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It has been argued that the point of the 2nd amendment is to overthrow a tyrannical government.

In the Declaration it states that “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.”

At what point "Legally", are we allowed to overthrow the government?

Digital fire
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    When you do it successfully ;)... – xngtng Feb 09 '23 at 10:15
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    As flippant as it may be... @xngtng is the most succinctly correct. Legality is a not a core component of revolution. Victory is. – Venture2099 Feb 09 '23 at 10:24
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    In Germany, there is Art 20 (4) GG, which gives all Germans "the right to resist any person seeking to abolish this constitutional order if no other remedy is available." – xyldke Feb 09 '23 at 11:31
  • @xyldke note that this article does not particularly mean "against the government" but literally everybody. I find this article more practical when the "everybody" is not part of the government - i.e. it would give you the Right of Resistance against whatever they are, as long as they are working against the German consitution. (I.e. they also handle the cases of, say, the "4th power", companies, organizations, individual). – AnoE Feb 09 '23 at 12:23
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    @AnoE The second part is important as well. If there is a constitutional government, another remedy is available (in form of the police, military, courts, ...) – xyldke Feb 09 '23 at 12:59
  • Also, keep in mind that while the Declaration of Independence was published 7/4/1776, the Revolutionary war started with the Battle of Lexington and Concord, which occured on 4/19/1775. The exact cause of this battle was that the British Army were attempting to disarm British Citizens who were, at the time, living on the edge of the frontier and were going to leave no garrison to protect them. The "Shot Heard Around the World" was over the government leaving the people for dead. – hszmv Feb 09 '23 at 13:19
  • It's less a matter of "when" and more a matter of "how", there are clearly defined methods to go about this that vary considerably depending on the situation. For example, "every 4 years at the ballot box" is one way provided for in the consitution. – Aaargh Zombies Feb 09 '23 at 15:43
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    Why would any form of government ever say "Here are the circumstances under which it's legal to overthrow the government by force" when they could write that it is legal to remove the government without force under those same circumstances, thus saving the cost of the deaths and violence involved in a revolution? – DJClayworth Feb 09 '23 at 19:01
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    I guess if you want to be specific about it, it's never illegal to try to overthrow the government, but it is illegal to try and fail to overthrow the government. – hszmv Feb 10 '23 at 11:26
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    New Hampshire's constitution includes the "right of revolution": https://en.wikipedia.org/wiki/Constitution_of_New_Hampshire. I'm not sure how you invoke that right legally – Flydog57 Feb 10 '23 at 15:16
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    The point it's legal is the point you win and form a new government that isn't going to seek retribution for the actions that created it. At the end of the day, laws are only as valid as the means to enforce them – ScottishTapWater Feb 10 '23 at 16:20
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    Lincoln and FDR essentially overthrew the government while rebuilding it immediately. Same could be argued for Washington/Hamilton. – JacobIRR Feb 10 '23 at 16:24
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    This question hurts my brain. – Ian Kemp Feb 10 '23 at 21:26

7 Answers7

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Think through the logical combinations of two questions: The government is tyrannical or just, the revolution is successful or not.

  • Tyrannical government, revolution successful:
    The revolutionaries will congratulate each other, and of course they are not persecuted by the new government they install.
  • Just government, revolution successful:
    The revolutionaries will congratulate each other, and of course they are not persecuted by the new government they install.
  • Tyrannical government, revolution not successful:
    The legal system will find the justified attempt illegal (because they are the legal system defending a tyrannical government), the would-be revolutionaries are persecuted.
  • Just government, revolution not successful:
    The legal system will find the unjustified attempt illegal (because they are the legal system of a just government), the would-be revolutionaries are prosecuted.

So 'legal' is the wrong category for your question. The 2nd Amendment allows the citizens to stockpile arms, which helps both justified and not justified revolutions. Finding the justification for a revolution is a moral category, not strictly a legal question.

o.m.
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    Is that my English, or are "prosecuted" and "persecuted" different things? With the just government, they would be only prosecuted. An unfair prosecution by a tyrannical government might very well be persecution. – gnasher729 Feb 08 '23 at 16:37
  • A flaw in your combinatorics is that it doesn't distinguish just vs. tyrannical revolutionary governments, though you could leave that as an exercise to the reader. Recall that any revolutionary government can itself be replaced, at which point the legal may become illegal, and vice versa. – user6726 Feb 08 '23 at 16:54
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    @gnasher729, they are different things. Copy-and-paste error, the last persecuted should be prosecuted because it is the just government doing it. – o.m. Feb 08 '23 at 19:30
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    @user6726, the nature of the revolutionary government does not really matter, unless a just revolutionary government decides that the revolution was not justified and reinstates the previous government. Which twists the brain a little too much. – o.m. Feb 08 '23 at 19:32
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    I mean that is the legal joke of "the criminal who accomplished the crime of treason will become the father or the new nation", right – Faito Dayo Feb 09 '23 at 02:44
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    This answer sounds logical but misses a very important point: 30 years later..... Germany is still prosecuting Nazis, bet they didn't expect that either ... – DonQuiKong Feb 09 '23 at 07:14
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    @DonQuiKong 30 years later, in Germany, it is effectively legal to be a Nazi as long as you don't use words or symbols associated with the NSDAP... – user253751 Feb 09 '23 at 08:44
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    @o.m. : or the cases in many communist revolutions where the new government makes a purge among its own supporters. But this might be distinct from the question, as it is more about the winning revolutionaries splintering into factions and fighting amongst each other for power. – vsz Feb 09 '23 at 09:15
  • @vsz, when I think of purges, the French revolution comes to my mind as well. But both this and the Communist purges are about doctrinal issues after the revolution, not questioning the revolution in itself. – o.m. Feb 09 '23 at 10:49
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    I'd argue that the question isn't 'wrong'. It's perfectly feasible to have a law permitting the use of violence to overthrow the government if they refuse to leave office after losing an election. (A tyrannical government might change that law, but it would still be 'legal' until then.) The question is fine, even if the answer is 'no'. – user3153372 Feb 09 '23 at 11:32
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    "Treason never prospers"

    For if it prospered it is not called treason.

     – Questor Feb 10 '23 at 16:19
  • I think it would be more appropriate to say "combinations" instead of "permutations". – Stef Feb 11 '23 at 21:52
  • "of course they are not persecuted by the new government they install" - is that assumption reliable? My impression was that the phrase "the revolution devours its children" is sometimes cited when exactly that happens in one way or another. – O. R. Mapper Feb 11 '23 at 22:56
  • @O.R.Mapper, yes, but that is about doctrinal purity after the revolution, not the act of revolution itself. Robespierre did not question that overthrowing the ancien regime was right, and neither did Stalin. – o.m. Feb 12 '23 at 05:15
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At what point "Legally", are we allowed to overthrow the government?

Never.

But, if you are successful, the government you have overthrown can't prosecute you for it, since it no longer exists.

ohwilleke
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    Other countries could decide to prosecute based on universal jurisdiction. As far as I know, no country currently applies universal jurisdiction to prosecute revolutions / coup d'états, but that could change? – gerrit Feb 09 '23 at 12:11
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    @gerrit Theoretically possible, but considering the history of genocides mostly going unpunished, it's not likely. If Putin ends up being successful in the Ukraine war, that would probably bt ehe ultimate test of this theory. – Barmar Feb 09 '23 at 15:39
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    It's also possible for a government which wasn't overthrown to recognize retrospectively that a rebellion was a legitimate response to its own transgressions. I think that happened with e.g. the Whisky Rebellion. – supercat Feb 09 '23 at 17:54
  • @gerrit: The more realistic outcome is the establishment and recognition of a government-in-exile, as happened with France during WW2, and more recently with Taiwan (these days, relatively few countries continue to recognize the latter). – Kevin Feb 09 '23 at 22:45
  • Sometimes the government overthrown survives in some form or in a lesser territory. – Mark Rogers Feb 11 '23 at 03:19
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    @supercat According to Wikipedia, 20 men were arrested for the Whiskey Rebellion, though they were considered stragglers and not the main instigators. Of those, 10 were tried and 2 were convicted and sentenced to hang. Both were pardoned by Washington, saying he did so because he believed the government should use every degree of moderation that safety permits. It doesn't appear that he conceded that the rebels were just, though maybe there is a better source showing that. – DukeSilver Feb 11 '23 at 08:21
  • @DukeSilver: Your sources may be more accurate than my sources or my memory of what they said, though my understanding is that the government tread more cautiously with its tax measures after the Whisky Rebellion than before. – supercat Feb 11 '23 at 09:14
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It is pretty much never legal to engage in a revolution against the currently established government. Not by the laws created by and supporting that government, it isn't. I am reminded of the couplet by John Harrington:

Treason nae'r doth prosper, what's the reason?
Why if it prosper, none dare CALL it treason.

The US Declaration of Independence was a political document, attempting to justify a revolution then in progress, it was not and is not a legal document, and it does not make actions similar to those undertaken by the Americans who revolted against Britain legal in future.

A revolution may be justified. It may even be morally essential. But those are judgement calls. No court, except the court of public opinion, and later the court of history, will rule on them.

There is no mechanism in existing law that states that allows for some kinds of revolution to be legal.

The Second Amendment as currently interpreted allows people to purchase and posses firearms and other weapons, and rules out most regulations of such ownership, although not all. The formal reason for this in the amendment itself is:

A well regulated Militia, being necessary to the security of a free State ...

That would suggest a possible need to call on the militia to defend the country against foreign invaders, or possibly against revolts. Nothing in it says that the purpose is to allow the people to oppose tyrannical governments. At the time the US Constitution was written, the militia was considered to be an important source of reserve military power against invasions and rebellions.

The relatively recent US Supreme Court decisions which used the 2nd amendment to overturn local gun control laws cited the need for an ordinary, law-abiding citizen to be able to defend against criminals, particularly against home invasions. That case was in the context of a law which made it almost impossible for anyone to lawfully own a handgun, even an off-duty police officer. It explicitly said that some regulation would be permitted. It did not in any way say that ownership of weapons would be useful for legal rebellion, or justified rebellion.

As the answer by o.m. says:

The 2nd Amendment allows the citizens to stockpile arms, which helps both justified and not justified revolutions. Finding the justification for a revolution is a moral category, not strictly a legal question.

I fully agree.

David Siegel
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  • It should be pointed out that many of the founders writings for why they included the 2nd Amendment were more to make the government aware of what could happen if they go too far. They found it the height of hubris to think that they could win a revolution and then deny their citizens the ability to do it again if they became the problem. – hszmv Feb 09 '23 at 13:25
  • @hszmv While I am aware of writings from that era about the possibility of future revolutions, I am not aware of any such writings that mention the 2nd amendment, or any drafts or proposals forth3e same. I believe that the actual genesis of that was a dispute over the potential funding of local militias, seen as a needed reserve for future invasions, and the putting down of "civil disorder" Certainly when the "Whiskey Rebellion" occurred, many of the framers supported the measures taken by G Washington to suppress it. If you have sources worth consulting, pl;ease cite them. – David Siegel Feb 09 '23 at 14:24
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    I believe the Anti-Federalist Papers and writings from Thomas Jefferson. At the time, "militia" was not a part of the military but referred to the body of citizens who were capable of taking up arms to defend the community. They were more law enforcement than standing military (at the time it was men 16-60 who were able bodied and were generally not organized by the Federal Government (or even state) but the local community. The "Sheriff's Posse" is a more modern idea of what militia meant in the late 18th century. They certainly weren't funded. – hszmv Feb 09 '23 at 14:55
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    @hsmv I have read the Anti-Federalist papers, but not all of Jefferson. You describe the militia fairly well. They were not part of the military as such, but were called on to support and assist the military in cases of emergency. Funding was provided by he central (later federal) govt for arms (cannon and powder, largely) to be used by the militia in case of an emergency. Remember that in the 1700s "arms" meant specifically military weapons, not personal firearms. The Posse actually dates back to the ancient English "Hue and cry" to pursue thieves & other criminals: cry of "stop thief". – David Siegel Feb 09 '23 at 15:23
  • I'll have to get back to you on specific documents. I know Jefferson did say words to effect that private sailing ships buying cannons for the purposes of self defense was the intent of the 2nd Amendment when he was asked by some sailors who were confused on if they could buy cannons for their private sailing vessels. At present, I can't commit to tracking down the references in my notes. – hszmv Feb 09 '23 at 15:30
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The answer to this question depends on one's perspective about what the law is.

Through the positivist lens, a revolution against a government (assuming such government has at least formally enacted rules against such acts) will always be illegal. For example, Bentham and Austin both asserted that "it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law" (HLA Hart, "Separation of Law and Morals", Harvard Law Review (1958), p. 599). However, Hart would also argue that just because something is a law need not entail it is to be obeyed (ibid, p. 618).

Natural law theorists (e.g. Lon Fuller) would require that for something to count as a law, it must adhere to basic principles of legality, some of which would include basic principles of morality. One could say, "This thing is the product of a system so oblivious to the morality of law that is not entitled to be called a law." (Lon L. Fuller, "Positivism and Fidelity to Law: A Reply to Professor Hart", Harvard Law Review (1958), p. 661).

Jen
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-1

It is never legitimate to overthrow a legitimate government, except via means prescribed thereby (e.g. elections), but not all groups of people claiming to have legitimate authortity, actually do.

One could view a document like the Constitution as a sort of "instruction manual" for the government, which citizens should use in case of uprising to determine when they should support the legitimate government in putting down unlawful rebellious actions, and when they should protect fellow citizens against lawless actions by rogue government personnel.

supercat
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    This answer leans pretty heavily on the word "legitimate" without attempting to define it. It would be more useful if it did. – MJ713 Feb 10 '23 at 19:57
  • @MJ713: If some group X rebels against the actions of some other group Y, those who view the actions of Y as legitimate will likely view the actions of X as illegitimate, and vice versa. Normally, this means that the legitimacy of a rebellion will depend upon whether they vanquish the group they were fighting against, thus eliminating any opposition to the claim that the opposed group was illegitimate. There are exceptions, though. In some cases, a rebellion will cause a government to admit that some faction of it exceeded its authority. In a situation like the Battle of Athens, TN,... – supercat Feb 10 '23 at 21:07
  • ...an armed group of citizens prevented local government officials from taking ballot boxes to an out-of-sight location. If memory serves, the situation was resolved when National Guard troops arrived and allowed the ballots to be protected against possible tampering until outside vote counters arrived and determined that the local officials had been voted out. – supercat Feb 10 '23 at 21:11
  • Art. 20 GG in [tag:Germany] is explicitly counter to your first paragraph: you assert a negativity, I can point to a constitutional provision of a country that makes it legal to overthrow any government that seeks to abolish the constitution, even if that government came into power legitimately. – Trish Feb 11 '23 at 23:34
  • @Trish: If a government comes to power legitimately but then seeks to abolish the constitution, would not the government cease to be legitimate as a result of such action? – supercat Feb 12 '23 at 06:49
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Since it has not been touched on with other answers. Law and legal is based on the premise of a sovereign and the sovereign having a monopoly on violence. In a successful revolution, a new sovereign is created and hence the previous monopoly has ended. The new sovereign now decides law and legality, if it has the power to do so.

Revolution usually also suggests that the sovereign has lost lawgiver status due to acting contrary to natural law.

Another point in revolutions, not all have to be full out jacobinistic. e.g. All previous key holders (holders of powers) need not be killed. e.g. Bloodless coup.

paulj
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Most governments see themselves as good governments. And they might have laws that make it legal, perhaps even required, to overthrow a bad government. Of course it's not legal to overthrow the current government, since they are good.

Now a bad government comes into power. Of course they don't want to withdraw that law and basically proclaim that they are a bad government that way. So the law remains. Since they are a bad government, overthrowing the government is legal, perhaps even required.

Of course if you want to make use of that particular legal right, you risk being shot or worse.

gnasher729
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