Excerpted From: Kindaka Sanders, Let My People Go, Part One: Black Rebellion and the Second Amendment Political Necessity Defense, 31 William & Mary Bill of Rights Journal 765 (March 2023) (559 Footnotes) (Full Document)


KindakaJamalSandersOn January 6, 2021, hundreds of supporters of President Donald Trump stormed the U.S. Capitol, assaulting, looting, and threatening to hang elected congressional officials. Many of the participants claimed afterwards that the then-president implicitly commanded them to do whatever it took to stop the election count scheduled for that day. It was the first attack on the Capitol building since British forces torched it along with other local landmarks in 1814, and the only time that U.S. citizens have attacked the seat of the national government. However, it was hardly the first siege of government from within the United States.

In May of 1822, Denmark Vesey planned such a siege. A formerly enslaved African Methodist Episcopal (AME) minister, he and several other African American men made an elaborate plan to engage and neutralize enslavers in Charleston, South Carolina, and liberate their bound brethren. They planned to battle their way to the Charleston Harbor and commandeer ships so they could sail to the recently formed independent Black nation of Haiti in the Caribbean, home of the most successful slave insurrection in world history. The Africans in Haiti, led by Toussaint Louverture, outwitted and outmaneuvered the armed forces of one of the greatest military commanders in world history, Napoleon Bonaparte, en route to winning their freedom as well as their independence. Vesey inspired his followers to rebel by placing their freedom struggle in the context of the Hebrew people of biblical lore who--led by the prophet Moses--escaped the bondage of their Egyptian slave masters. African Americans have employed this allegory throughout their history in this country and at every stage of their struggle, from slavery to the Civil Rights Movement, expressing it most poignantly through the old Negro spiritual, “Go Down Moses”:

Go down Moses

Way down in Egypt land

Tell old Pharaoh

To let my people go.

It is often said that slavery is the United States' original sin. However, it is clear from the country's founding ideals pitted against its subsequent history that the country's original sin is hypocrisy, and slavery only its most horrible symptom. Nearly two hundred years separate the Vesey Plot and the storming of Capitol Hill. Hundreds of revolts, massacres, riots, uprisings, and rebellions have punctuated the period in between. Rebellion, as a form of political dissent, is as American as apple pie and hypocrisy itself. The same theme has underlaid all such incidents: the war between the freedom to be and the freedom to oppress. This battle, fought in the American consciousness and on American streets, is the primary source of American hypocrisy. But there has been little tension in the methods used to effect these freedoms.

Another case from history illustrates this conflict: On October 16, 1859, abolitionist John Brown, a white American patriot, approached the U.S. Military Arsenal at Harpers Ferry, Virginia alongside a few other compatriots. They sought to commandeer the stores of weapons that were rumored to be in the arsenal.

Brown already had a history of violent resistance. As pro-slavery forces attempted to establish Kansas as a slave state, he and his five sons traveled there to fight them. In 1856, they attacked a group of cabins along a creek, killing five men with broad swords. Guerilla warfare continued throughout the summer.

In 1857, Brown began to amass resources to fund his war on slavery. His goal was to free enough of enslaved people to end slavery as an institution. Brown secured funds from a few prominent abolitionists and assembled a fighting force of around two dozen, including three of his four sons who had survived the summer of 1856, for the raid at Harpers Ferry. Brown approached prominent African American abolitionists Harriet Tubman and Frederick Douglass to join the effort, but Tubman was ill and Douglass believed--rightly--that the effort was doomed to fail.

On the eve of the raid, Brown's army holed up in a farm near Harpers Ferry and prepared their attack. At the appointed hour, they approached the armory and cut the telegraph wires to prevent communication between the guards at the armory and the outside world. Brown and his forces easily took the arsenal. They then took several hostages.

Before the rebels could get away with the weapons, a passenger train happened to approach the arsenal. The baggage master detected that the armory was under siege and ran to warn the passengers. Brown's men ordered him to halt but he did not. The baggage master, Harvard Shepherd, a free Black man, was the first casualty of the Harpers Ferry raid.

For some reason, Brown decided to let the train escape. As a result, news of the raid rapidly spread. The next day, a company of U.S. Marines led by General Robert E. Lee cornered Brown and his compatriots who were holed up in a hotel near the arsenal. Many of Brown's men escaped; the next morning, Lee's forces surrounded the room. Lee then demanded that Brown surrender or die; Brown chose death. Lee's troops promptly stormed the premises and unleashed a hail of gunfire, wounding Brown and killing ten of his men.

Soon after Brown was captured, the Governor of Virginia, an Ohio congressman, a Virginia Senator, and several military officials questioned him. The congressman, Clement L. Vallandigham, asked Brown who sent him. “No man sent me here,” replied Brown. “It was my own prompting. And that of my maker, or that of the devil, which ever you please to ascribe it to. I acknowledge no man in human form.” The senator, John Murray Mason, asked Brown, “What was your object in coming?” “We came to free the slaves, and only that.” “How do you justify your acts?” asked the Senator. Brown answered:

I think, my friend you are guilty of a great wrong against God and humanity--I say it without wishing to be offensive--and it would be perfectly right in any one to interfere with you so far as to free those you willfully and wickedly hold in bondage. I do not say this insultingly. I think I did right and that others will do right who interfere with you at any time and all times. I hold that the golden rule, “Do unto others that you would that others should do unto you,” applies to all who would help others to gain their liberty.

This statement essentially articulated the political necessity defense. Brown justified his otherwise criminal act on the basis that the social utility of his act outweighed the social harm the criminal infraction itself caused. That is, when the magnitude of the political harm is greater than the harm caused to society by the criminal act, the defendant--in committing the criminal act to abate the political harm--has chosen the lesser of two evils. The defense has four elements: (1) the harm averted must be greater than the harm caused; (2) there must be no reasonable alternatives to breaking the law; (3) the criminal act must have the potential to directly abate the harm (setting in motion a chain of events is insufficient); and (4) the harm to be averted must be imminent. The rationale behind the defense is that an individual ought not to be criminally punished for doing what, in the balance, is the right thing.

By referencing the magnitude of the social harm of slavery, Brown implied that he had chosen the lesser of two evils: “[Y]ou are guilty of a great wrong against God and humanity.” In asserting that “it would be perfectly right in any one to interfere with you so far as to free those you willfully and wickedly hold in bondage,” Brown implied that all means are justifiable to abate the evil of slavery and thus all alternatives are reasonable. Brown was asserting that the interdiction of slavery is justifiable “by any means necessary,” in the words of 1960s Black rights advocate Malcolm X. Brown's response also tracks the ultimate reasoning behind the political necessity defense when he stated flatly, “I think I did right.”

Furthermore, Brown delivered a closing address to the court after the verdict that essentially stated, in the nomenclature of the political necessity defense, that he chose the lesser of two evils. His address also places into perspective the most controversial element of the political necessity defense: the lack of reasonable alternatives. He stated:

Had I interfered in the manner which I admit, and which I admit has been fairly proved (for I admire the truthfulness and candor of the greater portion of the witnesses who have testified in this case), had I so interfered in behalf of the rich, the powerful, the intelligent, the so-called great, or in behalf of any of their friends, either father, mother, brother, sister, wife, or children, or any of that class, and suffered and sacrificed what I have in this interference, it would have been all right; and every man in this court would have deemed it an act worthy of reward rather than punishment.

Here, Brown explains that slavery is a greater evil than murder, conspiracy, and treason. But for the blinding hypocrisy of the court and jury, he suggests, they would have seen it that way too. Brown was also arguing that he had no reasonable legal alternative, the second requirement, because of the racial hypocrisy that infected the nation.

Brown was convicted of murder and treason and was sentenced to die. He was hanged on December 2, 1859. His prophetic last words, which he wrote down, captured most poignantly the gist of the reasonable alternative element of the political necessity: “I John Brown am now quite certain that the crimes of this guilty land; I had as I now think; vainly flattered myself that without very much bloodshed; it might be done.”

Brown was saying no reasonable alternative existed to ending slavery because the ill of slavery--in Brown's opinion--was so deeply lodged in the body politic and the wellspring of social sentiment informing it that the political system that created slavery and kept it in place could not be reasonably expected to resolve it. As well as predicting the Civil War, historians believe, Brown hastened it through his raid on Harpers Ferry.

The political necessity defense requires a jury to determine the justifiability of a defendant's conduct without the guidance of duly promulgated laws, exceptions, and defenses covering the defendant's conduct under the circumstances at issue because legislators have not addressed those circumstances. Ultimately, a jury determines whether the political necessity defense applies to the facts of a case.

However, most cases of political necessity do not make it to the jury. Most, if not all, modern courts would not allow a defendant to raise the defense of political necessity in circumstances analogous to John Brown's raid of Harper's Ferry. For one, Brown's form of dissent was forcible, falling outside of the civil lawbreaking the political necessity defense traditionally covers. Second, many courts, even in civil disobedience cases, preclude the defense, opining that the political process is always available as a reasonable alternative to breaking the law. Third, federal courts have held that a duly passed law or policy, like legalized slavery, works no cognizable harm to society, irrespective of the actual harm incurred by society. Fourth, abating the social wrong of slavery might require a third party, the government or slaveholders as a class, to act to ultimately abate the harm, dissipating the causal relationship between Brown's criminal acts and the prohibition of slavery.

While courts might be justified in imposing these types of limitations on the traditional political necessity defense, they would not be justified in imposing such limitations on a political necessity defense rooted in the Second Amendment. Indeed, as argued herein, the political necessity defense is a constitutional defense protected by the Second Amendment to the U.S. Constitution.

The “Let My People Go” Article series has two parts. Part One discusses the political necessity defense, the underpinnings of the political necessity defense, the types of political necessity, and Black rebellion. Part Two discusses the constitutional basis for the political necessity defense, including the historic and modern Second Amendment right to rebel, the violent veto power of the Second Amendment and its relationship to the right to rebel, and the connection between the violent veto power and the political necessity defense. Part Two refines the political necessity defense to meet Second Amendment standards, then applying the elements of the refined political necessity defense to the storming of Capitol Hill on January 6, 2020.

Section II of Part One of this Article discusses the doctrine of political necessity and the historical underpinnings of the necessity doctrine in general. It also discusses a series of social upheavals in American history-- including the founding acts of resistance leading to the American Revolution, major slave rebellions, and urban riots--to provide context for the types of social wrongs the Second Amendment political necessity defense contemplates. Section III concludes Part One of the Article and introduces Part Two.

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Let My People Go, Part Two: The Second Amendment Political Necessity Defense and the Storming of Capital Hill argues that all forms of purposeful lawlessness, direct or indirect, forcible, or peaceable, are protected under the Second Amendment. That is, the Second Amendment embraces its own political necessity defense. The history of the Second Amendment, as well as the Supreme Court's two most influential Second Amendment cases, District of Columbia v. Heller and McDonald v. Chicago, provide the proof. This Article explores this proof in detail. Finally, this Article applies the Second Amendment political necessity defense to the storming of the Capitol on January 6, 2021.

Associate Professor of Law, Texas Southern University Thurgood Marshall School of Law.