A mob of hundreds of ardent Trump supporters breached the nation’s Capitol on January 6 to halt the certification of electoral votes from November’s election and keep the president in power. Some of the rioters described their cause as a justified “revolution.” They had, after all, marched down Pennsylvania Avenue at the urging of their leader, who told them: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
President Trump has used the rhetoric of insurrection at least since his 2016 campaign. That summer, he told supporters at a rally, “if [Hilary Clinton] gets to pick her judges, there’s nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.” At the time, it was unclear whether Trump intended to encourage violence. But Darrell Miller, a constitutional law scholar at Duke, told The Trace then that Trump’s comments might find some purchase among more extreme gun-rights advocates.
Although guns were not the main focus of this week’s insurgency, some members of the mob brought firearms to the Capitol that day and several of the high-profile participants are also active in gun-rights groups. We decided to contact Miller again, to help us understand the relationship between this week’s events and the belief of some gun-rights extremists that the Second Amendment blesses armed uprising.
It seems like the insurrectionists at the Capitol this week really believed they were standing up to government oppression. The language of insurgency and insurrection is used a lot in extreme pro-gun circles. Can you explain what their thinking is?
There’s a theory of the Second Amendment called the insurrectionist theory. According to it, the Second Amendment preserves civilians’ right to bear arms so that they can take up arms against a tyrannical government, should the need arise.
How far back does the insurrectionist theory go?
There’s not a simple answer to that question because the very history of the amendment is contested. I guess if you believe that when Thomas Jefferson said that the blood of tyrants is the natural manure of liberty, and you believe he was really serious about that, then your answer is, insurrectionist theory goes all the way back to the founding era. Now, there are other historians who would say that that’s a tendentious reading of the history, at best, and that really nothing about the idea of the Second Amendment is actually designed to empower the people to overthrow the government. The insurrectionist theory wasn’t part of modern legal discourse until the 1970s, at the earliest.
What happened in the 1970s?
That was when the National Rifle Association went from being a sportsman’s organization to a very strong and inflexible gun-rights organization. They began to see any kind of regulation of firearms as one step toward widespread confiscation. And in order to support that set of arguments, the NRA argued [that] a disarmed populace can’t defend itself from tyranny.
Do subscribers to the insurrectionist theory care only about defending themselves against an intrusive, tyrannical government? Or do they also want the ability to go on the offensive?
The premise of the insurrectionist theory is, “I need these arms in order to defend myself against an oppressive government.” But that can express itself in all kinds of ways. That can be passive, like “I have this gun in my house.” It could be, “I’m carrying this gun into this government building because I want to show them that they can’t do anything to me.” Or, it can extend all the way into the use of violence against government officials.
Do you see any connection between the ideology of the insurrectionist theory and the mentality of the mob at the Capitol this week?
We have to remember that this is happening on the heels of the FBI discovering a plot by Michigan militia members to storm the Michigan Capitol building and kidnap and kill political officials in the state. I saw some reports that certain people were in D.C. to find Mike Pence, to force him to do what the Constitution does not permit, which is to just throw out electoral votes. They were prepared to make him do that under duress. It doesn’t seem that far from the spirit of storming Lansing to storming the nation’s Capitol to get your political end accomplished.
You pointed out four years ago that the problem with the insurrectionist theory is that “there is always someone who thinks that tyranny is in the present.” And I think, in the minds of the Trump supporters at the Capitol this week, they thought tyranny was in the present. They really felt they had already exhausted all other legal, peaceful avenues to try to get the electoral result they wanted.
I’m sure that’s how they think of it, too. Which is why this is such an explosive theory of constitutional rights. There’s always somebody who is going to mistake legitimate government for tyrannical government.
Insurrectionist theory seems difficult to square with a core element of a democracy, which is that we all agree to resolve disputes nonviolently.
Right. If someone says, “I want to take this gun into a courtroom because I want to show the judge how he should rule,” well, that goes against the very idea that we have a court system that adjudicates disputes under the imprimatur of law in a process that everyone agrees with.
We now have political bodies who are trying to make hard decisions in good faith on behalf of the people, which always involve policy trade-offs. They’re doing so against a backdrop where a subset of society will not accept the results of any political process. This is a huge problem for American democracy.
And this is all happening as firearms make their way into more and more public spaces. How do you think the role of guns in political life has changed since 2016?
Well, I think they’re far more ubiquitous. It’s far more normalized to have people assemble outside places of governance with not just sidearms, but with very lethal weapons. It’s now more common to see that as a feature of political protest than it ever was, in even 2016.
It’s one thing if everyone leaves their guns at home, and you just have an armed populace. It’s another thing if people think, “It is my right to take these arms and overawe the political actors and political process.” That’s why the normalization of public arms at political events is hazardous. If we have a scenario in the future where the people who mobilize with guns have a bigger voice than the ones who respect a peaceful political process, then we are at the end of American democracy.