Friday, January 08, 2021

There is No Constitutional Right of Armed Assembly

 by Michael C. Dorf

In October 2020, I participated in a terrific all-day conference on the Second Amendment sponsored by the Duke Center for Firearms Law. Papers by the panelists will be published in the Northwestern University Law Review. With final versions due to the journal's editors this week, I recently put the finishing touches on my draft. The timing was fortuitous because an advance copy of my draft became available this week. My paper bears the title When Two Rights Make a Wrong: Armed Assembly Under the First and Second Amendments. It went live on SSRN (where you can download it) on the afternoon of Wednesday January 6, just as a mob of Trump-incited seditionists were attacking the U.S. Capitol.

As terrible as the January 6 insurrection was, it could have been much much worse. Capitol police responded to the mob with tear gas and, in one fatal incident, live fire. Although many people have understandably asked why police did not respond with greater force--especially given the more aggressive tactics used against Black Lives Matter demonstrators last summer--it is hardly clear that more force would have quelled the seditious Trumpsters, at least some of whom were heavily armed.

One can only imagine what might have unfolded if Wednesday's confrontation had occurred in, say, the Michigan Statehouse, where anti-government protesters were legally permitted to carry firearms last spring. Perhaps we should count ourselves lucky that the mob was cleared in hours rather than resulting in an armed standoff requiring days or weeks and much more bloodshed to end. The District's strict firearms laws and its high-profile arrest earlier in the week of Proud Boys leader Enrique Tarrio on property destruction and weapons charges may have deterred many of Trump's shock troops from bringing and/or using firearms.

But wait. What about the constitutional rights of the mob? Is there a right of private citizens to take firearms into the Capitol building? Thankfully, the Supreme Court's ruling in District of Columbia v. Heller makes clear that the answer is no. Justice Scalia wrote there that the Second Amendment does not invalidate "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

Yet the very idea that laws may validly ban firearms in "sensitive places" implies that they may not do so in most other places. Combine that idea with the First Amendment right to assemble and there is at least a superficially plausible claim that groups do have a constitutional right to gather armed on the National Mall or similar "non-sensitive" venues. And once they are assembled armed, it may be only a matter of time until they create mayhem there or elsewhere.

My new article argues that that superficially plausible yet dangerous claim is wrong--even if we assume (as the conservative majority of the Supreme Court seems poised to hold) that there is some right of individuals traveling alone to carry firearms. Here's the abstract:

This Article rejects the proposition that the First Amendment right to assemble and the putative Second Amendment right to public carriage of firearms in non-sensitive places combine to create a right to armed assembly. It argues on textual, historical, doctrinal, and normative grounds that there is no constitutional right of armed assembly. While acknowledging that in some circumstances the courts recognize a hybrid right that is greater than the sum of its parts, the Article finds no basis for concluding that the First and Second Amendments add up to a right to armed assembly.

I wrote the article in a way that I hope will be persuasive to conservatives as well as liberals. Whether it will be remains to be seen. 

There is talk of the January 6 insurrection breaking the fever of Trumpism. I certainly hope it does. But let's be clear that even if the volk Trump has heretofore led find another leader, they are unlikely to abandon their affection for firearms and the ostensible right of armed groups to use them to intimidate government officials. Long before Trump "joked" that "Second Amendment people" might be able to do something to stop a President Hillary Clinton from picking liberal judges, Sarah Palin, Sharron Angle, and other GOP leaders and would-be leaders talked of "Second Amendment remedies" without any intended (or actual) humor.

With a clear majority of Republican House members voting to reject certification of two states' duly chosen electors based on debunked conspiracy theories even after the mob nearly destroyed the Capitol, it's a little premature to say that the institutional GOP has now rejected Trumpism. Republicans have at best rejected an insurrection on behalf of Trump. Insurrectionism--the notion that the People have a right to possess and use firearms not merely for protection against criminals but to overthrow the government--remains a component of the modern GOP's ideology. Even GOP Senators who have some principle or count as moderate by contemporary standards--like Lisa Murkowski and Mitt Romney--proudly brag about their opposition to gun control.

To be sure, when Republican elites say they support the Second Amendment, they speak in terms of individual self-defense, hunting, and state rather than federal responsibility. But their bottom-line position aligns fairly well with the wish-list of the insurrectionists who make up the rank-and-file.

In one of the best law review articles ever written, Prof Reva Siegel persuasively argued that the 1990s excesses of the militia movement--especially the Oklahoma City bombing--led legal elites on the right to back away from insurrection against the government as the core of the Second Amendment and to adopt individual self-defense as its core. The Heller decision, despite its faux-originalism, is the culmination of that progression.

Let us be clear, however, that what Siegel described was a transformation in the thought of legal elites, not the masses on the right or their most demagogic spokespeople. As we saw in the post-election litigation over the last few months--when Republican-appointed federal judges and justices uniformly rejected the incompetent and frivolous claims of Trump and his allies--there is a substantial gap between what conservative legal elites think and what rank-and-file Republican voters think.

So long as elected GOP officials fear and pander to their base--as the House vote on Arizona and Pennsylvania elector certification shows they do--we can expect the Republican Party to support policies that give oxygen to insurrectionism. Thus, it's not enough to persuade conservative elites that there is no support in the First or Second Amendment for armed mobs to assemble, as I hope my new article will persuade them. One must somehow reach the rank and file who do not read law review articles.


Michael A Livingston said...

Maybe just me, but as a non-constitutional scholar, I would be interested in hearing more about the historic use of the terms insurrection, rebellion, treason, sedition, etc. and the relationship between them. How many of these are legally defined terms, and how many of them are colloquial in nature? These terms are flying around fast and furious in the last three days and, with the exception of Dorfonlaw, of course, I am not sure all the users are being very exact in their definition. I would add the obvious point that these terms are capable of manipulation so one should be careful about creating precedents here.

kotodama said...

I've been lucky enough to spend a not insignificant amount of time in some other countries where guns aren't considered a species of emotional support animals. Even a single person just casually strolling around doing open carry, to say nothing of an armed mob of hooligans occupying a statehouse or capitol, would be viewed in those countries as completely off their rockers. And rightly so I think.

It's not like guns are 100% forbidden in those countries either. You just have to (1) demonstrate--surprise, surprise--a genuine, non-frivolous need and (2) actually undergo rigorous and extensive training and certification. So, for example, people have been known to get rifles for legitimate hunting activities. But a handgun just because it makes you feel macho and cool? Out of the question. Maybe it's not surprising that these countries also tend to be quite strict about drivers license qualifications. That being another potentially dangerous/fatal activity. And guess what? You feel--and in fact are--much safer both on the sidewalk and the roads there!

But I guess we just can't have nice, non-insane things in this country.

I'm looking forward to the article, Prof. D.

Henry Baker said...

“Although many people have understandably asked why police did not respond with greater force--especially given the more aggressive tactics used against Black Lives Matter demonstrators last summer”

Professor Dorf, I simply don’t understand this sentiment. Last summer, an armed coalition of BLM and antifa seized a 6 block area of a major American city, expelled all lawful authority, erected roadblocks to keep the authorities out, and declared themselves to be an “autonomous zone.” By any definition this was domestic insurrection. This situation was allowed to endure for almost a month before the government took any action. To my knowledge (and happy to be corrected on this point) no one involved in that has been charged with insurrection, and Congress did not leap into immediate action to permanently place all involved on the no-fly list.

President Trump’s actions the last few days have been utterly contemptible. No one can dispute that in good faith. But the implication that BLM was, by contrast, dealt with swiftly and harshly by the authorities is hard to square with everything that we all witnessed all summer.

Joe said...

The reference to BLM makes sense as applied specifically to D.C. in a clear apples to apples comparison. Prof. Dorf is but one of many who compared the two.

Note that an actual invasion of the U.S. Capitol is a step beyond what the BLM did. I myself see it as quite next level. This in no way handwaves it as "fine" or anything. But, the U.S. Capitol was invaded. It is simply not the same thing.

And, reports (I'm very open to a "wait and see" attitude here to get full accounting, but to give an immediate flavor) are that the police went quite easy on the protesters as compared to others. This includes how other protests resulted in hundreds of arrests, immediate strong tactics against protesters, stronger police responses generally etc.

A range of people who have reported on BLM type protests have voiced the same sentiment as Prof. Dorf. At the very least, maybe one can "simply understand" the "sentiment" even if one disagrees.

To give a sense, here is a CNN comparison.

One can disagree but not sure about simply not understanding. It might help to go by what was said -- "more aggressive tactics." Not "enough by my lights to address the situation." (paraphrase).


As to the article, which was good, Presser v. Illinois comes to mind. That involved an armed march. I'm also reminded of the 1A speaking of "peaceable" assembly. I think the 2A was originally understood to protect state militia. Private carry was protected as a separate right, one with limits. As Justice Alito noted in McDonald v. Chicago, there was a changing understanding and the 14A is more concerned with self-defense.

The article is helpful with current controversies, including carrying guns near polling centers.

Henry Baker said...

During the BLM protests in Washington over the summer rioters breached White House security. None of them were shot and killed.

The apples to apples comparison is that when BLM/antifa attacked the seat of American government, the authorities managed to secure the area without inflicting fatalities.

Michael C. Dorf said...

As Joe notes in response to Henry Baker's non sequitur, Portland is not D.C. In case there was any doubt, I did not mean to imply otherwise. My reference to "police" was a reference to this police force. But thanks for the concern trolling.

Michael C. Dorf said...

Also, w/r/t the follow-up trolling, my whole point was that it probably made sense to avoid use of armed force as much as possible.

Rob Strodtman said...

To pile on: the Portland/Seattle "occupations" or whatever we call them did not concern areas where extremely sensitive national security information is kept.

Congressional scifs, computers of those on intelligence committees, etc. could be/were all compromised by the Trump seditionists. If there was even one competent foreign agent in the group that accessed the capitol we have a serious intelligence failure with unknown implications. Violent and uncontrolled ingress into the capitol is multiple orders of magnitude more serious than what Mr. Baker concern trolls about.

To that end, I slightly disagree with Prof. Dorf to the extent that I think as a national security matter more swift lethal force may have been justified to protect certain areas in the building. A mob can't try to break into Fort Meade or CIA HQ and think it won't be met with deadly resistance to protect the national security interests of the USA. Well many of products of those locations work could have been compromised January 6.

Scott said...

“Under no pretext should arms and ammunition be surrendered; any attempt to disarm the workers must be frustrated, by force if necessary.” -Karl Marx. Thank God we have woke conservative elites in the judiciary to protect us from the masses.

Joe said...

The 12:46PM comment addresses something that has been addressed by others & with all that is involved is somewhat easy to miss.

This is pretty scary. By this point, twenty years after an attack on a national building [the fourth plane might have hit the Capitol or something too], concerns about foreign involvement is rather easy to imagine. Ditto concern about bombing of federal buildings and so forth. Plus, there are reports of plan to protest the Inauguration.

This should factor in regarding responses to the people involved. As to the proper use of force, I'm unsure. But, it should seems ridiculous these terrorists so easy got into the Capitol, especially since what happened is simply not shocking given all that has happened beforehand.

This applies to the bigger picture. Limits on armed assembly will be criticized since we have had instances & nothing happened. Until something does.

JS said...

There were clearly armed intruders who entered the Capitol building with the purpose of taking hostages.

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