For the Security of the State: Part I
By Scott Lipkowitz
The last several years have seen an increase in the amount of armed militia groups openly operating in direct opposition to the Federal Government. Incidents in Oregon, at the Mahleur National Wildlife Refuge, and on the Bundy Ranch in Nevada have served as rallying points for self-styled defenders of the Constitution and of individual liberty. Ammon Bundy, involved intimately in both standoffs with Federal officials, said of the occupation in Oregon: “we are out here because the people have been abused long enough”. In this case “the people” being referred to are Western Ranchers who Bundy and his supporters believe have been unjustly hurt by the federal government’s acquisition of wild land. Much has been said of the legal authority of the government to set aside and control such areas in an effort to undercut the militia’s claims to be upholding the “people’s constitutional rights”. However, there is a different ‘constitutional right’, beyond that of land use, to which these groups seem to be claiming for themselves. Namely, their ‘right’ to defend themselves against tyranny; a right claimed to be inherent within the Constitution itself; codified in the 2nd Amendment. If such claims are true, and if such a right exists, then they raise pressing concerns which go beyond the traditional arguments - which will not be rehashed here - espoused by both sides of the 2nd Amendment debate. Concerns such as, who decides what constitutes tyranny? Do we have the right to armed insurrection when we view the law to no longer be working? Did the authors of the Constitution, the newly empowered rulers of the state, truly intended to give their citizens the right to rebel against them?
Incidents like Mahleur and the Bundy Ranch are not a new phenomenon in United States history. They stretch back even before the adoption of the Constitution, and may have provided the final impetus for its very creation. Like Mahleur and the Bundy Ranch, these earlier insurrections and rebellions began with an attempt to disrupt the enforcement of the laws of the state. At Mahler, the militia aimed to block the jail sentences of two ranchers, while the federal attempt to impound cattle over unpaid grazing fees sparked armed resistance on the Bundy Ranch. In the two decades prior to the American Revolution, militias rose up against the authority of the states in North Carolina, South Carolina, New York, and Vermont. While they met with defeat in North Carolina and New York, those in Vermont (eventually lead by Revolutionary War hero Ethan Allen) succeeded, leading directly to the establishment of the Independent Republic of Vermont in 1777. However, it was Shays’ Rebellion in Western Massachusetts in 1786, a mere year before the adoption of the Constitution, which would truly shake the foundations of the fledgling republic. Before delving into Shays’ Rebellion and its consequences; there is a question raised by this recurrence of popular armed insurrections which needs to be addressed. Why did armed groups of men within the soon to be United States believe they could use force to impose their will on the government?
After 240 years of evolving along different trajectories it is often easy to forget that at the time of the Revolution, the Colonies were culturally British. British law and custom were a key facet of colonial society. One such law and custom was the right to bear arms guaranteed by the English Bill of Rights. Following the Protestant Reformation, England became a fertile ground for sectarian violence. Two of its Catholic kings, the Stuarts Charles II and James II, sought to control their Protestant opponents by disarming them through seemingly benign laws such as the 1671 Game Act. At the same time these Catholic kings outfitted their own militias and armies to further quell dissent; taking full advantage of the fact that their opponents no longer possessed the legal means to physically resist them. That all ended however in 1688, with the deposing of James II, and the procurement, in 1689, of the English Bill of Rights. Among the many alterations to the British system which it contained, was a guarantee that “the subjects which are Protestants may have arms for their defense suitable to their conditions”. Such a law aimed to ensure that no one sectarian faction would be able to gain the upper hand against another by depriving their opponents the right to arm themselves for their common defense. English colonists no doubt expected the same guarantee of their ability to arm themselves and to exercise the right to ‘defense’; even when the sectarian factions against which they fought were of a class interest and not a religious one, as was the case in New York, North Carolina, and Vermont. But this right to bear arms under British law only partially answers the above stated question. To turn armed insurrection into a natural right would require an ideological push.
That push came in 1776 with the issuing of the Declaration of Independence. In striking similarity to the English Bill of Rights, the Declaration lays out a list of grievances against the King and against oppressive rule; but while the English Bill of Rights provides political and functional remedies; the Declaration makes an ideological recommendation instead. “Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” According to the founders of the United States, it is the right of the people to alter or abolish any government which they view as destructive. And exercise this right they would; over the course of seven years of conflict. Yet, when the war ended in 1783, those same founders who had given ideological weight to the right of armed rebellion against the government ceased themselves to be revolutionaries. Instead, they now found themselves to be the leaders of the government, albeit a new and different one. What did not change, however, was the appeal to idealism and natural rights which they had started. Many had flocked to the Revolution and fought and died for those lofty principles of life, liberty, and the pursuit of happiness. Whether the new rulers would prove more equal to these ideals than the last remained to be seen. If they proved not to be, their new subjects now had a way to deal with them.
There is an old expression that ‘one man’s terrorist is another man’s freedom fighter.’ Surely the British viewed the leaders of the Revolution as nothing but treasonous rebels fighting against the lawful rule of George III. It is a seemingly universal law of revolutions then, that those who come to power inevitably view those who rise against their new found authority in much the same way as they themselves were viewed by those they fought against. Shays’ Rebellion, in western Massachusetts during the fall and winter of 1786 -87, less than a year before the drafting of the Constitution, would bring this universal law to the forefront. The Revolution was not an inexpensive endeavor, resulting in a significant amount of debt being held by the various states. Massachusetts was no different. Much of it’s state debt existed in the form of notes, essentially an I.O.U., given to soldiers who had fought for the state against the British. By war’s end these notes had become virtually worthless, and soldiers returning to their farms and families were in need of supplies and other vital necessities. As a result, many sold their notes to speculators for much less than face value. By the time the state began to make moves to pay off it’s debt in the mid 1780’s, nearly 80 percent of that debt was held by speculators from the Boston area; and almost 40 percent held by a mere 35 men. All of them had close ties to the governing elites in Boston; and all had an interest in making sure the state made good on it’s debts.
The value at which the notes would be repaid became a contentious issue. Those who had fought in the Revolution had sold them for much less than they were worth. Their current holders, however, were able to convince the state to reimburse them at the value of the notes when first issued; enabling them to make quite a profit. But to do so would require an increase in taxes; taxes which would fall disproportionately on rural farmers, many of whom were the very soldiers the notes were originally given to. This added to the many insults endured by Massachusetts’ farmers. Why should farmers in western Massachusetts be forced to pay for the aggrandizement of the wealthy? Hadn’t they just fought a Revolution against just such a form of oppression? Most could not come up with the hard currency required by the state treasury, and by the summer of 1786 they had enough. Pleas for redress from the government fell on deaf ears. Courts were about to convene to begin debt proceedings, and so, in the town of Northampton, a militia of western farmers, lead by Revolutionary War veterans, blocked the opening of the court. By the fall, courts all over western Massachusetts were being barred from conducting business. Shays’ Rebellion had begun; but it would end just as suddenly as it had started.
Attacking the courts, and keeping them from conducting the business of the state, could not go unchecked. Those whose very financial stakes were tied to the continued functioning of the state, including the governor himself, demanded action. The call to arms of the state militia, however, failed to produce much in the way of a fighting force. While the government may have had legal authority over the militias, they depended upon the very same sorts of men who were now in outright rebellion to show up and fight. Very few answered the call. Unable to muster any substantial troops to fight the rebels, the governor and many prominent Bostonians privately funded what can only be called a mercenary army. Led by Benjamin Lincoln (of dubious Revolutionary War fame), this hired army eventually put an end to the Rebellion with a victory over Shays and his men in the town of Petersham during the winter of 1787. For all intents and purposes the Rebellion was over. Shays fled the state, other rebel leaders were arrested. Over 4,000 men who had participated were pardoned on the condition that they swore an oath of allegiance to the state and agreed to a temporary loss of citizenship. The victorious authorities framed the insurrection as nothing more than indebted farmers trying to shirk their financial obligations, as it was to their benefit to do. But is that truly how Shays’ Rebellion should be viewed?
Just as in Mahleur and on the Bundy Ranch, those who lead the Rebellion in western Massachusetts aimed to prevent the state from using it’s power for what they viewed as tyranny and oppression. To the government of Massachusetts, and indeed to the founders of the new United States, the participants in Shays’ Rebellion were little more than treasonous insurrectionists obstructing the lawful functioning of just government. To the rebels themselves, the elites in Boston were distant overlords taxing them without any say, and without any benefit for them. It would seem that the founders now knew how the British felt in 1776. Yet, could one not call what was being perpetrated on the farmers who rallied to the cause of Shays and other rebel leaders tyranny? Were they not justified in their actions? If we can view Shays and his men as justly fighting for the cause of liberty, then why do we feel so differently about the modern militias of Mahleur and Nevada? What does this say about the transient nature of tyranny? This is a question that we must still wrestle with today. To the founders of the nation however, the answer was clear. A precedent was set with the first shot of the Revolution, and given breath in the Declaration of Independence. Now that the leaders of the Revolution were the leaders of the government; tyranny was anything that put their hold on power at stake. Shays’ Rebellion provided the final push for the drafting of the Constitution and of the establishment of a powerful central authority. In doing so, the founders did not aim to guarantee the right to fight a tyrannical government, but rather to provide the means by which the government could ensure that the Revolution of 1776 could not be repeated.
We’ll look at all of this, and at the Constitution itself, in part two of ‘For the Security of the State.’
Richards, Leonard L. Shays’s Rebellion: The American Revolution’s Final Battle. University of Pennsylvania Press. 2003
District of Columbia v Heller. 554 U.S. 570. (2008) Supreme Court of the United States. pgs 22-30.
English Bill of Rights. 1689. http://avalon.law.yale.edu/17th_century/england.asp
Declaration of Independence. 1776. http://www.billofrightsinstitute.org/founding-documents/declaration-of-independence/
Stack, Liam. (January 2, 2016). “Wildlife Refuge Occupied in Protest of Oregon Ranchers’ Prison Terms”. The New York Times. p A13. http://www.nytimes.com/2016/01/03/us/oregon-ranchers-will-return-to-prison-angering-far-right-activists.html?_r=0