Is There a Right to Armed Protest? Should There Be?

Let's begin with the obvious. The fact that Alex Pretti had a gun on his person in no way justified or excused the actions of the federal officers who murdered him because: he never brandished or reached for his gun; he was attacked before the federal officers even realized he had a gun; and he had been disarmed and was being held down when he was repeatedly and fatally fired upon. Even if Pretti had not had a legal license for his gun, and even if he had no Second Amendment right to carry a gun, the officers' actions would have been outrageous and utterly indefensible.

Those facts make the arguments advanced by various Trump regime officials and apologists casting blame on Pretti for being armed utterly meritless. Moreover, as numerous people have noted, the blame-casting statements are extremely hypocritical coming from the political right in general--given their longstanding support for robust Second Amendment rights--and from the Trumpist right in particular--given their support for armed insurrectionists during the January 6, 2021 coup attempt and their lionization of armed killer Kyle Rittenhouse. No credence whatsoever should be given to the bald-faced liars and shameless hypocrites now blaming the victim.

Accordingly, in asking the questions that title today's essay, I am not asking whether they have any application to the Trump administration policy of murdering protesters. However, just because one's political opponents engage in hypocrisy doesn't mean they cannot inadvertently raise an important question. In saying that it is hypocritical for Trump's minions and apologists to decry bringing a gun to a protest, one is not saying that one agrees with their longstanding position that there is or ought to be a right to armed protest--especially not if one has previously argued there isn't and oughtn't to be such a right. Their hypocrisy doesn't justify ours.

As it happens, I have given considerable thought to the question whether there is or ought to be a right to armed protest. For a 2021 symposium in the Northwestern Law Review I wrote an essay titled When Two Rights Make a Wrong: Armed Assembly Under the First and Second Amendments. Here's the abstract:

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

Had I been writing on a blank slate, I would have had no difficulty concluding that there is no right to armed protest because I think that the Supreme Court's case law recognizing an individual right to carry firearms is badly mistaken. However, in an effort to remain relevant to ongoing legal questions, in When Two Rights Make a Wrong, I accepted the Court's Second Amendment jurisprudence as given. My thesis in the essay was that even assuming that there is generally a right to carry firearms in public, that doesn't extend to doing so in an organized group, either as a matter of the First Amendment, the Second Amendment, or some combination.

I wrote When Two Rights Make a Wrong before the Supreme Court's decision in NYS Rifle & Pistol v. Bruen, which adopted the history-and-tradition approach to construing the Second Amendment, but much of my essay analyzed the issue under what would become that approach, considering evidence of the original meaning of the First and Second Amendments at the Founding and during Reconstruction. To put the point in terms of the Bruen test, laws forbidding armed assembly of private actors (whether in protest or otherwise) fall within the history and tradition of firearms regulation in the United States. That conclusion stands.

To conclude that the Constitution, properly construed under the Court's precedents, does not protect a right to armed assembly is not necessarily to conclude that an ideal constitution shouldn't protect such a right. After all, I think that an ideal constitution would differ in many ways from the Constitution we have under any plausible construction of it. An ideal or even just better constitution would contain some positive rights, such as education, health care, and housing; it would not bar immigrants from the presidency; it would not vastly over-represent small states in the national legislature if it even had a federal system; etc. So, even though our existing Constitution is best construed--even taking the Supreme Court case law as given--to contain no right of armed assembly, might a better constitution contain one? Or of more immediate practical import, should states exercise the power they currently enjoy to ban armed assemblies?

In When Two Rights Make a Wrong, my principal normative argument against a constitutional right was that it could easily lead to mob violence by those assembled. I also worried about the potential for deadly confrontations between armed protesters and armed counter-protesters. I offered those points in opposition to a constitutional right to armed assembly, but they also can function as part of a policy argument against any such sub-constitutional statutory right. The same is true of a further harm that armed assemblies can cause: intimidation of government officials and others, which severely undercuts democracy--a harm explored at length in the contribution to that same symposium by Professors Joseph Blocher and Reva Siegel.

Nothing has changed since 2021 that would lead me to rethink my view that protecting a right to armed assembly would have the very serious costs described in the preceding paragraph. However, one might think that recent experience in Minneapolis and elsewhere teaches that protesters have a need for firearms to deter and protect themselves against the unreasonable use of deadly force by federal (or other) government agents and that this need outweighs those costs.

I would strongly resist that suggestion. Studies show that fear of civilians greatly increases the use of deadly force by law enforcement. Knowing that most protesters might be armed--as law enforcement officers know under a regime of a right to armed protest--exacerbates their fears and thus increases the likelihood that they will unjustifiably use deadly force. Leadership and effective training can greatly reduce the tendency of law enforcement officers towards using deadly force out of unjustified fear, but not to zero, and both are often absent in the police forces of America's cities. The poorly trained federal officers on the streets of Minneapolis and other cities are especially likely to be trigger-happy.

To be clear, I am not saying that all unjustified violence by law enforcement is the product of fear. Derek Chauvin pressed his knee into George Floyd's neck for nine-and-a-half minutes during which Floyd was handcuffed and not resisting. Even if Chauvin had felt fear at some earlier point during the interaction, for nearly all of that time he was simply committing sadistic murder. Meanwhile, the federal government is intentionally recruiting racists eager to bring their video game violence to life. Even if one thought the deployments sensible (and I certainly do not think they are), one might conclude that the real culprit is bad recruiting and bad training for the carrying out of a completely misguided mission.

And I do draw that conclusion. The Trump regime's immigration crackdown is wholly unwarranted. It is being conducted by ill-trained people, many of whom would have no business doing the job even if they were better trained. The crackdown should end, and all officers charged with carrying out legitimate law enforcement operations should be carefully screened and well trained. But whether or not those things happen, introducing armed protesters into the equation will likely lead to more violence--in all directions--and to the further harms to democracy that political violence fosters.

So, no. There is no constitutional right to armed protest, nor should there be one as a matter of policy.

-- Michael C. Dorf