It comes, via an AP piece (Okla. tea parties and lawmakers envision militia), from Oklahoma State Senator Randy Brogdon, (R-Owasso) who is also a Republican candidate for governor (and is from the Tea Party faction of the GOP):

The founding fathers "were not referring to a turkey shoot or a quail hunt. They really weren’t even talking about us having the ability to protect ourselves against each other," Brogdon said. "The Second Amendment deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government."

I know a lot of people, especially those who consider themselves hardcore gun rights advocates, who think that the ultimate argument for the right to keep and bear arms is to give the people the ability to fight tyranny from their own government, indeed, I have written on this before:

• Fantasies about Guns and Protests (Rubio’s Tweet and Some Thoughts on Overthrowing Governments)
• Gun Fantasies and Overthrowing Governments Continued

Now, while I understand the notion that an armed populace could more easily resist authoritarian governments (although as the posts above note, I find them ultimately to be fantastical), the notion that the Second Amendment to the US Constitution “deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government” is ridiculous beyond belief.

Brogdon is saying that one of the earliest acts of the Congress under the new Constitution was to propose an amendment that assumed that  the states might have to  take up arms against the federal government.  Considering everything that the political class of the day did to unify the states, this claim is absurd on its face and demonstrates a gross misunderstanding of our history and our constitution.

I would point Brogdon to Federalist XXIX (written by Alexander Hamilton) who notes that the militia would be used in cases on internal insurrection and invasion.   Note that what he meant was as a defense against internal insurrection, not to engage in it (which is what using a state-level militia against the federal government would be).

Beyond the specifics above, I would recommend reading the entire AP story linked above.  While on the one hand, I think that the story reflects the views of a minority, it is still a disturbing set of proposals.  Once we start linking political grievances to violence, even in a hypothetical sense, we start down a very dark and dangerous road.  And I find it remarkable that some people think that reporting stories like this is just an attempt to smear the Tea Party movement instead of taking seriously that candidates for office are saying things like those quoted above.

9 Responses to “Misguided Constitutional Interpretation of the Day”

1. Chris Says:
   April 13th, 2024 at 10:10 am

   But wouldn’t they just be suppressed and put under control just like any other radical group? (i.e., Ku Klux Klan, Black Panthers, etc.)

2. Steven L. Taylor Says:
   April 13th, 2024 at 10:28 am

   Chris,

   Thanks for the comment–however I am little unclear as to what you are asking.

3. Chris Says:
   April 13th, 2024 at 10:40 am

   Sorry Steven. I guess I was just commenting on other organizations who thrive on anxiety and claim these wack-a-doodles might actually have a chance of inciting some real and damaging violence, i.e. a second Civil War. Like you said, “Once we start linking political grievances to violence, even in a hypothetical sense, we start down a very dark and dangerous road.” I was just thinking out loud in that the federal government has a good history of putting an end to groups before they get too extreme.

4. Drew Says:
   April 13th, 2024 at 1:32 pm

   The point of having state-run militias was to render a separate federal army unnecessary. The Anti-Federalists, drawing from lessons in classical history, believed that permanent military forces were one of the chief dangers to the stability of a republic. The Federalists shared their compatriots’ distrust of such institutions, but advocated a more moderate position. The various state militias fell into disuse by around 1820, and today’s National Guard is not the descendant of those early militias, either organically or legally. Thus, the Second Amendment is not advocating insurrection, but rather its object is to prevent tyranny at the federal level, by acknowledging the individual’s right to keep such weapons as will allow the citizenry to be protected without recourse to a federal army. So the role of the Second Amendment in the protection of a citizen’s rights against a tyrannical federal government is indirect. The Second Amendment as stated does not assume the existence of such militias, and so the right to keep and bear said arms is not dependent on a militia-concept, but rather the other way around. It should also be noted that the Second Amendment implicitly protects the ownership of the types of weapons that are suitable for military use, otherwise the notion of a citizen militia performing the same kinds of functions as army would be absurd. Therefore, the Second Amendment does not explicitly protect the right to own hunting equipment or to carry pistols, concealed or otherwise. But it does protect the right to own standard-issue rifles of contemporary military quality. In my view, the majority of pundits on both sides of this debate get it wrong.

5. Irotama Says:
   April 13th, 2024 at 3:55 pm

   The various explanations and justifications for the decision in Miranda v. Arizona are examined and founding wanting. A proposed solution to the problem of providing a coherent concept of compelled self-incrimination is offered.

6. Max Lybbert Says:
   April 13th, 2024 at 4:38 pm

   the notion that the Second Amendment to the US Constitution “deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government” is ridiculous beyond belief.

   I guess that depends on exactly how the Second Amendment deals with such a right. Clearly insurrection is illegal, and has been illegal since the beginning. Shays’ Rebellion come to mind, although that predated the Constitution and the Bill of Rights. So if the argument is that the Second Amendment legalizes insurrection, then that is ridiculous beyond belief.

   However, if the argument is simply that preventing the outlawing of guns makes it much more likely that people have guns to (illegally) resist tyranny, that doesn’t seem ridiculous beyond belief to me. The Supreme Court’s recent decision in Heller ( http://www.supremecourt.gov/opinions/07pdf/07-290.pdf ), which Barack Obama made sure to endorse as far as the Second Amendment guarantees an individual right ( http://campaignspot.nationalreview.com/post/?q=Mjk5Y2Y2MWY1MDJjYmFkMzM5NDEyMWFiNTAxMDczOTA= ) states “There are many reasons why the militia was thought to be ‘necessary to the security of a free state.’ … First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. … Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny (page 24).

   At the very least, the belief was that the risk of insurrection did not override the risk of an unarmed populace.

   In a similar note, Federalist XXIX states:

   By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. … But so far from viewing the matter in the same light with those who object to select corps as dangerous … I should hold … in substance, the following discourse:

   … 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.

   I cannot see any way that an army the government forms could be “formidable to the liberties of the people” other than through direct attacks on those people. Likewise, I cannot see any way that a militia (the “large body of citizens … who stand ready to defend their own rights and those of their fellow-citizens”) would protect the populace from an overbearing army other than by military engagements. And I cannot see any way that the militia is “the best possible security against [a standing army]” other than by force. I’ve always understood this part of Federalist XXIX to talk about (illegal) insurrection by people who had been trained through militia service. I’ve also understood this part of Federalist XXIX to approve such an insurrection because the alternative would be much worse.

   Later in Federalist XXIX, we read:

   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?

   Clearly such a movement by the militia would be illegal.

   So, yes, Federalist XXIX talks about using the militia to suppress rebellions and insurrection. And, yes, insurrection can be (and is) illegal even if the Second Amendment gives an individual right to keep and bear arms. But it also seems that Alexander Hamilton and the Founding Fathers expected weapons (illegally) to be used to resist tyranny. That’s hardly a surprise, as the Revolution was fresh in everybody’s mind. Then again, so was Shays’ Rebellion.

7. walt moffett Says:
   April 13th, 2024 at 11:10 pm

   “.. linking political grievances to violence ..” Isn’t the threat of that, what lead to the signing of a document in Runnymede in 1215?

   Agree though, that such linkage is dangerous in a functioning democracy such as ours.

8. Ratoe Says:
   April 14th, 2024 at 7:28 am

   I thought the Second Amendment was put in there so slave owners could keep their slaves in check.

9. Steven L. Taylor Says:
   April 24th, 2024 at 12:00 pm

   @Max,

   Your comment got lost in the moderation queue (my apologies).

   My basic response is the following line from the story: “The Second Amendment deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government.”

   That is the part that I find patently ridiculous and is the crux of the whole story.