No, Ted Cruz, the 2nd Amendment doesn’t protect your right to rebellion

Yesterday, TalkingPointsMemo reported that Texas Senator Ted Cruz sent an email to supporters urging them to send him money to make him president so that he could, as president, protect their right to violently overthrow the president.

The 2nd Amendment to the Constitution isn’t for just protecting hunting rights, and it’s not only to safeguard your right to target practice. It is a Constitutional right to protect your children, your family, your home, our lives, and to serve as the ultimate check against governmental tyranny — for the protection of liberty

Cruz’s assertion was so absurd that Lindsey Graham — sporting an A rating from the NRA — not-so-subtlely compared Cruz to Jefferson Davis, pointing out that as far as armed rebellions go, “we tried that once in South Carolina. I wouldn’t go down that road again.”

The email is a reprisal of a meme normally reserved for NRA forums and first year government seminars at Liberty University, trotted out by gun activists once they’ve run out of arguments for why they so desperately need to keep an arsenal of high-caliber weapons stockpiled in their toolshed.

How historically nonsensical and utterly baseless Cruz’s claim is shouldn’t bear repeating, but if a US senator and declared presidential candidate is taking the argument seriously, it does. Here are just a few reasons why it makes absolutely no sense to say that the Constitution protects your right to revolt:

The Second Amendment states, in full, that “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.”

“Being necessary to the security of a free state” doesn’t mean “being necessary to the citizens’ ability to shoot government officials if they don’t like paying taxes.” When the Constitution was ratified, the United States was an extremely weak country. Having just come off the heels of the Revolutionary War and the disorganized disaster that was the Articles of Confederation, the country had little standing army to speak of and not a whole lot of money available to raise one. With Spain occupying Florida and a number of potentially unfriendly great powers — most notably Great Britain — running trade routes nearby, the country desperately needed to arm itself.

So the Founders deputized the citizens, guaranteeing their right to keep arms for the purpose of organizing into militias that could fight off invaders, as they had done during the Revolutionary War.

As long as you actually read the first 13 of the 27 words in the Amendment, this should make perfect sense. The most definitive answer to this comes from linguist Dennis Baron, who has apparently read the Constitution a bit more carefully than Ted “Nullify the Supreme Court” Cruz.

As he argued in an amicus brief filed for the DC vs. Heller case, the Second Amendment was meant to be read according to the grammar used at the time in which it was written. And in the 18th Century, if you opened your sentence (like this one) with a clause and a comma, everything after that clause pertained only to that clause. So “the right of the people to keep and bear arms, shall not be infringed” refers only to “a well regulated militia,” and probably only to the extent that a well regulated militia is an essential component of our national security. If we were to rewrite the Second Amendment in 21st Century English, it would read something like this:

A well regulated militia is essential to the security of a free state. Therefore, the right to keep and bear arms for the purposes of maintaining a well regulated militia shall not be infringed.

So, no, Ted Cruz, the Constitution doesn’t say you can keep your gun in case one too many people sign up for affordable health insurance and you decide that that’s the last straw. It says you can have a gun if the United States Army falls apart and we need to rely on citizen brigades of militiamen to stave off a British re-invasion. That isn’t going to happen for the next ever, so you don’t get to keep your semi-auto just because it makes you feel like more of a man.

But let’s say I’m wrong, and the Constitution does give citizens the right to fire on the police. Why are there any gun restrictions at all?

America’s standing army in 1787 wasn’t exactly intimidating. By contrast, America’s standing army in 2015 is, and I’m sure Ted Cruz would agree, not to be messed with. An AR-15 doesn’t hold a candle to your local police force; starting beef with the full firepower of the American military with nothing more sophisticated than a semi-auto is like bringing a ham sandwich to a gun fight. If citizens really did rise up and revolt with the guns currently available, they would lose and lose badly.

But under Ted Cruz’s interpretation of the Second Amendment, this shouldn’t be a problem. As far as he’s concerned, he’s got the right to the same firepower the military has.

It’s the logical conclusion of his argument. If you really can ignore the whole first half of the Second Amendment, and the Constitution does really guarantee citizens the right to keep and bear arms in case there’s a need for an armed insurrection, then why not Uzis? Why not RPGs? Why not frag grenades and anti-tank missiles and M24 Sniper Weapons Systems (the M24 is a sniper rifle so powerful that apparently the military doesn’t think calling it a “rifle” does it justice)? Hell, why not your own Black Hawk attack helicopter? I’m sure Sikorsky Aircraft, the company that makes them, would sell you one if you could afford it.

As soon as you say that any gun new gun restrictions are off the table because Americans have a universal, comprehensive right to bear arms, you’re also saying that all existing gun restrictions are off the table because Americans have a universal, comprehensive right to bear arms. There is no gray area as to which arms are and aren’t allowed. Combine that with an anti-government itch, and why wouldn’t you be filibustering bills over your God-given Constitutional right to play with your Call of Duty weapons in real life?

Dennis Barron didn’t get his way in DC vs. Heller. The court ruled that citizens have a right to a personal handgun for self defense at home. That may lead to more gun deaths than it saves, but I can at least understand the thought process behind the practical — if not Constitutional — argument for that right. The world has changed a lot since 1787. We don’t rely on militias for national security, and your over the counter handgun can do a lot more damage than the best muzzle loader ever could.

There are gray areas to be ironed out with respect to who should be allowed to own what kind of gun. Those are debates worth having. But we can start by all agreeing that, as an American, we aren’t going to give citizens the right, or the ability, to overthrow America.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+.

Here is the debate from the Federalist Papers on how a 2nd amendment militia was needed to prevent a tyranny powered by a standing federal army.

The debate from the Federalist Papers:

In The Federalist #8, Alexander Hamilton states the fear of having a standing army.

quote:
The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it. Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority.

The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard.

A militia of the people, or Posse Comitatus would be a counter-balance to a standing army. In The Federalist #29, Hamilton states the need for a militia to be regulated by the States, not the Federal government:

quote:
THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert; an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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."

Hamilton then argues that the formation of the militia by itself should be enough to prevent a standing army from forming.

quote:
Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.

Hamilton now argues that it is impractical to expect a militia to act as a standing army.

quote:
``The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

Hamilton then reasons that if there should be a need for a standing army, there should at least also be a disciplined militia to offset the power of the army.

quote:
"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Finally, Hamilton supposes that a militia under the control of the States would resist the temptation of a Federal authority using it for it's own purposes.

quote:
There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.
A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?

If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.

In Federalist 46, James Madison writes about how the states would fight back against an encroaching federal government. Note midway the reference to militias as a counterforce against tyranny.

I'm reposting a deconstruction of mine of Federalist 46 that I posted in October 2013.

It appears that Federalist 46 has been obsoleted by the 17th amendment.

Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow.

I don't think is the case anymore. Federal handouts have made people more beholden to the federal government. In fact, liberals are at war with state governments. Take Gay Marriage as an example. They pit one state against another, taking an advantageous result in one state to the federal level to force it upon the rest.

If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.

People have become more partial to the federal government, but not because of better administration. They're being bought by taxpayer monies approved by a Congress that no longer feels beholden to their respective states. The states have much to fear, because of federal encroachment of federal power.

It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States.

The 17th amendment has upended this assumption. The roles have been reversed.

And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations?

Because of the 17th amendment and the need for raising campaign funds, Senators are now more interested in the "collective welfare of their particular" party, not their state, because it is the party that drives much of their campaign financing. All of the liberal agenda in Washington was driven by party and national special interest, not state issues. States are pawns, a means to a national agenda end.

Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.

We saw this play out in Arizona over their immigration policy. Holder sued Arizona to prevent them from enforcing state immigration laws that the federal laws already permitted them to do.

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

We saw this play out with the recent federal government shutdown and retaliation of closing national parks in all the states. The militarization of civil police are becoming much more intimidating to the average citizen of a state who is considering civil unrest.

But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.

This is exactly what the Article V movement is trying to accomplish. Rally the states around the idea of taking back control of the federal government through exercising their Article V power to propose the amendments of change that Congress is unwilling to.

But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

We would have to see if this plays out. Would the whole of the people align with the states in support of an Article V convention, or would they align with the Congress and the President to maintain the status quo? There's the rub.

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

This reads like a Nostradamus prophecy. It is exactly what has happened over the last decade, most recently accelerated.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence... Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

Here is a gem for the 2nd Amendment people. It is clear from this passage that the 2nd amendment was specifically intended to prevent a tyrannical government from forming, for fear of an armed populace.

And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

The argument here is that the people will rise up in arms against a federal government that encroaches beyonds its limited, enumerated powers. And knowing that, it would be madness for the federal government to even try to engage with force, knowing that death and destruction that would naturally follow. Given the stockpiling of hollow-point bullets, and military anti-mine personnel carriers now being distributed across the United States, I think that our government is actually planning to do something just like this.

On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

What I see is a discussion of brinksmanship and inevitable civil war instigated by a federal government that refuses to back down to states that push back on encroachment.
I see signs that our current federal government is planning for exactly such a crisis, and is actively trying to incite it.
The proponents of an Article V convention is an attempt to avoid a direct head-to-head conflict with the federal government by side-stepping them and taking a parallel path to making Constitutional change.

-PJ

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