Saturday, January 4, 2014

Armed Rebellion and the Rubber Hits the Road: The Civil War and Ordinances of Secession

So, after a period of distraction, I am back to my old subject, the Second Amendment and armed rebellion. I was initially inspired to post on the subject by David Frum in his own discussion of the subject.  In past posts, I addressed how the subject was discussed at the Constitutional Convention, how the Federalist Papers condemned armed rebellion, how they proposed to deal with the dangers of a standing army without armed rebellion, and even when they affirmed the right of revolution, it was in the context of state militias commanded by state governments, not every man and his gun.  Finally, I addressed the Anti-Federalists' lack of enthusiasm for armed rebellion and how the Founding Fathers reacted to actual armed rebellion against their government.

I should probably while I am at it throw in a post on the Mormon Rebellion of the 1850's and carefully study all the pronouncements of the day, to see if even one of them suggests that the Mormons' actions were justified by the Second Amendment.  But, to be honest, it seems like more trouble than it is worth, so I will stick to the greatest acts of armed resistance to the US government, the Civil War and the Ku Klux Klan afterward.

When the various states seceded from the US, they published Ordinances of Secession.  These Ordinances are not much, simply statements that they are seceding, but they are at least a starting point.
  • South Carolina declared that its prior ratification of the US Constitution was repealed.  No theory of the right of secession is given here, but implied is that the states came into the Union voluntarily and could leave voluntarily.
  • Mississippi, not being one of the original 13 states that ratified the Constitution, cited the Constitution to release all officials from their oaths to uphold the US Constitution (required by Article I, Section 7) and said that rights under federal law remained in force to the extent not contradicted by the Ordinance.
  • Florida simply declared secession
  • Alabama attributed secession to the election of Lincoln, "by a sectional party, avowedly hostile to the domestic institutions and to the peace and security of the people of the State of Alabama, preceded by many and dangerous infractions of the constitution of the United States by many of the States and people of the Northern section" and called for a convention of the slave states to found a new union.
  • Georgia, another of the original 13 states, had much the same resolution as South Carolina.
  • Louisiana, though not one of the original 13 states, also rescinded is ordinance adopting the US Constitution in 1811 and declared all federal laws not inconsistent with secession still in effect.
  • Texas referred to the US Constitution as a "compact" that Texas had ratified in 1845 and declared that the federal government was not keeping the terms of the compact, and that Texas was therefore withdrawing.  In true Western, frontier style, it did not satisfy itself with an ordinance of secession by a convention, but submitted to ordinance to the people for referendum.
  • Virginia said that their ratification of the US Constitution stated the condition that they reserved the right to withdraw it if the powers of the federal government were "perverted to their injury and oppression."  Since the federal government's powers had been so perverted, Virginia was withdrawing.
  • Arkansas said that they had previously passed a resolution to "resist to the last extremity" any attempt to coerce a seceding state, and also that Arkansas had voluntarily adopted an action joining the union and was now voluntarily revoking it.
  • North Carolina, another of the original 13 states, said that ordinance adopting the US Constitution was withdrawn.
  • Tennessee declined to express an opinion on the "abstract doctrine of secession," but "asserting the right, as a free and independent people, to alter, reform, or abolish our form of government in such manner as we think proper, do ordain and declare that all the laws and ordinances by which the State of Tennessee became a member of the Federal Union of the United States of America are hereby abrogated and annulled."    It then released all officials from their oath to uphold the US Constitution and declared all US laws still in force to the extent not contradicted by the ordinance.
Finally, although neither Missouri nor Kentucky seceded, both apparently had ordinances of secession that were not adopted.
  • Missouri declared, "Whereas the Government of the United States, in the possession and under the control of a sectional party, has wantonly violated the compact originally made between said Government and the State of Missouri, by invading with hostile armies the soil of the State, attacking and making prisoners the militia while legally assembled under the State laws, forcibly occupying the State capitol, and attempting through the instrumentality of domestic traitors to usurp the State government, seizing and destroying private property, and murdering with fiendish malignity peaceable citizens, men, women, and children, together with other acts of atrocity, indicating a deep-settled hostility toward the people of Missouri and their institutions," it was therefore seceding.
  • Kentucky had a similar but longer declaration, declaring that the US government had exceeded its limits under the powers enumerated in the Constitution and generally denouncing the war underway as an act of despotism.
It should be noted that, with the exception of Mississippi citing Article I, Section 7 requiring state officials to take an oath to uphold the US Constitution, none of these ordinances contain any specific cites to the US Constitution. All the Ordinances are brief and none set forth any theory in detail.  Nonetheless, South Carolina, Georgia, Louisiana, Virginia and North Carolina all imply that they voluntarily entered the Union and are free to leave at will.  Texas is explicit on the subject.  Arkansas, which seceded late, only after Lincoln had started to use force, denounced that force as tyranny and used it as grounds for secession. Missouri and Kentucky did not secede, but offered Lincoln's use of force as justification for secession.  And Tennessee did not claim constitutional authorization for its action, but appealed to a natural right of revolution.

What none of these ordinances cited was a constitutional right to keep and bear arms, carrying with it an implied constitutional right of armed rebellion.

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