At what point is it "legal" to overthrow the government?

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?

• united-states
• us-constitution

As flippant as it may be. @xngtng is the most succinctly correct. Legality is a not a core component of revolution. Victory is.

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."

@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, . )

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?

7 Answers 7

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.

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, they are different things. Copy-and-paste error, the last persecuted should be prosecuted because it is the just government doing it.

@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.

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

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 .

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

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

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 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.

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.

@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).

@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.

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.

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.