Gun Rights, Tyranny & Rebellion
John Locke, The American Constitution & The Right To Bear Arms
By Professor Robert J. Spitzer (SUNY Cortland)
July 14, 2016 Picture: Jim Urquhart/REUTERS
This article is part of The Critique’s July/August 2016 Issue “No Silver Bullet: Contending With The Complexity of The Gun Violence Debate In The United States”
“We need the firepower,” in Durbin’s telling, “and the ability to protect ourselves from our government if they knock on our doors and we need to fight back.” Durbin asked LaPierre if he agreed with this point of view. LaPierre responded: “I think without any doubt, if you look at why our founding fathers put it [the Second Amendment] there, they had lived under the tyranny of King George and they wanted to make sure that these free people in this new country would never be subjugated again and have to live under tyranny.” With that, Durbin turned to a police chief also testifying and said, “Well, Chief Johnson, you’ve heard it. The belief of NRA is the Second Amendment has to give American citizens the firepower to fight back against you, against our government.”[i]
The idea that the Second Amendment somehow protects or countenances a kind of reserved right of citizens to rise up against the government and apply violence using guns (the “arms” referenced in the amendment) should the American government somehow become tyrannical is a deeply entrenched belief held by some in the gun rights community.
Obviously, it raises a host of questions, aside from whether the Second Amendment was designed to serve this purpose. Among them: how could civilians possess a “right” under our system of laws to use violence against our government? How would the imposition of “tyranny” be determined, and who would be entitled to make that determination? Against whom, exactly, would citizens use lethal force? Local police? State government leaders? Congress? The President? Judges? The Army? What would be the prospect that civilians would have any kind of success against a government with a large standing military force, and fifty state police forces? Would such a rebellion or insurrection have any chance of improving whatever political circumstances existed in the country at such a moment? And even if citizens never actually used force against the government or some part of it, would the mere prospect that people might do such a thing somehow have a beneficial effect on the government’s behavior, as some who support this idea claim?
These claims are by no means limited to the margins of the national gun debate.[ii] For example, the 2010 Republican nominee for the U.S. Senate from Nevada, Sharron Angle, said during the campaign, “our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. . . .if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies. . . .”[iii]
A different indication of the tenacity of this idea among some in the public is a 2013 nationwide poll that found 29 percent of Americans agreeing with the proposition that “in the next few years, an armed revolution might be necessary in order to protect our liberties.”[iv]
Even the Supreme Court, in its 2008 decision U.S. v. Heller, three times referenced in passing armed and organized men as possessing some kind of (unspecified) ability to resist, or serve as a safeguard against, tyranny.[v]
Before getting to the question of whether gun-owning citizens possess such a right, there is a touchstone that is invoked by many to argue that the American system does indeed encompass a right of citizens to use violence against their government. It is found in the writings of the British political philosopher John Locke.
Locke and Rebellion
In his Two Treatises of Government, Locke spurned absolute monarchies in favor of a constitutional monarchy – a system of government that retained limited monarchical rule, but where elected parliaments exercised “the supreme power of the commonwealth.”[vi] Locke argued broadly for the rejection of absolute monarchy as a form of governance, for the elevation of representative governance, and for the recognition of the people as the ultimate or supreme source of power.[vii]
Locke’s writings exerted important influence over American thinkers and founders, most notably over the Declaration of Independence and Thomas Jefferson, who was its primary author. The Declaration, issued in 1776, sought to explain and justify to the world the American rebellion from Britain. Drawing on Locke’s “contract theory” of governance, whereby the government (to quote from the Declaration) derives its “just Powers from the consent of the people,” who are entitled to “alter or abolish” the government if it deprives people of their “unalienable rights”: “Life, Liberty, and the pursuit of Happiness.”
Since the British monarch had established an “absolute Despotism” and “an absolute Tyranny over these States” by virtue of the monarch’s failure to seek consent from the governed, the colonies were justified in declaring and establishing their independence. Little wonder, given America’s precarious experiment in autonomy, that it would seize on Locke’s writings. But what was the nature of this right of rebellion about which Locke wrote?
First and foremost, according to Locke, ultimate sovereignty rests with the people. But the exercise of this sovereignty when mobilized for rebellion against the government was not to occur arbitrarily, lightly, casually, or in preference to democratic and lawful mechanisms of consent. And it was certainly not to be exercised over mere disagreements about policy.[viii]
Rather, “force is to be opposed to nothing but to unjust and unlawful force”[ix] exercised by the government, meaning more specifically that the government attempts to “take away and destroy the property of the people,” “reduce them to slavery under arbitrary power,” and “put themselves into a state of war with the people.”[x]
Any effort at rebellion that fails to meet this stiff test “draws on himself a just condemnation both from God and man.”[xi] Not only must the government have both violated the law and wreaked violence on its people, but a majority of the people must agree that such action is warranted.[xii]
To further circumscribe the act of rebellion, and to underscore the pre-eminence of the rule of law and civil governance, Locke says that anyone who enters in to rebellion without adequate cause “is guilty of the greatest crime I think man is capable of. . . .he who does it is justly to be esteemed the common enemy and pest of mankind, and is to be treated accordingly.”[xiii] The abandonment of law by the government, its exercise of arbitrary or absolute power, and the government’s application of extra-legal violence against the people – these are Locke’s prerequisites for rebellion. Finally, the act of rebellion itself was based on an “appeal to heaven,”[xiv] not the laws of the state.
As mentioned, Locke’s writings exercised important influence over many of the country’s founders. But let us also note that the government Locke knew and wrote about was Britain – a constitutional monarchy composed of two branches, only one of which was chosen by the people. He wrote a century before the writing of the modern American constitution, a document constructed after our establishment of a separate and independent nation, and which rejected even a limited monarch, preferring an elected executive who served a fixed term. And the nation we formed was the United States of America, not the United States of John Locke. Then as now, the word of Locke did not equal the word of (American) law.
The Constitution of 1787 makes perfectly clear how rebellion is to be treated. It gives Congress the powers “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” in Article I, Section 8; to suspend habeas corpus “in Cases of Rebellion or Invasion” in Section 9; and to protect individual states “against domestic Violence” if requested to do so by a state legislature or governor in Article IV, Section 4.
Further, the Constitution defines treason in Article III, Section 3, this way: “Treason against the United States, shall consist only in levying War against them” (the United States was originally referred to in the plural). In other words, the Constitution specifically and explicitly gives the national government the power to suppress by force anything even vaguely resembling rebellion.
Rebellion is by constitutional definition an act of treason against the United States. The militias mentioned in the document, and in the Second Amendment, are thus to be used to suppress, not cause, rebellion or insurrection. These powers were further detailed and expanded in the Calling Forth Act of 1792,[xv] which gave the president broad powers to use state militias to enforce both state and federal laws in instances where the law is ignored or in cases of open insurrection.
Alexander Hamilton addressed this very question of insurrection in one of the Federalist Papers. In Paper 28, Hamilton noted that “seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body. . . .Should such emergencies at any time happen,” he continued, “there could be no remedy but force.”
As long as an insurrection was relatively small-scale or limited, “the militia of the residue would be adequate to its suppression.” If a larger-scale insurrection occurred, an armed national government would need to intervene. “Who would not prefer that possibility,” Hamilton argued on behalf of a national military, “to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?”[xvi]
The “scourge” of rebellion is, of course, carried out against the government, which means against that government’s constitution as well—including the Bill of Rights and the Second Amendment. One cannot carry out a “right” of rebellion against the government and at the same time claim protections within it.
This fact was well understood by the country’s founders (and by Locke). In 1794, for example, the government, through its militias and the leadership of President George Washington, moved to suppress the Whiskey Rebellion,[xvii] an uprising in western Pennsylvania that was denounced by Federalists and Anti-Federalists alike.
As the historian Saul Cornell noted, in the 1790s there was “widespread agreement that the example of the American Revolution did not support the rebels’ actions” because Americans at the start of the Revolution “did not enjoy the benefits of representative government,” whereas those who fomented the Whiskey Rebellion “were represented under the Constitution.”[xviii]
The following century, at the height of the Civil War (a conflict fought to defeat any notion of lawful or rightful rebellion against the government), Abraham Lincoln expressed a version of this sentiment this way: “among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost.”[xix]
Any who argue for a Lockean right of rebellion must, as Locke wrote, seek solace outside of the laws of the country, including the Constitution and the Bill of Rights (and the Second Amendment). This leads to a related, and central question: who has the right to use force within this, or any, country? Not only can the government respond with force to rebellion, it must do so.
Does The Government Have A Monopoly Over The Use Of Force?
Writing in the early 1900s, German sociologist and political theorist Max Weber famously argued that: “The claim of the modern state to monopolize the use of force is as essential to it as its character of compulsory jurisdiction and of continuous organization.” Yet this does not mean that citizens are stripped of any recourse to justifiable violence, as Weber also noted that “the use of force is regarded as legitimate only so far as it is either permitted by the state or prescribed by it.”[xx] Thus, for example, a citizen acting for personal self-defense acts as an individual, but is nevertheless accountable to the state’s judgment under the law.
“Any who argue for a Lockean right of rebellion must, as Locke wrote, seek solace outside of the laws of the country, including the Constitution and the Bill of Rights (and the Second Amendment)”
Various gun rights activists have challenged Weber’s idea about state power. Legal writer David C. Williams, for example, dismisses Weber, and the militia-based view of the Second Amendment, saying that the latter “rests on a Weberian myth: with the sociologist Max Weber (although usually without referring to him) it holds that one of the defining characteristics of the state is its monopoly on the legitimate use of violence.”[xxi]
Another legal writer pegs Weber’s analysis as “authoritarian” and “the core of the gun-control movement,”[xxii] and yet another as “the product of a specifically German tradition of the (strong) state rather than of a strikingly different American political tradition that is fundamentally mistrustful of state power. . . .”[xxiii]
Yet none of these assertions sustains scrutiny. Weber hardly gets a mention in the vast writing on the militia-based analysis of the Second Amendment, and it is based on evidence that predates Weber. Weber was neither an authoritarian nor an apologist for authoritarianism, any more than his analysis was a justification for it, or for German authoritarianism whether under the Kaiser or Hitler (Weber died in 1920).
In fact, Weber’s analysis represents part of a long train of writing in political theory making this argument about the nature of state power – it has nothing in particular to do with Germany – and indeed Weber’s analysis is correct.
Two features emerge in Weber’s writing: that Weber’s analysis is empirical (an analysis of what is true), and that it represents his own formulation arising from past theorists. “Every state is founded on force,” Weber notes. “If no social institutions existed which knew the use of violence, then the concept of ‘state’ would be eliminated, and a condition would emerge that could be designated as ‘anarchy’. . . .” Weber here is referencing the Hobbesian state of nature, and making the empirical observation that the very existence of the modern nation-state rests upon state-exercised force.
Referencing state authority to exercise violence or force, under circumstances established by the laws of the state and as the fountainhead of politics, Weber continues: “The state is considered the sole source of the ‘right’ to use violence. Hence, ‘politics’ for us means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.”[xxiv]
It is because of this state monopoly that non-violent politics can occur in democratic nations. Obviously, in authoritarian nations, the government uses its monopoly of force to suppress the liberties and freedoms of the people, beginning with those who would speak out, or attempt to act peacefully, against the ruling regime.[xxv]
Democratic nations, by definition, maintain constitutions, laws, and political practices that impose limits on governmental power to retain democratic processes, rights, and outcomes. Thanks to this arrangement, democratic governments retain a monopoly over the use of force without degenerating into autocracy.
Were it not for the state’s monopoly, politics would quickly devolve into violence – precisely what occurs when regimes in the modern world are shaken or toppled by violence without stable regime replacement or succession, and when weak regimes lack the ability to quell violence and mayhem within their countries. Weber is hardly the first political thinker to argue that governments have a monopoly over the use of force.[xxvi]
The idea that the government in a democratic society does, and must, have a monopoly over the use of force is not limited to political philosophers, or those outside of America. While serving as a college professor at Wesleyan University, future president Woodrow Wilson wrote in 1889 about this very subject. “The essential characteristic of all government, whatever its form, is authority. . . .the authority of governors, [meaning those who govern] directly or indirectly, rests in all cases ultimately on force. Government, in its last analysis, is organized force.”
Wilson was careful to note that this principle applied to all governments, whether democratic or authoritarian, but that the “better governments of our day” are those that rest “upon the free consent of the governed.”[xxvii] None of this means that citizens may not have recourse to the legitimate use of violence under some circumstances, as is most clearly illustrated in a case of justifiable self-defense. But such instances exist not in contravention of government authority or law, but as granted by it.
As clear an expression of this view as any is found in a U.S. Supreme Court case from 1886, Presser v. Illinois. In 1879, Herman Presser was the leader of a paramilitary group called Lehr und Wehr Verein, which translates roughly as, “Education and Defense Association.” Presser and his group of 400 paraded through the streets of Chicago, outfitted and armed with rifles, but without having first obtained a license from the state governor.
Under state law, it was illegal for organizations not recognized or licensed by the state to “associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state.”[xxviii] Presser was found guilty, and fined $10. He appealed his conviction, partly on Second Amendment grounds.
The court upheld his conviction, explaining that states had not only a right but an obligation to maintain military forces and militias as a “rightful resource for maintaining the public security.”[xxix] By the same token, the states (as well as the national government) had every right and power to regulate, or bar, private citizens from organizing as private military units. As the court explained:
“The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers”.[xxx]
The court and state law were concerned not merely with the trappings of military behavior (uniforms, firearms, military-style rank and order) under the control of private citizens – after all, military surplus uniforms and guns were and are legally available to civilians. No, the root concern here is that, having adopted military accoutrements and organization, such private groups might then be emboldened to behave with the authority of an actual military force attached to the government.
In other words, the government does and must possess a monopoly over the all-important ability to apply force of arms for public security and the public good. The court then explained exactly why such a power must be reserved solely to government, and not left to private individuals (unless the government otherwise expressly granted such powers):
It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power . . . to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States.
The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine [looting].[xxxi]
In other words, a circumstance where the use of force is somehow shared with those not a part of the government to, say, countenance what some participants might consider a justifiable or necessary rebellion may be, to others, “sedition and treason,” or “armed mobs bent on riot and rapine.” Such a determination must belong to the government and its legal and democratic processes, not to private individuals for their sole or autonomous determination.
A society can have no expectation of domestic peace when the state’s monopoly over the use of force is no longer a monopoly. Again, this is no invitation to authoritarianism; dozens of democratic nations around the world, including our own, have managed to maintain their democracies by striking a judicious balance between state power, on the one hand, and individual rights and liberties, on the other.
Admittedly, America leans more to the side of individual rights than other, similar nations, and Americans maintain a long tradition of suspicion of government power, compared with citizens in other democratic nations. Yet it is easy to exaggerate American suspicion of government.
In a 27-nation international survey conducted in 2013 of citizen attitudes toward their own governments (both democratic and authoritarian), it turns out that Americans have less trust in their own government compared with citizens of Canada and Sweden, but trust their government more compared with citizens in the United Kingdom, Australia, Germany, and France.[xxxii]
“The root concern here is that, having adopted military accoutrements and organization, such private groups might then be emboldened to behave with the authority of an actual military force attached to the government”.
If any kind of answer to the question of citizen use of violence against its government is to be found here, it surely must begin with Locke (and not the selectively edited Locke that merely plucks a phrase or two from his writings), encompass the Constitution’s formulation of lawful peaceful expression of political opposition with the responsibility of the government to suppress armed insurrections, to the Presser court’s judgment that an armed assemblage cannot be countenanced in our system. The one thing any contemplation of rebellion against the American government cannot pretend to is any notion that our Constitution, or laws, countenance armed rebellion. They do not.
Footnotes & References
[i] “Senate Judiciary Committee Hearing on Gun Violence,” January 30, 2013, at http://articles.washingtonpost.com/2013-01-30/politics/36628109_1_gun-violence-gabby-giffords-senator-grassley
[ii] See Joshua Horwitz and Casey Anderson, Guns, Democracy, and the Insurrectionist Idea (Ann Arbor, MI: University of Michigan Press, 2009). Wayne LaPierre did not come to this recently. In 1994, he wrote that “the right to arms is to enable citizens to resist a military takeover of our government” and “overthrowing tyranny.” Guns, Crime, and Freedom (Washington, D.C.: Regnery, 1994), 19. Writing in 2002 with James Jay Baker, he said: “Our right to keep and bear arms. . . .clearly meant for our possession of arms to be an insurance policy to make sure that the government respects our liberty.” Shooting Straight (Washington, D.C.: Regnery, 2002), 109. Glenn Beck, Control: Exposing the Truth About Guns (New York: Threshold Editions, 2013), 54-55. See also David B. Kopel, The Truth About Gun Control (New York: Encounter Books, 2013).
[iii] Greg Sargent, “Sharron Angle Floated Possibility of Armed Insurrection,” Washington Post, June 15, 2010, at http://voices.washingtonpost.com/plum-line/2010/06/sharron_angle_floated_possibil.html.
[iv] The poll was a survey of 863 registered voters nationwide conducted in late April 2013. “Beliefs about Sandy Hook Cover-up, Coming Revolution Underlie Divide on Gun Control,” Fairleigh Dickinson University’s Public Mind, May 1, 2013, at http://www.fdu.edu/newspubs/publicmind/2013/guncontrol/final.pdf
[v] D.C. v. Heller, 554 U.S. 570 (2008), at 598, 600, and 613. The court was not declaring this to be a right under the Second Amendment; it was a passing comment referred to as “dicta.”
[vi] John Locke, Of Civil Government Second Treatise (Chicago: Henry Regnery, 1955), 109.
[vii] William Ebenstein, Great Political Thinkers (New York: Holt, Rinehart and Winston, 1969), 393.
[viii] Robert A. Goldwin, “John Locke,” History of Political Philosophy, Leo Strauss and Joseph Cropsey, eds. (Chicago: Rand McNally, 1972), 480.
[ix] Locke, Of Civil Government Second Treatise, 170.
[x] Locke, Of Civil Government Second Treatise, 184.
[xi] Locke, Of Civil Government Second Treatise, 170-71.
[xii] Locke, Of Civil Government Second Treatise, 142.
[xiii] Locke, Of Civil Government Second Treatise, 193.
[xiv] Locke, Of Civil Government Second Treatise, 141-42.
[xv] 1 U.S. Stat. 264. See also 10 U.S. Code 331–334.
[xvi] Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), 178-79.
[xvii] Thomas P. Slaughter, The Whiskey Rebellion (New York: Oxford University Press, 1988).
[xviii] Saul Cornell, Whose Right to Bear Arms Did the Second Amendment Protect? (Boston: Bedford/St. Martin’s, 2000), 19–20.
[xix] Letter from Lincoln to James C. Conkling, August 26, 1863, in Roy P. Basler, ed., Abraham Lincoln: His Speeches and Writings (Cleveland, OH: The World Publishing Co., 1946), 723. In his message to Congress on July 4, 1861, Lincoln said, “when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves at succeeding elections.” James D. Richardson, Messages and Papers of the Presidents, 13 vols. (Washington, D.C.: Bureau of National Literature, 1913), V, 3231.
[xx] Talcott Parsons, ed., Max Weber: The Theory of Social and Economic Organization (New York: Macmillan, 1947), 156.
[xxi] David C. Williams, The Mythic Meanings of the Second Amendment (New Haven, CT: Yale University Press, 2003), 5.
[xxii] Kopel, The Truth About Gun Control, 35-36.
[xxiii] Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal 99(December 1989): 650.
[xxiv] H.H. Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), 78.
[xxv] See Kenneth Minogue, Politics (New York: Oxford University Press, 1995), 3.
[xxvi] See William Ebenstein, Great Political Thinkers (New York: Holt, Rinehart and Winston, 1969), 365-70, 394-99; Minogue, Politics, 38-42; Ebenstein notes that Aristotle framed the question of state authority as “moral sovereignty,” reflecting his more organic view of governing in the context of Greek city-states (69). By the seventeenth century, according to Ebenstein, the state was “sharply distinguished from all other organizations because it alone possesses sovereignty, or the highest authority in a politically organized community, and the legal monopoly of enforcing such authority in its territory.” (68-69) Ebenstein also notes that Aristotle framed the question of state authority as “moral sovereignty,” reflecting his more organic view of governing in the context of Greek city-states (69). By the seventeenth century, according to Ebenstein, the state was “sharply distinguished from all other organizations because it alone possesses sovereignty, or the highest authority in a politically organized community, and the legal monopoly of enforcing such authority in its territory.” (68-69) Laurence Berns, “Thomas Hobbes,” in History of Political Philosophy, Leo Strauss and Joseph Cropsey, eds. (Chicago: Rand McNally, 1972), 390. The writings of French political philosopher Jean Bodin (1530-1596) illustratively echo, and long predate, Weber’s construct. In his Six Books on the State, Bodin offered a detailed formulation of modern state authority, including its monopoly over the use of force. See Ebenstein, 354-55.
[xxvii] Arthur S. Link, ed., The Papers of Woodrow Wilson, 69 vols. (Princeton, NJ: Princeton University Press, 1969), 6: 253-54. These quotes are from Wilson’s book, The State, first published in 1889. Portions of the book are reprinted in Link. Wilson was a prolific scholar before entering politics, and a founder of modern political science.
[xxviii] Presser v. Illinois, 116 U.S. 252 (1886), at 253. In Presser, a unanimous court ruled against Presser’s claim to a Second Amendment right, saying that, under the amendment, the states could not “prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.” (at 265) That is, the right to bear arms pertained to citizens’ ability and “duty” to serve the government as members of the government organized and regulated militias referenced in the first half of the sentence composing the Second Amendment. For more on the case, see Robert J. Spitzer, Gun Control: a Documentary and Reference Guide (Westport, CT: Greenwood Press, 2009), 82-89.
[xxix] Presser v. Illinois, at 265.
[xxx] Presser v. Illinois, at 267.
[xxxi] Presser v. Illinois, at 267-68.
[xxxii] Edelman Trust Barometer 2013 Annual Global Study, 10, at http://edelmaneditions.com/wp-content/uploads/2013/01/EMBARGOED-2013-Edelman-Trust-Barometer-Global-Deck_FINAL.pdf,