Every time there's a guns-related thread, it seems, someone will post something to the effect that the purpose, or a purpose, of the Second Amendment is to allow the people to have guns to "keep the government honest," or to enable the people to resist a tyrannical government with armed force if necessary, or words to that effect. This is sometimes called the "insurrectionary theory" of the 2nd Amendment.
This is nonsense. That notion certainly was in the air at the time the Bill of Rights was adopted, but it never found its way into the Constitution. The original text of the Constitution expressly authorizes the POTUS to command all militia, and insurrection is a thing neither protected nor tolerated -- it is, rather, a circumstance where the right of habeas corpus may be suspended (though whether by the POTUS or Congress is left unclear; Lincoln asserted the power and got away with it, at any rate). Nothing in the 2nd Amendment changes any of that one iota; if it were meant to, it would say so explicitly. The "well regulated militia" clearly is conceived as an arm of government (whether state or federal), not as a countervailing popular force against government (whether state or federal). The Declaration of Independence was a revolutionary document -- revolutions are illegal by definition, so it had to appeal to natural-law concepts. But the Constitution was a legal document, the fundamental law of a new government intended to last forever, and, as we all know, not a suicide pact. As for The Federalist, I know of no paper that so much as mentions the right to bear arms (or revolt). (IIRC, Publius did not even approve of the notion of adding a BoR to the Constitution.)
An argument could be made that the purpose of the 2nd Amendment is to allow the states to arm their own militias to be prepared to resist the federal government if necessary; but that cannot be squared with the Supremacy Clause or anything else in the Constitution, and I would say the test case of Grant v. Lee (decision rendered at Appomattox Courthouse, April 9, 1865) renders that line of argument a nullity.
A a stronger argument could be made that the purpose of the 2nd Amendment is to allow the slave states to arm their own militias to be prepared to resist a slave revolt. Less said of that the better.
The only reason there's anything in the BoR about the militia at all is because many Americans at the time had a fear (irrational in hindsight, but rational based on their recent experiences with the Redcoats) of a large standing army as a potential threat to domestic liberty. The "well regulated militia" clause of the 2nd Amendment amounts to, not an actual constitutional requirement, but a general statement of intent, that American military defense will be primarily militia-based. It didn't work out that way -- every war we've fought since independence was fought mainly by the regular federal armed forces; and there's nothing unconstitutional about that, and nothing unwise about it in military-strategic terms, and, apart from the expense, we have never had any real reason to regret it. American federal armed forces never in our history have threatened a coup or questioned their subordination to civil government; and the only time the government ever has used them as a domestic instrument of rule was in the very rare and exceptional case of Reconstruction, where it was absolutely necessary.
This is nonsense. That notion certainly was in the air at the time the Bill of Rights was adopted, but it never found its way into the Constitution. The original text of the Constitution expressly authorizes the POTUS to command all militia, and insurrection is a thing neither protected nor tolerated -- it is, rather, a circumstance where the right of habeas corpus may be suspended (though whether by the POTUS or Congress is left unclear; Lincoln asserted the power and got away with it, at any rate). Nothing in the 2nd Amendment changes any of that one iota; if it were meant to, it would say so explicitly. The "well regulated militia" clearly is conceived as an arm of government (whether state or federal), not as a countervailing popular force against government (whether state or federal). The Declaration of Independence was a revolutionary document -- revolutions are illegal by definition, so it had to appeal to natural-law concepts. But the Constitution was a legal document, the fundamental law of a new government intended to last forever, and, as we all know, not a suicide pact. As for The Federalist, I know of no paper that so much as mentions the right to bear arms (or revolt). (IIRC, Publius did not even approve of the notion of adding a BoR to the Constitution.)
An argument could be made that the purpose of the 2nd Amendment is to allow the states to arm their own militias to be prepared to resist the federal government if necessary; but that cannot be squared with the Supremacy Clause or anything else in the Constitution, and I would say the test case of Grant v. Lee (decision rendered at Appomattox Courthouse, April 9, 1865) renders that line of argument a nullity.
A a stronger argument could be made that the purpose of the 2nd Amendment is to allow the slave states to arm their own militias to be prepared to resist a slave revolt. Less said of that the better.
The only reason there's anything in the BoR about the militia at all is because many Americans at the time had a fear (irrational in hindsight, but rational based on their recent experiences with the Redcoats) of a large standing army as a potential threat to domestic liberty. The "well regulated militia" clause of the 2nd Amendment amounts to, not an actual constitutional requirement, but a general statement of intent, that American military defense will be primarily militia-based. It didn't work out that way -- every war we've fought since independence was fought mainly by the regular federal armed forces; and there's nothing unconstitutional about that, and nothing unwise about it in military-strategic terms, and, apart from the expense, we have never had any real reason to regret it. American federal armed forces never in our history have threatened a coup or questioned their subordination to civil government; and the only time the government ever has used them as a domestic instrument of rule was in the very rare and exceptional case of Reconstruction, where it was absolutely necessary.
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