No, you don’t get to overthrow the government of the United States

In my latest Sun column: Rep. Jamie Raskin, Maryland Democrat, talks about his bill to prohibit activities of the self-proclaimed militia we saw on display during the Trump years and at the Capitol on Jan. 6 — the Oath Keepers, Proud Boys and other groups of camo-clad white men in protracted adolescence. Raskin often hears the claim from Republicans that Americans have the right to overthrow the government and that, in fact, is the real reason the 2d Amendment exists — so that armed militias can fight their own elected leaders. Not true at all, says Raskin, a constitutional scholar and professor emeritus at American University’s law school.

More from my interview with him:

DR: So the main argument against restricting the activities of, say, the Proud Boys or Oath Keepers is that they need to be armed in case our own government does something they don’t like?

JR: It’s what I hear frequently, which is the 2d Amendment gives the people the right to overthrow the government and so the people have the right to organize militia. Now, you know, there have been hundreds of prosecutions and convictions of January 6th defendants and none of them has succeeded in arguing that the 2d Amendment or the 1st Amendment gives them the right to engage in violence against the police or work to overthrow the government.

DR: Did some actually make that argument?

JR: I’m not sure. But, politically, you hear it all the time. But if there’s a right to overthrow the government when you think it’s behaving unfairly towards you, then they all would be invoking that right. But it doesn’t exist. And the Supreme Court was clear about that during the Civil War. I mean, when I explained to [Republicans] that our Constitution forbids insurrection in a half dozen different places, they say, “What about Patrick Henry? He said, ‘Give me liberty or give me death,'” which was a great slogan, a bumper sticker in the 18th century. But it’s not in the Constitution. And in any event, Henry was an anti-federalist who voted against the Constitution. So I’m afraid Patrick Henry is of no relevance to the question. Then they say, ‘Well, what about the Declaration of Independence?’ And this is more plausible because the Declaration does start off talking about a ‘a long train of abuses and usurpations,’ and the people having the right to dissolve the political bonds and so on, and start their own thing. All of that is perfectly true. But when Jefferson wrote the Declaration of Independence, he was not appealing to the Magna Carta or British law. He was appealing to natural law. And he basically said that people, as a matter of natural law and right, can overthrow an oppressive government. So, if you think that the 2020 presidential election, which Joe Biden won by more than seven million votes, is an act of tyranny, then you can go ahead and assert your natural law rights and go and try to overthrow the election, but if we stop you and we catch you and we arrest you, you will be prosecuted and you’ll be going to jail — like the leader of the Oath Keepers, the Yale Law School graduate, Stewart Rhodes — for 18 years. … Lincoln was very eloquent on this point. He said that the Constitution did not contain the right to violently overthrow the Constitution and the government. He said that insurrection was the violation of the very first right of the people in a representative democracy: Their right to choose their own leaders.