by Michael C. Dorf
In two articles published earlier this year, I addressed the problem of armed clashes at rallies, marches, and protests, referring to the Capitol insurrection and other lethal events--including Kyle Rittenhouse's conduct--in the introduction to each article. Because I do not teach, nor am I otherwise an expert in criminal law, I do not have anything especially noteworthy to add to the voluminous commentary that we have already seen on the Rittenhouse verdict last week. Instead, I'll focus my attention on the broader problem of political violence and the still broader problem of gun violence. I shall, however, refer back to one aspect of the Rittenhouse case below.
First, a snapshot of the articles. In When Two Rights Make a Wrong: Armed Assembly Under the First and Second Amendments, part of a symposium published in the Northwestern University Law Review, I argue (on textual, historical, doctrinal, and normative grounds) that even if SCOTUS holds in the pending NY case that there is a Second Amendment right to carry firearms in public, neither that holding, nor the right of assembly under the First Amendment, nor a synergistic combination of the two Amendments should be construed to create a right of armed groups to carry firearms.
In Disaggregating Political Violence, part of a Brennan Center symposium, I argue that the modern free speech paradigm allows regulation of political speech under the incitement test with an aim of avoiding immediate breaches of the peace, and thus addresses the risk of what I call "outsider" political violence (by the likes of anarchists and communists), but provides few tools to address "insider" political violence (by the likes of supporters of one of the two major political parties). Those are very brief and somewhat cryptic descriptions, I know, so I encourage interested readers to consult the articles themselves. Here I'll highlight an issue I also raise in Disaggregating.
Suppose I'm correct in When Two Rights. That is, let's suppose that in NYS Rifle & Pistol Ass'n, Inc. v. Bruen, SCOTUS holds that there is a constitutional right of law-abiding adults to carry firearms in public except in a limited category of "sensitive places" but that the Court also holds that neither this right nor the First Amendment protects a right of armed groups to assemble. Still, as I say in Disaggregating, that leaves an almost impossible enforcement problem: armed individuals can arrange to arrive independently at a pre-arranged location, where they constitute themselves a group. At that point they would be acting illegally (under a content-neutral law banning such armed assemblies), but by then it would be too late to disperse or arrest members of the crowd without risking bloodshed. Thus, as a practical matter, a right of individuals to go about in public armed entails a right of groups to do the same.
That right, of course, attaches to both protesters and counter-protesters. Under the logic of the jury instructions in the Rittenhouse case, armed protesters and counter-protesters can confront each other, and both sides could be justified in lethal self-defense. Indeed, Kyle Rittenhouse testified and the video arguably confirmed that he shot and killed Anthony Huber when Huber--who had just witnessed Rittenhouse shoot and kill Joseph Rosenbaum--attempted to grab Rittenhouse's assault rifle. Presumably the lethal threat that the jury concluded justified Rittenhouse in using lethal force in self-defense came from Rittenhouse's own weapon. Travis McMichael, who shot and killed Ahmaud Arbery, has made a similar claim--one the jury will evaluate as soon as later today. He too claims that he was reasonably in fear for his own life because he thought that the unarmed man he was confronting might shoot him with his own gun.
