The history of the United States Insurrection Act is mirrored in black and white.
Congress created the Act to deal with threat of slave rebellions. Then, President Ulysses S. Grant used the act to quell the KKK and other attacks on freed blacks during Reconstruction.
In 1856 President Franklin Pierce used the Insurrection Act to disperse lawbreakers in Kansas at the request of territorial governor Andrew Reeder. Violent agitators from Missouri crossed state lines to intimidate Kansas residents into voting for slavery to be authorized within the state, afraid they would lose their “property” to a neighbor free state.
LBJ called up the Act to defend black Americans during the civil rights movement against white supremacists and segregationists. A generation later, George H. W. Bush invoked the Act when some African Americans protested and rioted in the wake of the police beating of Rodney King in Los Angeles in 1992.
Yet, the Insurrection Act was not invoked against white anti-democratic rioters during an actual insurrection attempt at the very heart of government.
Instead of naming J6 rioters “insurrectionists,” including those who violently attacked police and security officers, Trump pardoned, praised as patriots, and even paid some of them with taxpayer money.
Allen writes, “after a mostly white mob stormed the U.S. Capitol on January 6, 2021, and threatened to disrupt the Electoral College certification of the presidential election, beating a Capitol Police officer in its midst, some Republican spokesmen were loath to call its participants 'insurrectionists.' Donald Trump himself characterized the Capitol rioters as posing 'zero threat, right from the start,' and went on to state that 'some of them went in, and they are hugging and kissing the police and the guards,' and that they were waved in and out of the Capitol by said police.”
“So, what's in a name? An ‘insurrectionist,’ by definition, is someone who has engaged in an act or instance of revolting against a civil authority or an established government. However, many of those participating in the riots on that fateful January 6 considered themselves to be ‘patriots,’ by definition vigorously supporting their country and prepared to defend it against enemies and detractors. Among such rioters, as indicated by the subsequent indictments, were members of the Oath Keepers; some of them reportedly directed fellow Capitol infiltrators toward the Senate wing in order to stop the certification of the presidential election.”
Allen explains:
“It's true that the Insurrection Act does not need to be invoked by the president in order to authorize federal military intervention in the District of Columbia, which lacks statehood. However, as commander in chief of the D.C. National Guard, the president and his administration could have directed that this be done once riots were sparked at the Capitol. Although local commanders of the National Guard are invested with the limited authority to take immediate military action in certain emergency situations where there is not sufficient time to obtain the requisite approvals, in the case of the ‘Stop the Steal’ rally the Pentagon had restricted the authority of the D.C. National Guard commander before the riot, requiring higher-level sign-off in order to take such immediate action.”
Deviating Military Power
Race was again in the forefront when President Trump wanted to use the Insurrection Act during his first term, even asking then Chairman of the Joint Chiefs of Staff General Milley and Defense Secretary Esper to consider having the military fire upon protesters.
“Trump's threatened invocation of the Insurrection Act during the George Floyd protests incited an uproar among numerous commentators who decried the federal government's use of military power against its ‘own people.’ The use of federal troops as a civilian police force, according to many commentators at the time, is an unwarranted trespass on the rights and freedoms of American citizens and contravenes the values upon which the United States was founded.”
Trump continues to threaten to call up the Insurrection Act and activate the military against U.S. civilians who oppose him and protest against his policies. In 2025 he has deployed armed forces in American cities as he moves closer to what historians warn would authoritarian rule, away from states’ rights federalism and toward autocracy.
This week U.S. senators and representatives implored the military: “Don’t give up the ship” and to follow their oath to the Constitution in upholding the rule of law. They called for military service members to follow only legal orders, not illegal ones. In a social media post, Trump texted “SEDITIOUS BEHAVIOR, punishable by DEATH!” He also re-posted comments calling for the veterans to be punished with death, including hanging. Later he attempted to downplay his actions.
It is said to be the first time, at least in modern times, that a president explicitly incited violence against members of Congress. In the days following Trump’s text, veterans such as Senator Mark Kelly announced they have received death threats from Trump supporters.Senator Mark Kelly, Navy Captain (ret.)
Trump’s words against the senators and representatives recalled explicit and implicit threats to deploy the military against the president’s opponents and U.S. citizens in general, including as conceived in the “Navy SEAL Team 6 assassination theory” presented in the Supreme Court ––as well as via the Insurrection Act.
“It is true that the military power set forth in the Insurrection Act is an extraordinary exception from the normal state of federal affairs,” Allen writes.
“The power, among other things, upends the conventions of federalism, in line with which domestic deployments of the ‘militia' — or the modern-day National Guard –– are authorized by the state governor. This power also represents a significant departure from the constitutional aversion to standing armies, which some framers feared would result in the arbitrary use of force against civilians and thereby re-create the same sort of authoritarian menace, in the form of the British Army, that American revolutionaries had just sought to free themselves from. The Insurrection Act, then, is both an exception and a rule—it represents a radical deviation from the principles of federalism and aversion to using military forces to police civilians, while authorizing a purportedly necessary use of federal military power to restore ‘law and order’ amid a domestic crisis.”
Allen contends that the term “insurrection” is ill-defined, leaving the power of interpretation to the president, who may see protests and crises through a racial lens or “mirror.”
“An insurrection, under the Act, is a definitional vacuum waiting to be filled by the executive. The incidents taken to warrant domestic federal military intervention betray just as much, if not more, about the predilections of those wielding power as they do about the threatening nature of such events. From Nat Turner's rebellion to violent clashes over slavery in ‘Bleeding Kansas’ to white paramilitary resistance during Radical Reconstruction to the desegregation of public schools in Alabama, Arkansas, and Mississippi to the Los Angeles ‘riots’ in 1992, the events across history that have been interpreted to warrant the domestic deployment of federal troops under the Insurrection Act reveal a pattern: the prevailing invocation of the Act, on the one hand, to suppress revolts against the slave system and so-called race riots, and, on the other, to enforce the civil rights of African Americans. So, although what constitutes an insurrection is technically undefined in the text of the Act itself, the term has been defined in practice through its historical application. What has been interpreted to constitute an insurrection is a mirror reflecting the ongoing and often bloody battle to fully incorporate black Americans into the citizenry of the United States —a struggle that, in this light, appears more like an open-ended civil war than a history of ‘progress.’”
Again, race plays a role in how and when the Act is invoked –– and by who is in office.
“An ‘insurrection,’ however, is also defined by omission. Where the Trump administration, for example, threatened to invoke the Act in response to nationwide demonstrations against police brutality, the same inclination was nonexistent in response to, say, deadly protests in Charlottesville, North Carolina, by white nationalists, or to the storming of the Michigan state capitol by armed mostly white men protesting ongoing COVID-19 pandemic lockdowns. Although the Insurrection Act does not need to be invoked for the president to deploy the D.C.
National Guard or federal troops within the District of Columbia, the absence of any military presence during the riots –– or, as commentators called it, the ‘insurrection’ —at the Capitol on January 6, 2021, was certainly glaring. As commander in chief of the D.C. National Guard, it is clear that Trump and his administration could have authorized its deployment-that is, if they actually interpreted the riot to be a threat to law and order.”
Allen notes the “scant use of force” used by police in incidents brought on by armed and mostly white demonstrators not only on J6, but also in Lansing, MI and Charlottesville, VA, compared with excessive use of force against unarmed protesters who are not white.R.E. Lee monument
“One obvious parallel involves the 2017 rally held in Charlottesville, Virginia, to oppose the proposed removal of a statue of Confederate General Robert E. Lee, which drew counterprotesters who gathered to oppose the many white nationalists and neo-Nazis parading on that day. Refusing to denounce the white nationalist contingent at the rally, Trump remarked that there were "very fine people on both sides." Of course, it was at this rally that a white nationalist drove his car into a group of counterprotesters, killing a young activist named Heather Heyer. The violent nature of the rally attendees, however, was not limited to this deadly attack.”
The mirror of unequal treatment via the Insurrection Act shines a light on other signs of growing white supremacy in and out of the military: renaming bases after actual seditionists of the Confederacy, reinstalling monuments to Confederates, downplaying the history of slavery, and removing blacks and women from top leadership positions in the military. These are just some of the obvious examples.
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