Wednesday, November 24, 2021

Beyond Rittenhouse: The Future of an Armed Public

 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.

To be clear, there may well be circumstances in which one person is lawfully armed and another is unarmed but the unarmed person poses a threat to the armed one because the unarmed person is in the process of attempting to wrest the gun from the armed person and use it against them. It's possible that's even a fair description of the Rittenhouse case and/or the case against McMichael--albeit only if one focuses on the last few moments of the interactions to the exclusion of the earlier provocations by the persons claiming self-defense.

But in any event, no sensible legal system creates the circumstances in which people can arm themselves and create confrontations in which their survival or, what amounts to the same thing, their perception of their survival, depends on their using lethal force against their perceived adversaries before the perceived adversaries use force against them. Yet that is the quick-draw legal system that the Supreme Court seems poised to impose upon us all.

I'll conclude by acknowledging that in saying what I just did, I open myself to a charge of alarmism. After all, about half the states already permit just about any adult with a clean criminal record to carry a firearm in public; and yet even the most gun-friendly states are not the scenes of constant lethal confrontations; the evidence suggests that such permissive laws increase the risk of lethal confrontations but by something on the order of 10-15 percent. That's not quite the wild west.

I would respond by noting first that even a small but substantial increase in such violence is tragic. And second, it's really too early to tell how all of this will play out as distinctly political violence becomes more common. SCOTUS-mandated permissive gun laws, broad conceptions of self-defense, and an extremely angry and divided public are each disturbing in their own right, but in combination they are truly toxic.

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Postscript: That's probably it for me and the rest of us here at DoL for the week, although it's possible I or one of my co-bloggers might decide to run a "classic" column or otherwise break our silence in the event of emergency news. To be honest, however, just about everything these days is an emergency. For example, in my new Verdict column today I note that, absent swift congressional action, we will once again be facing the prospect of economic collapse due to debt ceiling brinksmanship. (I urge Democrats to use reconciliation to increase the debt ceiling.) Meanwhile, I'll simply echo Prof Buchanan's wish yesterday that everyone have a compassionate and happy Thanksgiving.