Raskin Address on "Democracy, Gun Violence and the 'Insurrectionist' Theory of the Second Amendment" at the Library of Congress, May 8, 2023.
WASHINGTON, DC – Congressman Jamie Raskin (MD-08) delivered the following address on democracy, gun violence and the "insurrectionary" theory of the Second Amendment at the Herb Block Foundation's Awards Ceremony. Congressman Raskin previously objected to the insurrectionary theory of the Second Amendment in a New York Times Guest Essay.
Congressman Raskin. What a pleasure and honor to be with you all for the Herb Block Prize Ceremony. As a local kid who grew up on the Washington Post, I would say there was no one in that newspaper more important to my political and moral upbringing than the great Herb Block, with the possible exception of Carl Bernstein and Bob Woodward, but all three of those iconic figures were intertwined in my mind as patriots of the truth and journalistic critics of official corruption and state propaganda.
And congratulations to the phenomenally creative Ann Telnaes, whose multi-media skewering of autocrats, theocrats, kleptocrats, demagogues, coup-plotters and insurrectionists puts her in the pantheon of great American cartoonists and satirists like Garry Trudeau and Art Spiegelman.
Ann's bracing vision invites us all to act with equal zeal today to defend American democracy against its enemies. This celebratory event has inspired me to define how modern-day insurrectionism threatens the structures of constitutional democracy and the American social contract.
The problem of insurrection has been with us a long time. In the very first Federalist Paper, Hamilton warned of political operators who pandered to the violent passions of the mob in order to usurp power and then destroy the freedoms of the people, political cult leaders who begin as "demagogues" and end as "tyrants."
In his famous Lyceum Address of 1838, delivered after the murder of abolitionist newspaper editor Elijah Lovejoy in Alton, Illinois by a racist mob, Abraham Lincoln denounced mob violence and observed that if division and destruction ever came to America, it wouldn't come from abroad, it would come from within. And when the Confederate rebellion against the Union did come, Lincoln sent a message to Congress on December 3, 1861, in which he described the "insurrection" as "a war upon the first principle of popular government—the rights of the people," specifically the voting rights of the people and their right to choose their own officials.
Insurrectionism is back today. It exploded in America's face on January 6, 2021, when a demagogue-tyrant galvanized a violent mob to block the peaceful transfer of power and install the loser in the presidential election over the winner. More than 1,000 people have been charged with crimes in connection with this attack. More than 600 have been convicted of, or pled guilty to, a wide range of offenses from assaulting federal officers to seditious conspiracy—meaning conspiracy to overthrow the government or put it down by force—to obstructing Congress in its work.
But insurrectionism is back not just as a practice opposed to American constitutional democracy. It is back as a theory of politics and a justification for unlimited firearm availability and an excuse for 24-7 gun violence in our society.
This insurrectionist theory must be confronted and shut down today just as the insurrectionist violence of January 6th was confronted and shut down by the heroic Capitol Police and Metropolitan Police Department, and this is the purpose of my brief talk today.
Insurrectionism dresses itself up in the language of populism and constitutionalism, but it is a strange populism that seeks to overthrow the majority will, as expressed both in the Electoral College and in hard popular numbers, and it is a strange constitutionalism which thoroughly twists and destroys the text and meaning of the Constitution in order to undermine public safety and tear at the foundations of the social contract.
The basic conceptual question is one that every American can understand.
The First Amendment protects the freedom of speech and the "right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
But do peacefully assembled protesters have an additional Second Amendment right to take up arms against the government and proceed to engage in violent rebellion if they believe the government is behaving unfairly or tyrannically?
Astonishingly, most MAGA Republicans, including many Republican Members of the House of Representatives, the U.S. Senate and state legislatures, say yes. Following the long-standing dogma of the National Rifle Association, they have been promoting what I call the "insurrectionary" theory of the Second Amendment and the Constitution, a theory nicely captured by Florida Rep. Matt Gaetz, who says that the Second Amendment "is about maintaining, within the citizenry, the ability to maintain an armed rebellion against the government if that becomes necessary."
This view rejects as far too limited the Supreme Court's 5-4 landmark ruling in Heller v. District of Columbia. In that 2008 decision, the Court found that the Second Amendment protects the right of individual citizens to keep a handgun in the home for purposes of self-defense and the right to possess long-arm rifles for the purposes of hunting and recreation. Heller broke from the traditional understanding that firearm ownership and possession were tethered to actual service in the military or service in what the Second Amendment calls a "well-regulated Militia," what we call today the National Guard.
But the insurrectionary theory sweeps much further than even this. Dissatisfied with the idea that the purposes of the Second Amendment are vindicated when individuals can obtain handguns for self-defense and long guns for hunting but military-style weaponry only when in an actual militia or military service, the insurrectionist philosophy argues that "the people," or to be more precise, any armed segment of the population with a grievance, has a Second Amendment right to attack and overthrow the government.
Colorado Rep. Lauren Boebert puts it this way: the Second Amendment is "a protection against tyrannical government," and it "has nothing to do with hunting, unless you're talking about hunting tyrants, maybe." And these are not abstract concepts in her vernacular. She has described Michigan Governor Gretchen Whitmer as a tyrant, bemoaned the "tyranny" of Colorado Governor Jared Polis, and vehemently defended the insurrectionist philosophy of the Constitution when I challenged her about it in the Oversight Committee.
Of course, if the meaning of the Second Amendment is to empower the people, or an armed subset, to violently overthrow the government, the people must theoretically possess a military arsenal at least equal in quality and quantity to that of the government. The people must never be outgunned. And, indeed, today, there are around 400 million firearms possessed by citizens, an arsenal which dwarfs the number of guns possessed by the federal government or any state or local government, or all of them combined. Furthermore, the insurrectionist thesis requires opposition to any regulation of heavy arms, such as military-style assault weapons like the AR-15, no matter how much the civilian carnage piles up in AR-15 massacres at schools, churches and synagogues and mosques, WalMarts, grocery stores, office buildings and shopping malls. How could the people prepare to overthrow tyrants if they did not possess weapons of lethality equal to those available to the National Guard and the Army?
Advocates of insurrectionism do not dodge this natural implication of their argument. On the contrary, they categorically and proudly oppose assault weapon bans, bump stock bans or indeed any legislation or regulation that would limit the power of the people to acquire military-grade weapons, declaring them all to be violations of the Second Amendment. My colleague and friend Texas Rep. Chip Roy, who is savvy about the Constitution, contends that the Second Amendment is "designed purposefully to empower the people to be able to resist the force of tyranny used against them…." Thus, any person walking into a church or a shopping mall with a loaded AR-15 is just exercising his Second Amendment rights commensurate with his right to repel the firepower of the police and the government.
But I want to show you how the claims of the insurrectionists betray the actual Constitution and twist the Second Amendment into a pretzel of logical absurdity that not only excuses dangerous and fanatical political extremism but blocks our ability to respond to the nightmare of random gun violence in America today.
Let's start with this basic reality check. Of the more than 1,000 criminal indictments brought against January 6th defendants for smashing our windows, assaulting Capitol officers or engaging in "seditious conspiracy," not a single charge has been dismissed on the grounds that the Second Amendment—or any other part of the Constitution—gave them the right to overthrow or take up arms against the government.
And for excellent reason: despite all of the romantic pseudo-revolutionary rhetoric about how the Constitution provides a right to civil insurrection, the actual Constitution, in a half-dozen different places, treats "insurrection" and "rebellion" not as protected rights but as serious and dangerous offenses against our government and our people.
Let's start with Article I, Section 8, Clause 15, which gives Congress the power to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." (emphasis added) This provision presents an unresolvable problem for the insurrectionists. How could Congress have the power to mobilize state Militias to defeat popular insurrections if the people had a constitutional right to appoint themselves the Militia and wage insurrections to defeat the government?
The Republican Guarantee Clause in Article IV, Section 4 further provides that the United States Congress shall guarantee a republican form of government to the people and protect each state's government and people "against Invasion and … domestic violence." So domestic violence is considered a lethal threat to representative government, not a valid constitutional alternative to it.
Both of these provisions became part of the Constitution in response to Shays' Rebellion, an armed uprising in Massachusetts in the 1780s which the Founders emphatically rejected and put down with force. Thus, the "Militia"—which the insurrectionists like to imagine exists as the people's organic power to rebel against the government—is actually the well-organized instrument by which both state and federal governments have suppressed insurrections and opposed domestic political violence.
The Constitution thoroughly rejects the right-wing fantasy that random bands of disgruntled citizens can claim the powers of the institutional "Militia" to commit violent acts against public officials. Article I, Section 8, Clause 16 reserves "to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress" (emphasis added). This intergovernmental cooperation is how we come to have what the Second Amendment calls for in its first clause: "a well regulated Militia."
The Supreme Court has emphasized that this reference to a "well regulated Militia" means "well regulated" by the government. In 1886, the Court upheld an Illinois law banning all private paramilitary groups as a danger to public peace and safety. The Court explained that militia-related activities "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." The American Right's recurring post-Oklahoma City, post-Ruby Ridge, post-Waco image of gun-bearing citizens forming a militia and taking aim at FBI and ATF agents reflects not a plan for exercise of God-given constitutional rights but a dangerous fantasy of criminal violence and political terrorism.
Today, all 50 states forbid private paramilitary organizations, a blanket criminal prohibition which would be impossible if the Second Amendment authorized private militias to take up arms and start "hunting tyrants" whenever they disagree with the results of a popular election or a state government's public health policies.
I will go even further on this point. Far from being some kind of civic duty, raising arms against the government, when it goes far enough, is the definition of treason. Article III, Section 3, Clause 1 provides that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." What is a violent insurrection against Congress if not levying war against the country? Yet the insurrectionists invite us to treat treason as some kind of lurking constitutional right.
There is no ambiguity anywhere in the Constitution about this. After the Civil War, participation in armed rebellion was made explicit grounds for excluding from public office anyone who had sworn an oath to support the Constitution but then betrayed it. Section 3 of the Fourteenth Amendment permanently disqualifies from federal or state office those who engage in "insurrection or rebellion" against the United States, a provision that is again incompatible with the insurrectionist interpretation of the Constitution.
Yet, despite this overwhelming rejection of insurrection, rebellion and treason in the body of the Constitution, the theorists of insurrection still insist that the Second Amendment—in invisible ink—protects the right of the people to overthrow the government by force and to violently resist police orders in the process.
How can this be maintained when the Second Amendment makes no mention of insurrection, rebellion, sedition or secession? The insurrectionists must strike an originalist pose and simply imagine that our Founders wanted the Constitution to give the people the right to violently overthrow the government.
But nowhere did the Framers ever express this belief, which is why none of these self-professed "originalists" offer any authentic evidence for these claims. Nor did the Supreme Court ever hold during the Civil War that the Confederates had a right to try to overthrow the Union to defeat what they saw as government tyranny. On the contrary, the Supreme Court emphasized the government's power under the Supremacy Clause to enforce the law and quell the lawless insurrection.
When I have pointed out the Constitution's comprehensive rejection of rebellious violence, my GOP colleagues fall back on two standard arguments. First, they invoke various quotations from Patrick Henry of "give me liberty or give me death" fame. This is amusing because Patrick Henry was, of course, an anti-Federalist who voted against the Constitution. His slogans tell us next to nothing about the Constitution's meaning. I know the George Mason University Antonin Scalia Law School has a Patrick Henry Professor of Constitutional Law and the Second Amendment funded by the National Rifle Association, but this modern-day NRA romance with Patrick Henry as a guide to constitutional interpretation operates far more in the realm of mythology than it does in coherent constitutional jurisprudence.
The insurrectionary theorists will also invoke the American Revolution itself and point out that the Declaration of Independence posited that, after a "long train of abuses and usurpations," the people have the right to "alter or to abolish" the bonds holding them to a tyrannical government.
This is of course emphatically true, but it is also perfectly irrelevant. The American Revolutionaries asserted their right as a matter of natural law to overthrow a tyrannical government, not their rights under the Magna Carta or British law. The fact that the American colonists asserted a natural law right to break from foreign tyranny is completely different from the claim that they embodied in the Constitution—which became our binding positive law after the Revolution—a right to overthrow the American government.
Our Constitution does not even guarantee the right to engage in nonviolent civil disobedience to make reform—as Dr. Martin Luther King, Bob Moses and John Lewis learned from the inside of many a jail cell. Much less does it guarantee the right to engage in violent civil disobedience to make revolution.
If the American government were to engage in real tyranny, like slaughtering and oppressing the population, the people would undoubtedly have a natural right after such abuses and usurpations to proclaim our cause to the world, cut the ties that bind and engage in the same kind of revolutionary struggle the American colonists did. But it would be meaningless and silly to argue the Constitution itself grants us the right to do that in the face of the entire architecture of the Constitution opposing insurrection, rebellion and domestic violence.
As historian Garry Wills long ago explained: "A people can overthrow a government it considers unjust. But it is absurd to think that it does so by virtue of that unjust government's own authority. The appeal to heaven is an appeal away from the earthly authority of the moment, not to that authority."
In his first inaugural address, President Lincoln stated that, should the people "grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it" (emphasis in Lincoln's original). But the revolutionary right is, by definition, not a constitutional right because, as Lincoln put it, "no government proper ever had a provision in its organic law for its own termination … [,] it being impossible to destroy it except by some action not provided for in the instrument itself."
The phony insurrectionary theory allows the far Right to suggest that the mass destructive violence of January 6 was something other than criminal. But the way we legitimately pursue grievances about elections in America is through the law and the courts. Trump and his followers brought more than 60 lawsuits that were heard and meticulously rejected by courts all over the country. They should have taken these losses as proof that no one was buying their Big Lie and gone home.
Or if they really believed that the courts were stacked against them—even though Trump's claims failed with at least eight judges he himself nominated to the bench, then the kind of nonviolent civil disobedience Dr. King practiced was surely open as an option. After all, unlike Trump, the Civil Rights Movement did face biased judges in huge parts of the country who ignored the facts of segregation and racial violence while betraying the constitutional purposes of Equal Protection and Due Process. But that kind of direct nonviolent action requires sustained collective nonviolent discipline, an appeal to the truth and a spirit of sacrifice and love rather than violent hatred of democracy and your fellow citizens. Non-violent and conscientious civil disobedience to demand equal rights has a pretty good track record of success while bloody insurrection to stage a coup has a miserable record of failure.
Many of my GOP colleagues have taken to describing the January 6th defendants as "political prisoners." But being convicted for smashing a police officer over the head with a Confederate battle flag to storm the Capitol or conspiring to block the peaceful transfer of power and install the loser as president does not make you a "political prisoner," like Andrei Sakharov or Alexei Navalny or Nelson Mandela, people who are imprisoned for standing up for human rights and democracy against authoritarian or totalitarian regimes. It makes you a dangerous criminal and enemy of constitutional democracy. I was thrilled to see what federal Judge Amit Mehta had to say, upon sentencing insurrectionist rioter Peter Schwartz, who violently assaulted several police officers, to fourteen years in prison. "You are not a political prisoner, Mr. Schwartz," he told the insurrectionist. "You are not Alexei Navalny."
Yet, Donald Trump repeatedly dangles and promises "pardons, full pardons" for all of the January 6 defendants—the violent assailants, the seditious conspiracists and everyone who tried to overthrow the 2020 election. And Trump says he'd throw in an apology too. He also recently predicted that the upshot of any criminal indictment he faces will be "death and destruction," further extending the violent chaos he wants to inject into normal political and legal processes. You can see the nearly clairvoyant wisdom of the Framers of the Fourteenth Amendment, who insisted that future public office be forbidden to officeholders who would dare to foment insurrection against our government.
All the rhetoric of insurrection is turning more dangerous in our hair-trigger culture of fast-and-loose gun violence. In last year's election, Martin Hyde, a GOP candidate for Congress in Florida, uploaded a video to YouTube in which he reportedly wished that the FBI agents who arrived at Donald Trump's Mar-a-Lago home with a search warrant had come to his house. "I wish they'd turn up at my home 'cause they'd have gone home in a body bag," Hyde said.
Luis Miguel, a Republican candidate for the Florida legislature, advocated that all Americans be allowed to shoot federal law enforcement officers executing legal search warrants: "Under my plan, all Floridians will have permission to shoot FBI, IRS, ATF and all other feds on sight," he tweeted.
But, threats to law enforcement aside, the fraudulent constitutional philosophy of insurrectionism is already exacting a brutal toll on the American people and our social contract by blockading reasonable and perfectly constitutional gun safety measures. The whole purpose of the social contract—whether you're reading Thomas Hobbes or John Locke—is to make ourselves safer than we would be in a lawless state of nature, which Hobbes described as a state of war— "solitary, poor, nasty, brutish, and short." And yet our insurrectionist caucus has brought gruesome episodes of high-tech military-style violence into daily life across the country. In 2023, we have had 128 days and 202 mass shootings against our people, adults and children alike. When the insurrectionist caucus tells us that the day of a massacre is too early to discuss policy change, they are telling us it is always too early to discuss policy change because every day is a day of massacre.
The insurrectionary theorists seek to normalize the rampant gun violence which makes us an absolute outlier among industrialized nations even though there is so much effective policy change we can make that is both constitutional and heavily favored by the public. The Supreme Court has never struck down universal firearm background checks, outright bans on the sale and possession of military-assault weapons or red-flag laws, and yet my GOP colleagues will immediately describe them all as violations of the Second Amendment because they believe that the purpose of the Second Amendment is to keep the public armed to the teeth so we can overthrow our own government.
With gun violence out of control in the country, propaganda and disinformation still permeating parts of the media, and routine political attacks leveled against the FBI and other legitimate law enforcement entities, we must defend our democracy, our Constitution and our people with everything we have. The great American majority, which favors not only the rule of law but universal criminal background checks and a ban on the sale of military-style assault weapons to civilians, must make it plain to insurrectionary apologists in Congress and all the extremist groups how our Constitution and our society work. There is no lawful right to overthrow our government, attack our police or obstruct the counting of votes in America. The alleged rights of insurrection and sedition do not exist in the Second Amendment or anywhere else in our Constitution. We are governed here by our Constitution and the nonviolent social contract arising under it.
It is time to reassert the primacy of the real Constitution as a searchlight and agent of democratic progress against the dark nihilism and insurrectionism of our times.