The VICE Guide to the 2016 Election

Trump’s ‘Second Amendment People’ Already Think They Have the Right to Fight the Government with Guns

A constitutional law professor explains the origins of "insurrectionist theory," and its role in the modern gun rights movement.

by Olivia Li
Aug 15 2016, 10:15pm

Donald Trump speaks at the University of North Carolina on Tuesday, Aug. 9, 2016. Photo by Chuck Liddy/Raleigh News & Observer/TNS via Getty Images

This post originally appeared on The Trace.

At a campaign event in North Carolina last week, Donald Trump set off another media storm by suggesting that Second Amendment activists could take action if Hillary Clinton were elected and began appointing liberal, anti-gun judges.

"Hillary wants to abolish, essentially abolish, the Second Amendment," he told the audience. "By the way, and if she gets to pick—if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don't know."

The insinuation seemed to be that gun activists could take up arms against a Clinton administration, or possibly the judiciary. That the Republican presidential nominee would suggest such armed revolt, even in jest, caused an immediate outcry from Democrats and some Republicans.

What Trump ultimately intended with his comment, as with so many of his remarks, is unclear. But there is a contingent of gun rights activists that believes they do have the right to act if their liberties are infringed. According to this argument, known as "insurrectionist theory," the Second Amendment gives citizens the right to rebel against a tyrannical government—a right that is rooted in the very foundation of the republic.

To find out more, The Trace spoke with Darrell Miller, a professor of constitutional law and a Second Amendment scholar at Duke Law School, about the origin of this theory, and its role in the modern gun rights movement.

What did you think of Donald Trump's comment about the Second Amendment?
I don't think he's actually asking for the assassination of Hillary Clinton. He probably thought he was joking. At the same time, he doesn't seem to understand that when you have the power of the people and the power of the government, you can't be cavalier.

Does the Second Amendment support the right to rebel against the government?
One theory of the Second Amendment does, and it's called the insurrectionist theory. We see it discussed briefly in District of Columbia v. Heller, the Supreme Court case that established an individual right to bear arms under the Second Amendment. Heller says that when the people are trained in arms, they're better able to resist tyranny.* Normally, the insurrectionist theory is discussed in terms of something way in the future. One judge called it a "doomsday provision," not something you assert to impugn the legitimacy of your political rival. It is borne of grave necessity and pressing oppression.

The framers of the Constitution thought that preserving the right to bear arms might help the populace form a militia that could fight a standing army that turned against the people. The problem with the insurrectionist theory is there is always someone who thinks that tyranny is in the present.

What role does the insurrectionist theory play in the gun rights movement?
Some gun rights advocates would say that it's always been a part of the Second Amendment and the Constitution. But the insurrectionist theory really gained traction when the National Rifle Association switched gears from hunting and marksmanship to small-government populism in the 1970s.

When we look at the longer arch of our country's history, the insurrectionist theory gets a serious black eye in the Civil War. The way Heller talks about the right to defend oneself against the government is the exact thinking that animated the secession of the southern states in the Civil War. The southern states said they were raising arms to assert a right to rebel against tyrannical government, but they did it on behalf of their power to keep slaves.

Have black Americans ever invoked the insurrectionist theory to protest government oppression?
The group that has the strongest claim on the right to rebel is comprised of people who "are seen as the bad guys with guns" by the gun rights movement. But I presume that when people think of the right to revolt, they think of Patrick Henry or Thomas Jefferson. They don't think about Malcolm X or the Black Panthers, even though the Black Panthers were quite open about the fact that they were arming themselves as a check on the police force.

I doubt Trump would be extolling the virtues of armed black citizens patrolling protests in Ferguson or Baltimore as a legitimate exercise of their right to insurrection or the right to bear arms.

Based on her positions on stronger gun regulation, does Clinton "essentially want to abolish" the Second Amendment, as Trump argues?
No, that's nonsense. I understand the political nature of trying to activate single-issue voters, but abolishing the Second Amendment has never been part of the Democratic party's platform, and it's never been something Hillary Clinton said. Now, we're going to get into a disagreement about what exactly is the scope of the Second Amendment. I'm sure Clinton would say, "Reasonable gun regulations don't violate the Second Amendment, and I'm for those." But if you're a Second Amendment absolutist, and you believe that any gun regulation is an infringement on the right to bear arms, then Trump's claim has more meaning. As far as her appointing someone who would overturn Heller, I don't see it happening. There's no political appetite for that on either side.

If Trump wasn't serious, should we still worry about what he said?
Yes. There are two viable political parties in the American democratic tradition. Donald Trump is the leader of one of them. He says that his political opposition is illegitimate, and if the Democrats win the election, it will be because of fraud in the electoral process. And then he throws in this comment about the Second Amendment as a way of overthrowing the government. I think it's worrisome.

The irony is that Trump is the law-and-order candidate. To talk about broad societal disruption and criminals' lack of submission to lawful authorities, and then say, "Maybe it's ok to profess some desire to overthrow a legitimately elected government," is inconsistent.

* In the landmark District of Columbia v. Heller decision, the US Supreme Court ruled for the first time that the Second Amendment protected an individual's right to bear arms. One line of the opinion, written by the late Supreme Court Justice Antonin Scalia, the court explicitly referenced the right of citizens to defend themselves against government oppression. In Scalia's words, "When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny."

A version of this article was originally published by the Trace, a nonprofit news organization covering guns in America. Sign up for the newsletter, or follow the Trace on Facebook or Twitter.