Sunday, January 30, 2011

Insurrection and Assembly: Reflections on the Revolution in Egypt

By Mike Dorf

In District of Columbia v. Heller, Justice Scalia, writing for a majority of the Supreme Court, identified self-defense as "the core lawful purpose" of the arms that the People are entitled to keep and bear in their individual capacities.  The ruling thus vindicated an individual right view of the Second Amendment, but not the individual right for which many gun enthusiasts had long agitated.  They had argued that the right to keep and bear arms may have been incidentally useful for self-defense but that its core purpose was insurrection.

Although I am on record as expressing doubt about the historical basis for any individual right view of the Second Amendment, I would say that there is better historical evidence for the insurrectionist view than for the self-defense view.  Most prominent is Madison's Federalist No. 46.  In the course of explaining why the People ought not to fear an overreaching federal government, Madison argues that the federal government will be reined in by the States if the former attempts to exceed its constitutional limits.  He first calculates the maximum strength of the federal standing army at no more than 30,000.  He then states:
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
Now I don't think this passage establishes the individual  insurrectionist view of the Second Amendment because it's clear that Madison is imagining state-organized resistance to the federal government, but it's at least possible to argue that in light of statements of this sort, the core purpose of the Second Amendment was to protect a right of individual firearm ownership so that firearms could be used by the people in their state militias when fighting against the national army.  There's nothing nearly this specific in the Founding era documents with respect to a right to personal self-defense.  The best that Justice Scalia can do in Heller is to cite state constitutional provisions from the period, most of which are clearly discussing the common defense, not individual self-defense.

To be sure, that absence of direct evidence doesn't prove Heller is wrong.  The Court's main move is to say that it doesn't really matter what the main purpose of the Second Amendment was; its language includes a right to self-defense.  I tend to think that this analysis is flawed, but I want to bracket that disagreement here.  (I do think there was a common-law right to self-defense and that much of it should be understood as having been constitutionalized, but that's a story for another day.) Instead, I want to ask why the insurrectionist view of the Second Amendment--which is quite prominent in some of the writing of the scholars responsible for the modern resurrection of the Second Amendment--is invisible in Heller.  (The word "insurrection" occurs twice in Justice Scalia's Heller opinion, and in both places he is talking about the value of an armed militia for suppressing insurrections.)  The answer, I think, is that the insurrectionist view seems nuts to all of the Justices.   Simply put, the idea that the Constitution would protect the right of the people, on their own initiative and acting contrary to or at least without any government authority, to take up arms for the purpose of revolution, appears to make the Constitution a suicide pact.

And yet recent events in Egypt have gotten me thinking that perhaps the Constitution is a suicide pact in just this way--and not simply via the Second Amendment but via the First Amendment as well.  Thus, it may be useful to think hard about why exactly an outdoor rally is an effective means of making a point.

Partly it's a show of strength.  When hundreds of thousands of people turn out for an anti-war, civil-rights, anti-tax, or other political rally, they demonstrate not only that there are a lot of people who hold their view but that there are a lot of people who hold their view intensely.  Rallies and marches register preferences in ways that opinion polls do not.

But that's not all that they do.  A peaceful rally or march is also a ritualized threat of something much more serious.  Larry Kramer's The People Themselves describes how in both England and the colonies, "mobbing" was an accepted form of political activity, and though Kramer says that there were understood differences between mobbing and rioting, both involved violence.  As Kramer notes, mobbing fell out of fashion very early in American constitutional history, as popular energy was channeled into parties, but it is not difficult to understand how the generation that had just fought the Revolutionary War would think it perfectly natural to protect a right of the people to gather out of doors, even if what begins as a peaceful rally eventually turns bloody.

Of course, the First Amendment, by its terms, only protects a "a right of the people peaceably to assemble," (emphasis added), and then only so that they may "petition the government for a redress of grievances."  Once the people turn violent, or demand not that the existing government redress their grievances but that it succumb to immediate regime change, the government can respond with force.  Thus, it cannot really be said that the First Amendment protects a right of insurrection.

But it may go quite a way in that direction in its practical effect.  Because the government is forbidden from banning mass demonstrations so long as the demonstrations are peaceful, the police and military may be unable to put the lid back on a large demonstration that begins peacefully and turns violent.  In a country with a long tradition of democracy, it's hard to imagine a truly mass movement turning violent in this way while retaining the support of the majority, but that's because it's so unnecessary: However flawed our democracy, the people can turn very unpopular leaders out of office at the ballot box; thus they needn't resort to the mob.

None of this bears directly on Egypt, where the people have no right of assembly, peaceable or otherwise.  But there too, we can see the logic of critical mass at work.  We still don't know how things will end in Egypt, but if Mubarak is forced from power, it may well be because he did not crack down immediately.  Having not taken sufficiently brutal steps to prevent the people from more or less peaceably assembling, he will have left himself without the ability to stop them from using force or the threat of force to remove him.  As a matter of international law, freedom of assembly may be a universal right, as President Obama observed, but as a matter of facts on the ground, it is hardly surprising that autocratic regimes generally do not recognize it.  They can't afford to.

By contrast, a functioning democracy can afford to grant the people the right to assemble because they are not likely to turn into a mob, and if they do, the police and armed forces will remain loyal to the government, as the mob loses general public support.  The First Amendment is not a suicide pact after all.


Unknown said...

"The best that Justice Scalia can do in Heller is to cite state constitutional provisions from the period, most of which are clearly discussing the common defense, not individual self-defense."

As I'm sure you're aware, Article 1, Section 21 of the Pennsylvania Constitution states fairly unambiguously, "The right of citizens to bear arms in defense of themselves and the State shallnoo be questioned."

Scalia's explanation of Second Amendment guarantees is wimpy at best, IMO.

Michael C. Dorf said...

Thus my use of "most" rather than "all."

Patrick S. O'Donnell said...


OK, you perked my interest about the socio-economic and political uprising in Egypt but then...precious little by way of reflections on same!

[I've put together two collections (for Tunisia and Egypt respectively) of articles from the mass media, blogs, and journals for the Jasmine Revolution and recent protests, including background material, I'll send to anyone interested.]

Michael C. Dorf said...

Sorry Patrick,
I should have sub-titled the post "Reflections Inspired by . . . ." The truth is that I haven't any expertise on what's happening in Egypt. I know from reading about and watching other popular revolutions against autocrats that sometimes they go well and lead to genuine democracy, while sometimes they create a power vacuum into which step non-democratic forces that may be worse than what came before. I don't think anyone knows what direction things will ultimately go.

Joe said...
This comment has been removed by the author.
Joe said...

The idea that state militia provides a check on federal power underlines something raised in passing by Walter Dellinger in the oral argument but otherwise not addressed by anyone but the dissenting judge below: how a law involving D.C. (not even a federal territory alone) might be a special situation.

[if addressed, and maybe the court below answered the dissent, it surely isn't covered by the SC except perhaps in passing]

Michael C. Dorf said...

I was one of several lawyers who mooted Walter before the oral argument, and thought his point about DC was very interesting, but I was not ultimately surprised that the Supreme Court ignored it: Modern law tends to treat DC either as just another state or as a place where the feds get to enact ordinary federal legislation. I'm not saying that's justified, but the Court would have been disappointed in some fundamental sense if the outcome turned on DC's status.

Publius the Clown said...

Hi, Professor Dorf--I agree that the majority in Heller went too far when it declared that the Second Amendment conferred an individual right to own firearms for the purpose of self-defense. The text of the Amendment clearly refers to a militia-based purpose, and the history to which Justice Scalia refers is too vague to overcome the text itself.

But for the same textual reason, I do think that the Second Amendment, as you put it, "protect[s] a right of individual firearm ownership so that firearms could be used by the people in their state militias when fighting against," inter alia, "the national army." In my view, the evidence for the individual rights component of that statement comes from the use of the phrase "right of the people" in the Amendment. (I suspect that this is the component that you mainly take issue with.)

And the insurrection component of that statement (which, I think, you are more likely to agree with) arises, as Professor Amar has argued, from the fact that the Founding generation had indeed just used state militias to rise up against the central government. (By the way, although you're right that Justice Scalia's majority opinion in Heller doesn't focus on the insurrection justification, he does refer to "the existence of a 'citizens' militia' as a safeguard against tyranny.")

So I agree that insurrection against a tyrannical central government was at the forefront of the Founders' minds. You're absolutely right that, in modern-day America, the thought of forcibly rising up against the federal government is rather silly (when it's not dangerous, McVeigh-style). But when the Founders embarked on the American experiment, they didn't know whether the constitutional checks on the power of the federal government that they had provided would be sufficient.

So I agree with your fundamental point: that in a functioning democracy, the First Amendment and the Second Amendment don't amount to a suicide pact. Whereas in modern-day Egypt, providing those rights might be fatal to the regime. The insight of the American Founders was that, if the First and Second Amendments ended up amounting to a suicide pact, that would be because the existing regime wasn't worth preserving.

Joe said...

Still, it is surprising that even the dissents, who provided a narrower view of the 2A's reach, seemed to basically ignore the point, which provided a way out. After all, the dissent below relied on the matter. And, one might think it would merit at least an extended footnote or something given the federalism purpose of the 2A is a major thread of the state rights side.

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Even if one thinks that it's okay for the government to order everyone to see the doctor, an order to exercise does appear to go to far. It looks a lot like conscription, which, if justified in wartime, is still extraordinary. Further, it is not clear how a mandatory exercise regime could possibly be enforced absent something like Orwellian surveillance.

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Biber said...

As I'm sure you're aware, Article 1, Section 21 of the Pennsylvania Constitution states fairly unambiguously.

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