Protection from Tyranny?

The Second Amendment as a Means to Protect the State, Not Overthrow It

In the wake of mass shootings like those that occurred at Newtown, Aurora, and now the D.C. Naval Yard, the pro-gun lobby reminds us that the 2nd Amendment was created as a safeguard so that ordinary citizens can protect themselves from a tyrannical government. This rationale, however, is based on myth and ignores the basic facts surrounding the creation of the Constitution and the Bill of Rights in the first place. Although many of the founders waxed poetic about gun ownership, the fact remains that this Constitution of ours was created with incidents of armed insurrection as bookends. It was an angry group of farmers with guns threatening the government of Massachusetts in 1786 that spurned the writing of the Constitution and a similar incident in 1791 reaffirmed the new government’s power in suppressing a mob of angry people with guns. In both cases, the angry groups in question were asserting their rights in trying to overthrow or force a change with what they saw as a tyrannical government. Therefore, the 2nd Amendment was not created to protect peoples’ rights to overthrow the government, but instead was created to protect the government from those fearful elements of society at the time: farmers with guns in the West, Indians with guns on the frontier and slaves with guns in the south. A “well-regulated” militia was more for protecting the government from “rabble” than it was in giving citizens the right to protect themselves from tyranny.

For the first decade as a free nation, the United States was governed under the Articles of Confederation. The national government was merely a one-branch system: a unicameral Congress with very little power. There was no national executive nor was there a national court. Under this arrangement, the states reigned supreme and the national government lacked any sort of coercive power. Congress could pass laws but did not have the power to enforce laws. When disagreements arose among states, the national government lacked a mechanism to help solve those disagreements. States going to war with each other was not a far-fetched notion. (1)

Enter into this environment was Daniel Shays, a veteran of the Revolutionary War. He and other farmers in western Massachusetts grabbed their guns in an attempt to not only force a shutdown of the state’s court system, but also procure weapons and lead a general uprising against the Massachusetts state government, which they saw as corrupt and not too different from the government of Britain they had fought years earlier. At issue were the debt the farmers had been experiencing and the high taxes they were forced to pay. Scores of farmers, many of them veterans of the Revolution, were at the mercy of a system that jailed people for failure to pay debt. The prison in Worcester County, for example, housed 104 prisoners in 1785. Ninety-four of them were farmers who lost their livelihoods due to debt; many were veterans of the Revolution. (2)

Fed up with what they saw as unfair treatment, farmers began resisting in 1786. They used their muskets and tactics from the Revolution to prevent foreclosure on farms throughout Western Massachusetts. They raided debtors’ prisons and released men who had been incarcerated due to the debt issue. The following year, Daniel Shays lead some 1500 armed and angry farmers against a state arsenal in Springfield, Massachusetts. By this time, Shays’ forces were known as the “Regulators.” A skirmish erupted at the armory and several people were killed and wounded. Support for Shays and his cause spread throughout New England, especially among the western regions of the state where opinion of the new state government was at its lowest.

Despite the pleas for help from the Massachusetts state government, the national government under the Articles of Confederation had no power to intervene. The rebellion needed to be put down by the state militia. Governor James Bowdoin raised a militia of 4,000 men, paid for by wealthy Boston merchants, and pursued the militants until most were captured or had fled to another states. The weapons of the insurgents were confiscated and they were denied the right to vote or hold office. A couple were executed for treason.

Benjamin Franklin believed that the rebellion represented a very serious danger to the new nation. In a congratulatory letter to the governor he applauded the “wise and vigorous measures for suppression of that dangerous insurrection.” (3) To prevent such dangerous insurrections from occurring in the future, calls went out across the states to address the shortcomings of the Articles of Confederation. The result: the Philadelphia Convention of 1787.

There, during the hot summer, delegates from the thirteen states decided to scrap the Articles of Confederation for a new, stronger central government. The power of this government would be divided among three branches, the most important of which was a legislature made up of an upper house and a lower house. By stating that among the purposes of the new government was to “insure domestic tranquility” and “provide for the common defence,” the framers were very aware of the danger of armed insurrection demonstrated by Shays’ Rebellion and created a means by which a federal government could respond to such situations.

The Bill of Rights was not added to the Constitution until 1791, after the Constitution had already been ratified and George Washington was already serving as president. Many did not see the need for a bill of rights, as most state constitutions already had extensive rights enumerations. Nonetheless, several prominent anti-federalists, such as Thomas Jefferson and John Jay, pushed the issue and the ratification of the Constitution was made real by a promise of a Bill of Rights.

James Madison based the original amendments that would make up the Bill of Rights on the Virginia Declaration of Rights. Like all state constitutions at the time, the Virginia Declaration extolled the need for state militias and the right to bear arms: “a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.” (4) Most state constitutions included provisions related to militias and arms. This is not surprising as they were written during the period of the Revolution itself; Virginia’s was adopted in 1776. In addition, most states had prohibitions against standing armies.

State militias are at the heart of the Second Amendment. Not having a standing army, it was the state militia that would be called upon to defend the borders of the nation from invasion or, more likely at the time, to suppress armed rebellion in the states. When suggestions for the federal bill of rights were solicited from the states, New Hampshire went so far as to suggest an amendment that declared “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” (5)

Therefore, a well-regulated militia was the first line of defense against threats to the state and was viewed as such. In Madison’s original wording of the Second Amendment, he wrote “the right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” (6)

The “free country” clause in this version riled some people in Virginia, however. Patrick Henry and George Mason argued that under the new Constitution, only Congress had the right to declare war, but a well-regulated militia outside of the control of Congress was necessary for the protection of the states—-not from invasion of foreign powers, but from domestic insurgency. They feared a Congress that would dismantle the militia system. For Patrick Henry and George Mason, the biggest threat to the South was armed slaves and the militias were essential to ensure protection from slave rebellions. “If the country be invaded,” Henry stated to the Virginia convention to ratify the Constitution in 1788, “a state may go to war, but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress.”(7) To most Southerners, this was unacceptable; the state militias were needed to protect from the possibility of slave insurrections.

Throughout the South, state militias organized “slave patrols,” which were, in the simplest of forms, groups of armed white men patrolling areas, using displays of force to keep the slave population under control. Fear and intimidation were primary means by which slavery was protected. In the words of one historian, the slave system in the South amounted to nothing more than a “gigantic police system.”(8) In Florida, for example, a law was passed in 1833 that gave these white patrols broad power to give suspicious slaves a “moderate whipping” and, in the confiscation of arms, “break open doors, gates or windows.”(9) Indeed, slave rebellions were put down with ruthless force by state militias: the Stono Rebellion in 1739 and Nat Turner’s Rebellion in 1831, for example. After John Brown attacked a federal arsenal in Harper’s Ferry, Virginia, in 1859 for the purpose of sparking a slave insurrection, Southern states organized new militias for fear of other attempts at arming slaves. These militias would form the core of the Confederate army.

This fear, which was a major component of the Southern narrative even prior to independence, has been argued as the reason for the rewording of the 2nd Amendment. (10) Perhaps Madison changed the “free country” clause to “free state” in order to protect the state militias from Congressional control, thereby preserving the right of the state to protect itself against slave rebellions and keep the entire slave system under tight control.

But slave rebellions weren’t the only threat to state governments. Most state constitutions referenced protection and defense as additional reasons for the right to bear arms. On the frontier, arms were necessary due to the volatile nature of Indian relations. However, as the country moved from colonies to states, the governments became less concerned with Indian attacks than with an armed and angry white population in the West. Rebellions by western-led factions were surprisingly common. Bacon’s Rebellion in 1676 led to the burning of Jamestown and Shay’s Rebellion in 1786 led to calls for a new national government. In 1794, another rebellion of western farmers threatened the new nation under the Constitution. This time, the rebellion was larger and covered more states.

As part of an economic plan devised by the Secretary of the Treasury, Alexander Hamilton, the new government of the United States authorized an excise tax on Whiskey in 1791. Anger and outrage spread throughout the states in regard to this tax, most notably in western regions where whiskey was a major component of the economy for farmers. Farmers blocked the collection of the tax and tarred and feathered tax collectors. To them, the tax on whiskey represented an unfair tax without representation and justified a rebellion, just like back in 1775. They used the same rhetoric from the Revolution, declaring that the new government under the Constitution was tyrannical. The uprising was most severe in Pennsylvania, where some 7000 men planned a march on Pittsburg. Under the “Act for Calling Forth the Militia” passed by Congress in 1792, which gave the United States broad powers in suppressing rebellion and enacting martial law, Washington ordered the militia to put down the rebellion. (11) Unlike the situation merely four years earlier, this time the national government had the means to put down insurrections. In a tremendous display of force led by Washington himself, the rebellion in Pennsylvania melted away. The militia then rounded up the insurgents and forcibly disarmed them. The Whiskey Rebellion proved that the new government under the Constitution could mobilize and put down a threat from armed civilians.

Shay’s Rebellion and the Whiskey Rebellion provide a context for the 2nd Amendment and these two domestic instances of violence and insurrection frame the creation of the Constitution and the Bill of Rights. The 2nd Amendment gave legitimacy to the state militia system; a system that was used increasingly to protect state power. Through the 19th century, the militia spent its time not just defending the frontier, but suppressing rebellions and patrolling slave territory. Part of their mission became to disarm those populations that represented the greatest threats to the state. Laws passed throughout the South made it a crime to arm a slave; possession of arms by slaves or even free blacks were strictly forbidden and punished accordingly. In 1792, Congress passed the Uniform Militia Act that prohibited blacks from even serving in the state militias. (12) State militias in New Jersey were given “broad power” to take the guns away from various people and “armed assemblies.”(13) Contrary to what many think today, the regulations of firearms enacted in the decades after the ratification of the 2nd Amendment were “robust” and “extensive.” (14) State legislatures passed laws dictating who could own firearms and under what circumstances. Tough prohibitions against the carrying of concealed weapons were passed in such states as Ohio, Tennessee, Virginia and Georgia. (15) Many states even passed laws requiring loyalty oaths for gun ownership and for the taking of “gun censuses.” (16)

In actuality, the 2nd Amendment has provided cover for state militias who were often employed throughout our history to disarm and control other Americans. In 1799, the militia in Pennsylvania put down another insurrection, this time led by a western farmer named John Fries. In 1838, the militia in Georgia went house to house in Cherokee territory, removing guns and ammunition in order to forcibly remove them from their land as per the removal law signed by Andrew Jackson years earlier. This was done even though the Supreme Court ruled the action unconstitutional. Although militias were employed to enforce new reconstruction laws in the South following the Civil War, after Reconstruction state militias and groups like the KKK became indistinguishable as they endeavored to keep the black population in the South disarmed and in a near perpetual state of intimidation and fear. Throughout the Gilded Age, militias were used to harass workers and break strikes. In 1914, the Colorado state militia was used to violently suppress a strike by mine workers. In what became known as the Ludlow Massacre, seventeen people were killed by the militia, including eleven children.(17)

In 1997, Charlton Heston, then Vice-President of the National Rifle Association, referred to the 2nd Amendment as “America’s First Freedom” because it “is the right that protects all the others.”(18) Shortly after the Sandy Hook Elementary School shooting in December of 2012, a video went viral through social media. It featured the Congressional testimony of Suzanna Gratia Hupp from 1995 during hearings over the Public Safety and Recreational Firearms Use Protection Act. A victim of gun violence and a supporter of the 2nd Amendment, she told the committee that the original purpose of the 2nd Amendment “is to protect ourselves from all of you guys up there.” (19) Such statements have merely contributed to this myth that the purpose of the 2nd Amendment has been to give citizens the ability to protect against a tyrannical government.

Contemporary gun rights advocates often link the Declaration of Independence, which extols the right of the people to “alter or abolish” a tyrannical government, to the Constitution, which establishes a government. The Constitution is not a call to arms or a propaganda piece aimed at converting hearts and minds, as was the Declaration of Independence. The Constitution establishes a political structure designed to protect liberties through a stable existence of laws and regulations. In the decades after the ratification of both the Constitution and the Bill of Rights, federal and state governments used this new power to not only regulate firearms, but also radically control who had access to firearms. Although quotations abound from our founders regarding the need to have arms for protection from tyranny, those statements were often made during the Revolution in order to justify revolutionary actions. Those same founders often expressed outrage when, years later, some in society took up arms against the new government under the Constitution. After the Whiskey Rebellion, for example, James Madison, the primary author of the Constitution and the 2nd Amendment said of the “odious” rebellion: “The result of the insurrection ought to be a lesson to every part of the Union against disobedience to the laws.” (20)

The history of the 2nd Amendment is complex and often contradictory. It is dangerous, however, to romanticize the ideas regarding the purpose of the 2nd Amendment. When the 2nd Amendment is romanticized, it takes on a purpose never realized by history. The 2nd Amendment is very much tied to a militia system that, for all intent and purposes, no longer exists. Although some states still maintain a separate defense force under control of the governor, militias as they existed were replaced by the National Guard in 1903. Does this render the 2nd Amendment obsolete? The right to bear arms is still guaranteed in most state constitutions. In addition, the District of Columbia v. Heller decision of 2008 made it clear that the right to own firearms is guaranteed, even if unconnected to militia service. (21) This does not negate, however, the power of the government to regulate firearms. The government regularly passed restrictions on firearms throughout the first century of existence and state militias were at the forefront throughout our history of not only enforcing those regulations, but also of protecting state power. The 2nd Amendment gave the states and the federal government the authority to put down rebellions and disarm those populations it feared the most. As it played out in history, the 2nd Amendment became the means to protect state power, not a means by which the people could dispose of it.

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(1) In 1787, a dispute between New York and New Jersey and Connecticut almost broke out into open warfare. The issue was the fees charged by New York for use of the port, which greatly affected both New Jersey and Connecticut. See John Fiske , The Critical Period of American History, 1783-1789, (Boston, 1897) p. 146-148. (http://books.google.com/books?id=sQMOAAAAIAAJ&pg=PA146)

(2) Steven Laurence Danver, Revolts, Protests, Demonstrations, and Rebellions in American History: An Encyclopedia, Volume 1 (Santa Barbara: ABC-CLIO, 2011) p. 209. (http://books.google.com/books?id=A1C4W2IVHcMC&pg=PA209)

(3) Mark Skousen, ed. The Complete Autobiography of Benjamin Franklin, Volume 2: 1757-1790 ( Washington: Regnery Publishing, 2007)p. 357 (http://books.google.com/books?id=v6HoALofr_8C&pg=PA357)

(4) Frederic Jesup Stimson, The Law of the Federal and State Constitutions of the United States: With an Historical Study of Their Principles, a Chronological Table of English Social Legislation, and a Comparative Digest of the Constitutions of the Forty-Six States (The Lawbook Exchange, 2005) p. 82. (http://books.google.com/books?id=veDMy4aUwIgC&pg=PA82)

(5) Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Westport, Connecticut: Greenwood Press, 1989) p. 76. (http://books.google.com/books?id=Fyn9B9zwAjEC&pg=PA76)

(6) Carl T. Bogus, “The Hidden History of the Second Amendment” (U.C. Davis Law Review, Winter 1998) p. 366. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465114)

(7) Ibid, p. 349.

(8) Ibid, p. 335.

(9) Acts of the Legislative Council of the Territory of Florida, passed at the Eleventh Session, Commencing January the Seventh and Ending February the Seventeenth, 1833, p. 27-30. (http://ufdc.ufl.edu/UF00073402/00011/28j)

(10) see Carl T. Bogus; and Saul Cornell and Nathan DeDino

(11) Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution(Oxford University Press, 1986) p. 191. (http://books.google.com/books?id=Hym2U_4C5fYC&pg=PA191)

(12) Henry C. Dethloff and Gerald E. Shenk, Citizen and Soldier: A Sourcebook on Military Service and National Defense from the Colonial Era to the Present (New York: Routledge, 2011) p. 29 (http://books.google.com/books?id=4XQeHUTMlqsC&pg=PA29)

(13) Saul Cornell and Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control (73 Fordham Law Review, 2004) p. 500 (http://ir.lawnet.fordham.edu/flr/vol73/iss2/3)

(14) Ibid, p. 505

(15) Ibid. p 513-514.

(16) Robert J. Spitzer, The Right to Bear Arms: Rights and Liberties Under the Law (Santa Barbara: 2001) p. 19 (http://books.google.com/books?id=kYKrIwceQ1UC&pg=PA19)

(17) Scott Martell, Blood Passion: The Ludlow Massacre and Class War in the American West (Rutgers University Press, 207) p. 2 (http://books.google.com/books?id=sH5oOK3MKqUC&pg=PA2)

(18) Charlton Heston, “Help Me Save the Second Amendment” Field and Stream Magazine, October 1997, p. 107. (http://books.google.com/books?id=x6HMEU2LfTMC&pg=PA107)

(19) Public Safety and Recreational Firearms Use Protection Act : hearing before the Subcommittee on Crime and Criminal Justice of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, second session, on H.R. 3527 … April 25, 1995 (http://archive.org/details/publicsafetyrecr00unit) Video of Suzanna Gratia Hupp’s testimony can be found on Youtube. (http://www.youtube.com/watch?v=WznSA4EU1Gk).

(20) Edmund Sears Morgan, The Genuine Article: A Historian Looks at Early America (New York: W.W. Norton & Company, 2004), p. 202.

(http://books.google.com/books?id=dnE-cJVS0NIC&pg=PA202)

(21) United States Supreme Court, DISTRICT OF COLUMBIA ET AL. v. HELLER, June 26, 2008 (http://www.supremecourt.gov/opinions/07pdf/07-290.pdf)