before that in a longer-form article published in 2012.

On neither occasion did Kevin provide either a link or a cite to the quote. Perhaps Kevin believes that Story's 1833 Constitutional Commentaries (the source of the quote) remain so well-known to contemporary Americans that no cite is necessary. Or possibly Kevin just borrowed the quote from Sanford Levinson's famous 1989 law review article, The Embarrassing Second Amendment.

I'm inclined to the latter hypothesis, because if Kevin had read the passage in full (it's online here, courtesy of the University of Chicago), he'd have noticed something awkward:

In the very next sentence after Levinson and Kevin terminate their quotation, Story adds the following words:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations.

"Militia discipline." "Regulations."

Colonial and early American militias were not paramilitary organizations. They were military organizations, into which individuals were conscripted, trained, commanded, and subjected to military discipline including the penalty of court martial.

The debate over the "militia" in the 18th and early 19th century was a debate over which government should control the new nation's main military force: federal or state? Here are some extracts from James Madison's notes on the 1787 Philadelphia convention:

Mr. ELSWORTH & Mr. SHERMAN moved to postpone the 2d. clause in favor of the following "To establish an uniformity of arms, exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States" The object of this proposition was to refer the plan for the Militia to the General Govt. but6 leave the execution of it to the State Govts.

Mr. LANGDON said He could not understand the jealousy expressed by some Gentleman.7 The General & State Govts. were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Govt. is mine, the State Govt. is mine. In transferring power from one to the other, I only take out of my left hand what it can not so well use, and put it into my right hand where it can be better used.

The evidence could be multiplied endlessly by anybody with access to a Google machine, let alone a good library. But really, the evidence should be redundant. Can anybody imagine the authors of any constitution doing anything quite so insane as writing into their very charter of government a grant of permission for armed sedition?

The Founding Generation was deeply influenced by recent English history, especially the way in which Oliver Cromwell had used his New Model Army - the original Redcoats - to suppress parliamentary government.

That history underlay the great debates in the Founding Generation over the respective merits of militias versus professional armies, debates that arrayed on one side those Founders who had fought in the Continental Army (and experienced the uselessness of the state militias in battle against drilled troops) against those Founders who had not.

But the Founding Generation also knew their classical history, which was studded with examples of powerful Romans raising private armies to capture the government. When they wanted to abuse each other, the Founders invoked the name of Catiline, the bankrupt aristocrat prosecuted by Cicero for conspiracy against the state. This fear was so real that in 1807 the Jefferson administration indicted Jefferson's own former vice president, Aaron Burr, of treason. The substance of the charge? Burr had raised a private army. The government charged that Burr was inciting rebellion in the western territories of the United States. Burr's defenders insisted that he was merely planning to invade and conquer Mexican territory. Nobody - nobody! - suggested that the Second Amendment authorized Burr or anybody else to raise an army against Washington, DC, if Burr happened to feel oppressed.

Early Americans did sometimes invoke a "right of revolution." But those early Americans regarded the right of revolution as a natural right, a right that inhered in all human beings everywhere. As Abraham Lincoln phrased it in an 1848 speech: "Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable - a most sacred right - a right, which we hope and believe, is to liberate the world."

But obviously - and almost by definition - this right of revolution could not be a civil right, a right recognized in a positive law, like the Constitution and its Amendments. Again to quote Lincoln, this time the first inaugural address: "It is safe to assert that no government proper ever had a provision in its organic law for its own termination."

Enough. I doubt I'm contributing anything here that does not come as old news to people who read political websites. Surely everything I'm saying ought to be well-known to people who write for political websites. Yet it seems not to be known to Kevin Williamson. And the surplus of conceit on display in Kevin's replies is a poor substitute for this deficit of knowledge.