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.