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The Body of the People: Regulation

Does the Second Amendment in the U.S. Bill of Rights protect the right to bear arms in order to ensure armed citizens can check government? Is there a "right to revolution" inherently protected by the Second Amendment? And, if so, does this idea include a "right to insurrection" wherein armed protestors or regulators can check administrative missteps without dissolving the government outright?

The idea that the Second Amendment protected a right to revolution had a very limited interpretation by the Founders. Revolutionary rhetoric supported the idea that keeping arms in the hands of citizens protected a free state. It was the duty of every citizen to take up arms against a tyrant or a tyrannical legislature that dissolved or destroyed the government. Under this worst case scenario, the Second Amendment which had served to keep arms in the hands of "the body of the people" did not include any continued protection since tyrants had dissolved the Constitution.^[1]

But does the Second Amendment protect a "right to insurrection" wherein citizens utilize armed resistance to voice dissent against legislation or administration without overthrowing the government? Many of the Founders were very clear that individual or minority armed resistance against the government was not acceptable. Armed resistance had to be a unified act by the "body of the people" which was often associated with the organized militia. However, the Founders debated the means of organizing the "body of the people" and the circumstances under which it was acceptable to mobilize armed resistance.

This political debate was also influenced by popular interpretation and tradition which did not often agree with the designs of influential politicians. Traditions of petition, resistance, and riot from Europe continued in the colonies and became better organized before and during the Revolution. After the war, popular actions spurred by political, economic, and social changes tested the limits of armed resistance against the government. These populist movements raised questions about the "right of insurrection" or, more aptly termed for the time, the right of "Regulation."

By 1800 most of the Founders and political elite dismissed popular Regulation movements. Initial differences in opinion followed Federalist, Antifederalist, and Democratic-Republican affiliations. Federalists viewed armed action against government as extralegal and traitorous. The election process and the courts were the sole means for addressing political differences and the citizen militia had a duty to uphold that course. Antifederalists and Democratic-Republicans at first praised popular action as a natural part of the political process. But even these political leaders were concerned that the armed resistance that characterized Regulator movements might hurt their national political objectives. This concern led the Democratic-Republicans to redefine acceptable protest and publicly denounce localized armed action by individual groups not organized by the state.

An extended examination of events that influenced political and popular opinion before and after the American Revolution provides a better understanding of how the Founders and "the people" viewed actions against government from regulation to revolution to rebellion. Five case studies that span forty years (c.1760-1800) provide context for interpreting the extent of the "right to insurrection" sometimes tied to the Second Amendment. These case studies illustrate how popular opinion and action that developed in the colonies eventually clashed with the efforts to stabilize the new government. By 1800, citizens who used armed action against the government were traitorous rebels or, at the very least, misguided minorities, and the popular ideas behind the "right to insurrection" were delegitimized.

Delegitimizing Insurrection

This three part series examines three periods utilizing three themes: regulation, rebellion, and revolution. Whether an event was one or the other depended on a participant’s point of view. For this article series these themes provide a road map for understanding the macro-view of how popular insurrection became delegitimized.

Part I: Regulation

Regulation is a term that came from 17th century England but was popularly used in the colonies during the mid-18th century.^[2] In its infancy, Regulations were popular movements that aimed to correct errant laws or officials. These actions were often the result of unanswered petitions and inadequate legal access. But Regulations could easily devolve into rebellion and participants struggled to maintain their legitimacy. The two case studies of the North Carolina Regulation and the New Hampshire Grants provide a closer look at how popular movements negotiated their legitimacy before and during the American Revolution.

Part II: Revolution

Committees of Safety and the press famously aided American colonists as they organized and refined protest before and during the American Revolution. After the war, these methods continued to be used by popular movements to express dissatisfaction with local and state governments. The language of revolution was conscientiously used to legitimize their actions as a continuation of the fight for freedom. However, at the same time, the Founders were searching out a way to stabilize the new country and secure the legitimacy of the new nation. This created a clash of interests that culminated with Shays’s Rebellion which was then used by the political elite as an example of the anarchy and rebellion that awaited a weak confederation. The case study of Shays’s Rebellion, and its political use, provides evidence of the evolving opinions towards popular armed protest.

Part III: Rebellion

The power of the President and the federal government to suppress insurrections came to a head shortly after the new U.S. Constitution was ratified with the Whiskey Rebellion and Fries’s Rebellion. Case studies of these "rebellions" illustrate how far popular definitions and ideas of Regulation had diverged from the new political order. While the Second Amendment was not directly invoked, the Regulators conscientiously used militias to legitimize their actions as "the body of the people." This directly countered the Founders’ ideas of an acceptable use of the militia. Even Democratic-Republicans who had supported popular movements began to view these actions as doing more harm than good and by 1800 they argued armed protest was only legitimate when organized by the states.

Central to the change in the legitimacy of Regulation was the opposition between how it was interpreted by the public and how it was redefined by the political elite. The narrowed definition by the Founders gradually influenced public perception of these events over time. Regulators found they could not maintain their legitimacy on a nation-wide basis, regardless of the amount of support they maintained locally. To begin, the case studies from Colonial America provide a closer look at popular definitions and mechanisms for armed protest.

Part I: Regulation

Popular Dissent

Civil disobedience in the American colonies often followed a pattern that complied with traditions from Europe. The first course of protest, especially political protest, started with general petitions to courts and officials. Popular dissent often included protestors of different social status and politically connected individuals usually delivered the petitions and grievances on behalf of the community. Since the petition process was often slow, passive resistance such as ignoring unpopular laws or neglecting to pay new taxes might also be used to halt the effectiveness of government and force the issue to be addressed. If objections were ignored or rejected, protest escalated to public demonstrations that could be organized as parades or mock ceremonies which, like festivals, could include speeches, music, costumes, and general carousing.^[3] In the colonies the citizen militia, whose involvement was often used to stress community cohesion and legitimacy, might also parade with "fife and drums" as part of the demonstration.^[4] Citizens might also occupy and shut down courts especially during political protests aimed at corrupt officials or burdensome taxes. If the problem was more immediate or provocative then citizens could erupt into riot and effigy burning. Even riots, despite the escalation of violence, could maintain some popular legitimacy if the disruption remained focused on the disputed law, tax, or official.

Protestors promoted their legitimacy by insisting their actions maintained the status quo and protected the common good. This was often done by evoking the community’s shared memory of how things should be done. Even in cases when a tax or law was not new, the historical memory (or lack thereof) of the community could challenge its validity.^[5] Citizens also believed they had a duty to maintain the status quo and order in society. The posse comitatus tradition from Britain continued in the colonies and maintained the link between community action and common weal.^[6] All citizens were required to raise the "hue and cry" during a crime or emergency. Male citizens were expected to take action against any immediate threat. When time allowed for organization, male citizens over the age of 16 could be called up by the sheriff as a posse comitatus to restore order.^[7] In essence, everyday citizens acted as the impromptu police force since there was not a professional force in place.^[8] Failure to respond could result in fines or imprisonment and citizens could be charged for the damage caused by riots if they were compliant or failed to act.^[9] In the colonies local governments also used the local militias to maintain order. This further reinforced the citizen’s role and responsibility in policing the community. But this involvement created a grey area. Although it was illegal to riot, it was legal to come together as a community to enforce the laws for the public good. If enough people considered corrupt officials or unjust laws and taxes were threatening the community, then they had a duty and the right to protect themselves. This populist interpretation of justice and the citizen’s duty to enforce law made it possible for some mob action or riot to be considered legitimate by the rest of the community.^[10] This reasoning would become one of the recurring ideas behind regulation movements. These citizens were not anarchists but believed they had a continued say in checking the overreach of government, especially when it threatened the well-being of their communities. Riot became a legitimate way to show the "boiling point" had been reached if official channels were closed or magistrates refused to listen.

Officials and political leaders begrudgingly acknowledged that some popular action provided legitimate feedback but tried to limit these demonstrations. Riot and mob action was viewed as extralegal but officials recognized that there was some merit to the grievances they expressed. These popular actions were not in themselves "anti-authoritarian" or "anti-institutional."^[11] Officials often quelled unrest with promises to investigate the causes behind it. This was especially true in cases where citizens had tried to petition government but felt their access to legal means of redress was ignored or inaccessible. However, investigations often would not change or repeal unpopular laws and taxes. Instead efforts were made to address access to local courts and examine the actions of local officials. But any changes or reforms would not necessarily quell the unrest. Continued violent demonstrations or riots that included armed citizens were addressed with force. These citizens disobeyed the King’s laws and armed citizens were traitors to the crown.^[12] Officials would call up the militia to restore order. However, sometimes the militia, made up of citizens, would refuse to act or were part of the mob. Officials then might enact a Riot Act which enabled sheriffs to enlist a posse, often paid, to arrest leaders and violent offenders. In the colonies the punishments varied but could include loss of property and civic rights.^[13] As a last resort colonial officials might use British soldiers but generally this was avoided and took a great deal of political maneuvering to accomplish.^[14] Any escalation that continued beyond this point lost its legitimacy and was labeled an outright insurrection or even rebellion.

Popular dissent followed a customary pattern through which citizens maintained legitimacy by organizing behind a shared grievance that spoke to protecting the common good. Even when demonstrations became violent, protesters tried to keep the violence limited and focused. They knew their actions were illegal but by limiting these outbursts they could retain the support of the local community and possibly gain some redress from government officials. However, violence could often escalate and undermine this tenuous legitimacy. Case studies before the Revolutionary War illustrate how these popular movements struggled to maintain legitimacy in their attempts to address political grievances and regulate government. All of these characteristics of popular dissent are first exemplified by the North Carolina Regulation in the mid 18th century.

The North Carolina Regulation

In the 1760s colonists in western North Carolina petitioned the colonial assembly and Governor William Tryon seeking redress for high taxes and court fees that pushed middling farmers into debt. They claimed that land speculators, lawyers, and corrupt officials were fleecing honest and hard working citizens. Additionally, a new tax passed in 1766 to build a new Governor’s mansion only increased their troubles. Throughout the conflict the North Carolina Regulators followed the patterns of popular dissent. But their bold actions and the increasing rhetoric of violence led to armed confrontation at the Battle of Alamance on May 16, 1771. The Regulators were quickly routed and their leaders either fled or were hanged for their crimes.^[15]

Popular dissent in western North Carolina was first organized around their shared complaints. George Sims, a schoolteacher, published a speech he gave at Nutbush Creek in 1765 which shows the rhetoric used to accentuate the citizens’ submission to government but maintain their right to stand against corruption. He begins stating:

"Gentlemen, it is not our mode, or form of Government, nor yet the body of our laws, that we are quarrelling with, but with the malpractices of the Officers of our County Court, and the abuses which we suffer by those empowered to manage our public affairs..."^[16]

Sims then provided an example of the cycle of debt and corruption hurting hard working families: The farmer who is unable to pay his debts must labor for the merchant, lawyer, and sheriff to pay off his initial debt and added court fees. After weeks of underpaid labor, he returns home only to find his own farm went to ruin in the meantime and he must borrow again or lose his farm to land speculators. Sims claimed that this tyrannical system was in need of a "reformation" since, "these practices are diametrically opposite to the law, it is our absolute duty, as well as our Interest, to put a stop to them, before they quite ruin our County." His plea for community action was tempered with a warning to "act with dilberation[sic]" so as, "not appear as a faction endeavouring to subvert the laws, and overturn our system of government."^[17] Sims himself was later sued for libel but his complaints were shared by others in the western counties. In the summer of 1766 the Sandy Creek Association was formed to organize their grievances against Edmund Fanning, a local administrator and militia colonel, who refused to meet with them or address their charges of corruption.^[18]

These attempts at petition for redress from corruption failed at the same time the assembly passed a tax to build a new Governor’s mansion. Combined, these issues encouraged citizens to organize their actions by March of 1768.^[19] They proposed an, "Association to assemble ourselves for conferences for regulating publick Grievances & abuses of Power." These Regulators refused to pay taxes and unfair fees unless forced. They promised to organize their votes for, "more suitable men than we have heretofore done for Burgesses and Vestry men." They also agreed to continue to petition the governor to preserve their customary "Priviledges & Liberties."^[20] A riot erupted when a horse was seized from a man who refused to pay his taxes. After the riot, the Crown Attorney, Edmund Flanning, arrested two leaders who the Regulators later forcefully freed from jail. These actions were condemned by the Governor and in their petitions the Regulators appealed for clemency along with continued consideration of their grievances. The Regulators admitted that they had made themselves, "liable to severe and heavy punishment" but insisted that their actions were, "infinitely more criminal than we apprehended or imagined" and they were acting to protect themselves and their community.^[21] Governor Tryon agreed to review the grievances but insisted the violent demonstrations had to stop.^[22]

The Regulators were aware of their extralegal status and were concerned with maintaining legitimacy for their cause. A letter from Ralph McNair, a politically connected merchant, to Herman Husband, one of the Regulator leaders, shows that they were seeking advice on how best to proceed. McNair warned,

"Mobs and Riots (that is where a number rise without Arms and only murmuring) are treated generally with Lenity as to the multitude tho' where the Offence is against Government and ringleaders are to suffer death without the King's pardon. But where they take up Arms to remove a Grievance or to alter the form of Government it is Treason...."^[24]

Despite these warnings, Regulators still armed themselves when they heard rumors that the Governor was assembling a force against them. In truth the Governor did muster the militia but had only a third of the force of the Regulators when they met at Hillsborough in September 1768. The potential confrontation did not happen and the Regulators dispersed.^[25]

For a time, it seemed that some of the more peaceful aims of the Regulators would be met. Edmund Fanning was tried for corruption and fined. New representatives were elected to the assembly including Herman Husband. But in the end little more was done to curb corruption and fees. Additionally, any reforms came to a halt when the assembly was dismissed by the Governor because of tension over the Townshend Acts.^[26] Attacks on officials collecting taxes and seizing property sporadically continued in western North Carolina. Then in September 1770 a crowd of Regulators convened on the Hillsborough superior court with the intent to force the court to appoint the jury exclusively from their ranks. When Judge Richard Henderson slipped out of town, effectively shutting down the court, the Regulators rioted. Fanning became the focus of much of the anger and was beaten, paraded, and then chased out of town. Both his property and his effigy were burned. Other lawyers were also abused for their association with the courts. Public opinion began to turn against the Regulators, in one report:

"[T]he courts of justice totally stopped, and every thing reduced to the power and controul of a set of men who call them selves regulators; but are in fact no other than a desperate and cruel banditi, actuated by principles that no laws can restrain, no honour or conscience bind."^[27]

The Regulator’s actions had crossed a line that undermined their legitimacy both with the public and in their petitions to government.

The actions of the Regulators could no longer be forgiven and the Governor moved to suppress the insurrection. A Riot Act was passed that authorized the militia to round up the Regulators from Hillsborough with lethal force if necessary. Those who evaded the law or refused to surrender became outlaws and could be killed. Any future disruption of court proceedings became a felony offense. Finally, it further clarified that anyone who took up arms against the government were considered traitors.^[28] The Regulators and even some public opinion protested this Act which was harsher than the English common law precedent. But Governor Tryon hastened to assemble an army against those he now called rebels. At Alamance the Regulators made one last attempt to appeal to the Governor to address their grievances but he insisted they surrender without conditions. On May 16, 1771, the Regulators were defeated in a two hour battle. Governor Tryon then held a month long campaign chasing down Regulator leaders, burning their farms, and showing force in the countryside. Of the leaders captured twelve were condemned to death and many others, including Herman Husband, fled the colony. Amnesty for most Regulators was offered if they took an oath of allegiance, surrendered their arms, and, of course, paid their taxes. This trend towards amnesty increased under the new Governor Josiah Martin who was sympathetic towards the former Regulators.^[29] The Governor had little interest in continuing to hunt down farmers-turned-rebels but instead preferred to return those farmers to their domestic lives as taxpaying citizens.

The North Carolina Regulation provides a clear example of how Regulation movements tried to maintain their legitimacy by acting through the traditions of popular dissent. Their petitions proclaimed their loyalty to government while arguing they had an "ancient" right to protect themselves and regulate unjust practices that threatened their livelihoods. Governor Tryon at first showed leniency in responding to their grievances but escalations in violence and the Regulators’ show of arms served to undermine their legitimacy with most government officials. Although some of the public remained sympathetic to their plight their actions allowed the Governor to promote the use of force to quell the "rebellion." Nonetheless, the failure of the North Carolina Regulators did not undermine the popular ideas of Regulation. Hundreds of Regulators left the region with their principles intact and the movement would continue to be celebrated in popular legend, songs, and poems.^[30] Their ideals, rhetoric, and methods would continue to be used by other regulation movements.

The New Hampshire Grants

The New Hampshire Grants dispute first centered on land titles but eventually developed into a full independence movement. The settlers used tactics of popular dissent and, led by charismatic leaders like Ethan Allen, eventually tied their cause to the rhetoric of the American Revolution. By incorporating ideas from the American independence movement they were able to increase the legitimacy of their cause and were eventually successful in retaining their lands and eventually formed the new state of Vermont.

The conflict surrounding the New Hampshire Grants initially followed the same patterns of popular dissent as the North Carolina Regulation. In 1749 Governor Benning Wentworth of New Hampshire began to sell land grants to encourage settlement in the backcountry. In 1763 New York’s Lt. Governor Cadwallader Colden argued that land grants sold by New Hampshire in the Green Mountains west of the Connecticut River were invalid since this territory was part of New York.^[31] The King supported New York’s claim which left the Green Mountain settlers on their own to petition the King and argue their claims case by case in the courts.^[32] But by 1770 all of the court cases ruled for New York petitioners which convinced many in the Green Mountains that the courts were biased against them.^[33]

When the petitions and courts failed, the settlers began to organize to defend their farmlands and towns. Tensions were already high. Some settlers in the Green Mountains had moved from the New York Hudson Valley region where both rent riots and the military response had left a strong dislike and distrust of the New York elite.^[34] Others who had settled the area had uprooted their extended families and religious communities and could not afford to lose their land as they had no place or community to go back to. Additionally, land speculators from New York had started surveying in earnest but, for a while, land sales from New York remained unsettled. It appeared land speculators and rich landlords would buy up all the land and set up the same rent system as the Hudson River Valley while uprooting the farmers who had already worked the land. Local militias began harassing land speculators, organizing resistance to evictions, and tearing down jails to free anyone arrested by New York authorities. They also harassed New York settlers, or "Yorkers," and forced many to leave. By 1772 these militia groups under charismatic leaders like Ethan Allen began to call themselves the Green Mountain Boys. They identified themselves with fir twigs in their hats and mustered at a moment’s notice to protect their communities. The Assembly back in New York labeled them rioters to which Allen responded,

"Can the New York scribblers...make any person of good sense believe that a number of hard laboring peasants, going through the fatigues of settlement, and cultivation of a howling wilderness, are a community of riotous, disorderly, licentious, treasonable persons?"^[35]

A short truce was created with Governor William Tryon (yes, the same Governor from North Carolina!) but quickly fell apart. By 1773 the Green Mountain Boys were running their own courts since they could not rely on the "unequal and biased Administration of Law" from New York.^[36]

Unlike the North Carolina Regulators, the Green Mountain Boys did not maintain the same level of quasi-legitimacy with government. They were labeled by both the Governor and Assembly of New York as illegal rioters.^[37] In Allen’s letter to Governor Tryon he argues that the Green Mountain farmers promised, "to use the greatest care and prudence, not to break the articles of public faith, or insult governmental authority." But this promise was limited by their first concern to protect their property.^[38] At first, New York had a more powerful position and by 1774 Ethan Allen even proposed that the region would accept New York’s laws if they recognized the legality of the New Hampshire land grants. Instead the New York Assembly passed a Riot Act that made any resistance to the government punishable by the death penalty.^[39] The Green Mountain farmers were not able to convince New York of the legitimacy of their cause but they soon found an unexpected opportunity in public opinion.

The heightened rhetoric of freedom that fueled the American Revolution provided a new source for promoting the legitimate resistance by the New Hampshire Grants settlers. For the most part, the Green Mountain Boys provided stability in their region and maintained local popular support. But the press offered another opportunity to gain public support with a wider audience. In pamphlets and newspaper editorials, Allen promoted the struggle of the farmer against corrupt government and argued that the tyrannical government of New York was failing to protect the common people. New York became synonymous with the British and their Loyalist officials offered further evidence of the corruption and greed of the British government. The struggle for the New Hampshire Grants became tied with the greater struggle for liberty and freedom.

In March 1775, the forceful closure of the Westminster Court that was hearing debt cases led to a clash between Yorkers and New Hampshire Grants settlers that escalated into violence. The Westminster Massacre finally encouraged the majority of Grants settlers to vote for independence and create a new province.^[40] The New Hampshire Grant regulation, as initially envisioned, was essentially over. It had evolved into a rebellion for independence. Shortly thereafter the Green Mountain Boys joined forces with Benedict Arnold and took Fort Ticonderoga in the earliest victory of the American Revolution.^[41] These two events, their vote for independence and their military action against Britain, joined the Grants settlers with the American Revolution and the Green Mountain Boys recast themselves from backcountry rebels to American Patriots.

However, tying the fate of the New Hampshire Grants with the American Revolution did not immediately guarantee success. By 1777 the Grants settlers prepared a new Constitution for the Commonwealth of Vermont and appealed for entry as a new state. But the Continental Congress refused, in a large part due to pressure from New York. Vermont would continue to petition for entry for several years continuing to spin the rhetoric of the revolution until it became a state in 1791.

Conclusion

Dissent in Colonial America could take many forms but often followed specific patterns that reflected the populist ideas of what made protest legitimate. The regulation movements often began by appealing to government as was the case in North Carolina and the New Hampshire Grants. But farmers in both communities found their petitions produced few results and the courts were either corrupt or they were outmaneuvered by those who knew the laws better. Without legal recourse protesters turned to passive and active means of resistance. In both regions maintaining a level of localized support was vital and unity was expressed by taking Regulator oaths or organizing the militia into special units. However, this organization and their use of arms in both cases made it difficult to maintain their legitimacy, especially with government officials. These case studies are unique in that they both involve Governor Tryon and his earlier experiences in North Carolina that likely influenced his hard-line actions against the New Hampshire Grants settlers. Despite this coincidence, in both instances it is clear that colonial leaders allowed only limited quasi-legitimacy to extralegal actions and the militarization of regulators by taking up arms or utilizing the militia was unacceptable. In the next case study focused on Shays’s Rebellion it becomes apparent that regulator movements could still enjoy local popular support but became increasingly isolated. Unlike the New Hampshire Grants, the regulation movements after the war were unable to tie their cause with national public opinion and this would change the cultural acceptance of dissent, especially armed dissent.