Reflections on Insurrections

Posted in: Civil Rights

Now that the first round of indictments in the Trump-Russia collusion investigation has been issued, Americans find themselves again wondering just how far Donald Trump will go to stay in power. If the noose begins to tighten, what will he do? What will his supporters do?

At least as early as Trump’s first troubling decision to encourage violence against protesters at his rallies, and certainly since his call to “Second Amendment people” to rise up and fight against a future President Hillary Clinton’s imaginary effort to confiscate firearms, Trump’s presence on the scene has intensified the threat of deadly violence in American politics.

Trump, through the very end of last year’s campaign, played coy with the idea that he might not “accept” the results of the election. In a column this past spring, in which I imagined a world where Trump lost the Electoral vote as well as the popular vote, I wrote that “[a]rmed standoffs and brawls in Washington and other major cities led to mass arrests” prior to Clinton’s inauguration.

In our stranger-than-fiction reality, the question has always been just how far Trump might be willing to go in order to hold onto power. But even if Trump himself were not willing to incite violence on his way out the door, others might do so on their own.

Would there be isolated acts of terrorism by self-styled patriots, or perhaps worse? That is indeed possible, but if people do resort to violence to keep Trump in power, they would be engaging in a citizen uprising that might well bring an end to America’s constitutional democracy rather than protecting our freedoms.

The Second Amendment is (Obviously) Not Absolute

In a recent pair of columns, the first on Dorf on Law and the other here on Verdict, I noted that the Second Amendment is—contrary to the assumptions of both conservatives and liberals—simply not relevant to the current gun debate. By that I meant that, like all constitutional provisions, the Second Amendment lies in the background as an outer limit on what can be done, just as (for example) the Fifth and Sixteenth amendments place limits on the “takings” and taxation powers, respectively.

Just as a safety requirement for a consumer good is generally not a taking and a decision to raise the top marginal income tax rate does not violate the Sixteenth Amendment, even the most aggressive gun control efforts that are currently on offer at the federal level come nowhere close to violating any reasonable interpretation of the Second Amendment (including under the Supreme Court’s decision in District of Columbia v. Heller, which I discuss below).

My point was that, although I certainly understand why partisans would be quick to wrap themselves in the Constitution whenever they can, the rest of us should not go along with the scam. When, for example, a politician waves a gun around and says, “I believe in the Second Amendment,” people like me can respond, “So do we, but it simply does not mean what you think it means.”

The political debate, then, should be about the wisdom of various proposals, all of which are well within the Constitution’s constraints. Reasonable people can reach different conclusions based on evidence and logic, but these are policy disputes, not line-drawing exercises in constitutional jurisprudence.

In the process of making my arguments, I noted that even the Supreme Court’s ill-reasoned majority decision in Heller did not provide succor to those who think that every gun regulation is a violation of the Second Amendment. Justice Scalia’s opinion states: “Like most rights, the right secured by the Second Amendment is not unlimited.” He and his four colleagues in the majority then offer an incomplete list of limits that easily pass constitutional muster.

But does that not mean that the government will exploit those exceptions? No, it means that the large amount of space provided by the Constitution will, as it always does, allow the democratic process to play out. Even though Scalia specifically notes that bans on carrying concealed weapons have always been considered well within the limits of the Second Amendment, more than a dozen states allow concealed carrying of weapons without a permit (and other states allow it with a permit).

Again, one need not support gun control to find all of this unremarkable. The relevant question is what the people will decide through democratic means. The courts are there to enforce the Constitution, but they obviously need to act only when the Constitution has been violated.

A “People’s Insurrection”?

I also noted that the Supreme Court has never accepted the “citizen uprising theory” of the Second Amendment. That theory, also known as the insurrectionist view, holds that the founders included the gun-related amendment in the Bill of Rights to prevent the federal government from running roughshod over the people.

Again, the Supreme Court has not credited that theory. In an important column several years ago, Michael Dorf noted that there actually was “a pretty good historical case to be made for the insurrectionist theory of the Second Amendment”—BUT he then made clear that that case had been made irrelevant by subsequent developments (including the law in 1903 that placed state militias under joint federal/state control).

As Dorf also noted, Scalia’s majority opinion in Heller definitively rejects the insurrectionist view (which Dorf accurately described as preposterous), with Scalia writing that “it may be true that no amount of small arms could be useful against modern-day bombers and tanks.” Moreover, Scalia was not merely making a reluctant nod to reality, instead noting that “our standing army is the pride of our Nation.”

One of the mixed blessings of writing columns about controversial political issues is the feedback from readers and responses from commentators. Usually, the negative responses to my columns include putting the word “professor” in scare quotes to indicate disdain for the idea that someone as clueless as I am could be taken seriously.

A reader of my most recent Verdict column, after indulging in the standard professor bashing, took issue with the point on which both Scalia and Dorf agree, which is that the insurrectionist view is simply unrealistic. Referring to would-be insurrectionists, I had written: “How they think they would win against the weaponry of the modern military is anyone’s guess.”

The response from my insurrectionist reader was that people like me should not assume that the US armed forces will fight against the insurrectionists. The services draw recruits disproportionately from Trump-friendly precincts, which (my reader insinuated) means that those men and women might choose to fight with the insurrectionists rather than against them.

Let us leave aside for a moment the clear implication that large numbers of our soldiers, sailors, flyers, and Marines would be willing to engage in mutiny and treason. What is the implication of this argument for the Second Amendment? Perhaps more importantly, what would this mean if Donald Trump called on people to violently resist his impeachment (or they chose to do so on their own)?

The Circular Logic of the Insurrectionist View

This version of the insurrectionist argument, then, is that the inferiority of non-military weapons is not a problem for people who might rise up against the government, because they have what amounts to sleeper cells inside the US military. When push comes to shove, we are apparently meant to believe, the military will side with “the Second Amendment people.”

Even if that were true, however, that is still not an argument against gun control. Indeed, it is not even an argument against outright gun bans and confiscations, if such things were to become a political possibility. If the military will turn its weapons on the liberal politicians to prevent them from becoming despotic, then we do not need an armed citizenry to do that job.

There are some rather elaborate scenarios in which one could imagine a schism within the military, with a few units siding with armed insurrectionists (and taking superior weapons with them as they join the rebellion) and fighting against the rest of the US armed forces. Maybe the idea is that groups of citizen-soldiers bearing non-military arms will be able to join together with rebelling soldiers, combining arsenals and recruits in sufficient number to defeat the would-be oppressors.

Again, however, we are talking about a military armed with vastly superior weapons, including Scalia’s “modern-day bombers and tanks.” Those elaborate scenarios, such as the one that I described in the paragraph above, would have to be elaborate indeed for the insurrectionists to have a chance at winning because of the firearms that civilians possess.

And even if one could conceive of a military betrayal that was not large enough to win on its own but could just barely prevail only with the help of armed citizens, that is exactly the kind of scenario that would involve maximum loss of lives. Telling would-be despots that there is the possibility of a mutiny with huge casualties among both military and civilians could certainly suggest quite a different response than, “OK, then I guess we won’t become tyrants.”

All of this discussion up to this point has taken as a given that the people’s elected politicians will, at some point, become so willing to exploit their power that they will have to be stopped by citizen-patriots who are true to the spirit of the Constitution. The leading example of politicians exploiting their power, however, is the parade of horribles that results in people’s guns being confiscated by the government.

In other words, the reason that people need guns (in this view) is to prevent the government from taking their guns.

But the Trump situation raises a different possibility. What if Trump is impeached and convicted, but he refuses to leave office? Will his Secret Service agents remain loyal to their oaths under the Constitution, or will they swear personal loyalty to Trump? If the latter, will units of the military be willing to fight Trump’s loyalists and remove the former president from the White House, by force if necessary?

I have no doubt that there are people serving in the military who would be unhappy if Trump were forced out of office. Even in pro-Trump military communities, however, his popularity was never overwhelming and has fallen off significantly since his election.

These increasingly bizarre scenarios, in any event, are driven not merely by people being for or against Trump. These are stories of violent uprisings, with tens or hundreds of thousands of active military members violating their oaths and being willing to shoot at their former brothers and sisters in arms (and the citizens that they are sworn to protect).

On the other hand, it is certainly much easier to imagine small protests by Trump-loyalists that could lead to real violence. As I wrote in my most recent Verdict column, however, that possibility cannot become a reason for Congress to refuse to do its duty under the Impeachment Clause.

In the end, if the insurrectionist view necessarily assumes that the US military will en masse desert their posts and refuse to do their duty, then that is neither an argument against gun control nor a reason to allow the possibility of pro-Trump violence to dictate political choices.

And there would be a crushing irony. The people who claim that the Second Amendment can be justified as protecting the right of the people to resist tyranny and despotism would be engaging in violent rebellion in defense of Donald Trump, the man who—arguably more than any other politician in US history—threatens to become a tyrannical despot. It would be funny if it was not so scary.