Monday, October 05, 2015

Enemies of the State – Reflections on Insurrection and the Second Amendment


"Famous Whiskey Insurrection in Pennsylvania", an 1880 illustration of a tarred and feathered tax collector being made to ride the rail (click to enlarge; source)

by Gaius Publius

Not long ago, this excellent piece by Ken explored the real meaning of the Second Amendment. An added, also excellent, comment by John Puma contributed to the discussion. I'd like to summarize what these two are saying, then print the whole of the first part of Justice John Paul Stevens' dissent in Heller, the Scalia-authored Supreme Court majority opinion that "found" a right for personal gun ownership in the Second Amendment, an amendment about "militias." At the end, I'll add a comment of my own about American insurrection.

Quoting Adam Gopnik's good essay on this subject in The New Yorker, Ken writes (my emphasis):
To the inevitable argument "that the Second Amendment acts as a barrier to anything like the gun laws, passed after mass shootings, that have saved so many lives in Canada and Australia," Adam replies: "In point of historical and constitutional fact, nothing could be further from the truth: the only amendment necessary for gun legislation, on the local or national level, is the Second Amendment itself, properly understood, as it was for two hundred years in its plain original sense."
So what is the "plain original sense" of the Second Amendment? Keep in mind the times. The Constitution was establishing a strong federal government, and the relationship between that government and the (formerly supreme) state governments were continuously at issue. Each state had a state "militia" — a state army, in other words. Would the federal government require that these state militias be disbanded and replaced with a (standing) federal army?

Keep in mind as well that these state militias (state standing armies) had many functions, including suppressing insurrections — in the South, especially slave insurrections, as Thom Hartmann points out. In fact, according to Hartmann, these "militias" were also called "slave patrols," tasked with hunting down runaways.

But state militias weren't just for use against the slaves. This shows the role of state militias during the Whiskey Rebellion of 1791 (links at the source; my emphasis):
The Whiskey Rebellion, also known as the Whiskey Insurrection, was a tax protest in the United States beginning in 1791, during the presidency of George Washington. The so-called "whiskey tax" was the first tax imposed on a domestic product by the newly formed federal government. It became law in 1791, and was intended to generate revenue to help reduce the national debt.[3] Although the tax applied to all distilled spirits, whiskey was by far the most popular distilled beverage in the 18th-century U.S. Because of this, the excise became widely known as a "whiskey tax". The new excise was a part of U.S. treasury secretary Alexander Hamilton's program to fund war debt incurred during the American Revolutionary War.

The tax was resisted by farmers in the western frontier regions who were long accustomed to distilling their surplus grain and corn into whiskey. In these regions, whiskey was sufficiently popular that it often served as a medium of exchange. Many of the resisters were war veterans who believed that they were fighting for the principles of the American Revolution, in particular against taxation without local representation, while the U.S. federal government maintained the taxes were the legal expression of the taxation powers of Congress.

Throughout counties in Western Pennsylvania, protesters used violence and intimidation to prevent federal officials from collecting the tax. Resistance came to a climax in July 1794, when a U.S. marshal arrived in western Pennsylvania to serve writs to distillers who had not paid the excise. The alarm was raised, and more than 500 armed men attacked the fortified home of tax inspector General John Neville. Washington responded by sending peace commissioners to western Pennsylvania to negotiate with the rebels, while at the same time calling on governors to send a militia force to enforce the tax. With 13,000 militiamen provided by the governors of Virginia, Maryland, New Jersey, and Pennsylvania, Washington rode at the head of an army to suppress the insurgency. The rebels all went home before the arrival of the army, and there was no confrontation. About 20 men were arrested, but all were later acquitted or pardoned. Most distillers in nearby Kentucky were found to be all but impossible to tax; in the next six years, over 175 distillers from Kentucky were convicted of violating the tax law.[4] Numerous examples of resistance are recorded in court documents and newspaper accounts.[5]

The Whiskey Rebellion demonstrated that the new national government had the will and the ability to suppress violent resistance to its laws.
Even after the ratification of the Constitution, state militias had a military function.

Justice Stevens' Dissent in "Heller"

Now read Justice Stevens' excellent takedown of Justice Scalia's majority opinion in Heller. Trust me, you'll enjoy it (my emphasis in italics; links in the original):
Stevens, J., dissenting
No. 07–290
on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit
[June 26, 2008]

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55, n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921).

In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.


The text of the Second Amendment is brief. It provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects.

“A well regulated Militia, being necessary to the security of a free State”

The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies.6 While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers.

The parallels between the Second Amendment and these state declarations, and the Second Amendment ’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.

The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803). [...]
The rest is a good read as well, though occasionally legalistic, as you'd expect.

Again, the concern of the framers was to protect armed state militias ... only. If they were concerned with protecting the hunting rights of citizens, as the contemporaneous Pennsylvania and Vermont Declaration of Rights documents did explicitly, they would have done so, explicitly. Scalia's opinion, joined by the right-wing majority of the Court, is a 180-degree reversal of the plain meaning of the Second Amendment.

Which leads us to one or two more considerations.

Enemies of the State: The American Insurrection

I have two takeaways from this discussion. Both are striking, and they echo each other in that they stand in 180-degree opposition to each other on exactly the same topic, American insurrection.

First, the primary argument (the "rationale" in sales terms*) of the American Right in favor of a "gun rights" interpretation of the Second Amendment is this: The reason (they say) the Founders wanted citizens to be armed is to oppose the federal government. Yet, as John Puma points out, Article One, Section 8 of the U.S. Constitution enumerates the powers of Congress, one of which is (paragraph 15, my emphasis):
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
▪ So ask yourself — How can anyone, for any minute, consider that a Constitution that protects the government's right to "suppress insurrections" also adds a right that encourages and arms them? The Constitution is plainly, obviously, an anti-insurrectionist document.

Second, it's been clear for some time that the American Right is not interested in government as established by the Constitution. Their elected officials aren't interested in using the power of Congress to govern, in using the power of the Executive Branch to enforce the law; nor are their appointed justices interested in using the power of the Court to enforce the Constitution.

Using the power of government to subvert the government is itself insurrectionist. Which tells us two things — the insurrectionist strain in voters of the American Right (per their arguments in favor of "gun rights") is matched by the insurrectionist strain in their leaders and those who hold office in their name.

▪ So ask yourself — Why is the rest of the country not treating this insurrection as an insurrection, like the Whiskey Rebellion, instead of treating it as just another difference of political opinion? In other words, why are we not treating the virtual (and sometimes literal) armed rebels in the hills as a threat to the existence of our government?

That's a serious question. The rest of the country does not see the American Right as an insurrection, is determined not to, in fact, and also is encouraged not to. The reasons they don't and won't see the insurrection as an insurrection are both revealing and determinative of the outcome. After all, would the modern and mainly corrupted Democratic Party be able to sell its own brand of "rule by the rich" if they didn't have Republicans to point to as political enemies, instead of what they are, enemies of the state itself?

It seems at least possible that if the Democrats didn't keep the insurrectionist Republican Party alive as political enemies, their leaders would have to offer actual popular solutions, Sanders- and Warren-esque solutions, instead of only offering solutions favored by the wealthy that finance both parties.

I'm serious. Picture a world in which the Republicans were delegitimized as a political party. What would happen to the Democratic Party? It would split, of course, into a party that could only offer blackmail as a reason to vote for them, and a party that offered solutions to real problems instead.

Interesting considerations, no?

*The "rationale" in sales terms — The "rationale" is the cobbled-together explanation you give your spouse for why you want some god-awful something he's certainly going to oppose and you're determined to buy. And yes, this is how sales pitches work. They teach you about the "rationale," just this way, in courses about writing these pitches. The rationale always comes second in the pitch, after you stimulate the "want," the lizard brain reason for buying in the first place ("chicks will love you" or "fish will jump out of the water into your net"). 


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At 5:24 AM, Anonymous Anonymous said...

Thanks for the compliment.

I do agree with your basic insurrection theory and not just because of the compliment.

The potentially "active" insurrectionists are exploited and manipulated by the GOP congressional caucuses, hate media and, lately, executive candidates like Palin and Trump.

We've already seen violence provoked by Trump. If he continues in the nomination race it is only a matter of time before we see our own brand of krystallnacht atrocities against Hispanics and Muslims, and those mistaken as such. (Discounting, of course, the centuries-long, drawn-out, multi-faceted American krystallnacht against blacks.)

John Puma

At 10:41 AM, Anonymous Anonymous said...

It also isn't possible to discuss the relationship between the constitution and state militias without addressing the founders fear and hatred of standing armies. They saw permanent trained military forces as the primary tool used by oppressors against the people and wanted to make sure the new government they were forming had no such thing.

We're used to the fact that the National Defense Authorization Act is one of congress' routine "must pass" bills but why? The reason is that the constitution explicitly prohibits the funding of any military force for a period of greater than two years. The continental army was promptly disbanded after the revolution and other than a small force to continue the native genocide project was not replaced. The vision of the founders was of a country with nothing but militias controlled by the states but the threat of renewed invasion from Europe meant that the states NEEDED to maintain those militias for the national defense.

Unfortunately in the war of 1812 it was made clear that citizen soldiers were no match for trained professional troops in open field battles (something Washington could have told them as he spend most of the revolution doing his best to avoid any such thing with British forces) Behind fieldworks as in New Orleans or as skirmishes there was a place for militia troops but every time commanders tried to have them stand toe-to-toe and volley for volley with the British the militia broke. The only bright spot for US ground troops in the war was the Niagara campaign fought almost entirely by the regular army forces everyone hated.

After that everyone agreed that a standing army was something that couldn't be avoided, although until after WW2 outside wartime the US maintained only token forces but the constitution still holds the records of the founders fear and the intentional hobbles they created as a result.

At 9:19 AM, Anonymous Anonymous said...

Fine piece and really fine comments. But...

1) what the founders meant is pointless to discuss now... that the supremes have interpreted it and set the precedent (repudiating all prior precedent). This crap is now real.

What should be discussed now is how to undo this court and reassert some sort of sanity in our founding document (constitutional convention?).

2) history is replete with cases where HAVING a standing military FORCES IT TO BE USED, in most cases lest they get restless and overthrow their government.

Also what is NEVER mentioned anywhere by anyone is this:

As long as voters don't demand sanity and their electeds are utterly corrupted by the insanity and the electeds choose the judges, this cannot ever get better until some rogue unitary (as in FDR or Lincoln... not as in cheney or obamanation) changes the meme via executive order or force (which would be tyranny, btw).

When the electorate are morons and/or asleep, a democratic government cannot be very good.


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