Abstract
Excerpted From: Kindaka Sanders, Let My People Go, Part Two: The Second Amendment Political Necessity Defense and the Storming of Capitol Hill, 31 William & Mary Bill of Rights Journal 1135 (May, 2023) (319 Footnotes) (Full Document)
This Article 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 version of the political necessity defense. The argument is simple. The Supreme Court held in District of Columbia v. Heller and reinforced in McDonald v. Chicago that the Second Amendment embraces a right to rebel against government tyranny and public violence. However, the Court did not provide a defense for vindicating this right. The traditional political necessity defense provides the best framework. Both the traditional political necessity defense and the Second Amendment were created to address government failures and the insufficient laws. The common law necessity defense reflected a fear that the newly formed federal and state governments might abuse their powers and reflected a concern that governments would not keep pace with popular values or “fundamental changes in public morality.” The necessity defense empowered juries to address these concerns on a case-by-case basis. The traditional political necessity defense more directly reflects the founding fears of government overreach. The political necessity defense absolves an individual for breaking the law as a last resort when the effect of the law or government action is more harmful than breaking the law. Similarly, the Second Amendment right to bear arms was enacted, in large part, as a check on government's legislative and executive powers. The Framers reasoned that an armed citizenry would prevent government tyranny in the first instance and, if unsuccessful, would provide a vehicle for overturning it. The act of overturning or preventing government tyranny is literally a matter of political necessity.
The Article examines the traditional political necessity defense, extracting elements that are compatible with the Second Amendment and discarding elements that are not. The Article also explores the historical and legal background of the right to rebel and then uses the right to rebel to define the contours of the Second Amendment political necessity defense. Finally, the Article applies the Second Amendment political necessity defense to the storming of the Capitol on January 6, 2020.
Part I of this Article discusses the constitutional basis for the political necessity defense. Part II articulates the political necessity doctrine refined by its Second Amendment underpinnings. Part III applies the Second Amendment political necessity defense to the storming of Capitol Hill. [Checkout Let My People Go, Part One: Black Rebellion and the Second Amendment Political Necessity Defense ]
I. Constitutional Basis for the Political Necessity Defense
The political necessity defense and the Second Amendment are doctrinal soulmates. They share a common history and rationale. The Declaration of Independence, which informs the Second Amendment, justified the rebellion against the British government as a necessity. Furthermore, early common law jurisprudence on the necessity defense reflected the colonists' distrust of British rule and fear of tyrannical government. Shaun Martin captures the relationship between the development of the necessity doctrine and the colonist's fear of tyrannical government:
There was a profound belief, based firmly upon both pre-Revolution experiences and subsequently articulated democratic principles, that substantial disparities often exist between government officials and those under their rule. The need for a jury-centered judicial response to this broad social problem was one of the central precepts upon which the American republic was founded .... This shared expectation was the foundation for subsequent judicial developments, including the articulation of the necessity doctrine. Colonial experience had created a consensus that, even in the new republican United States, fundamentally divergent opinions nonetheless could and would develop between the government and the governed. This belief was not merely based upon the infirmities of British rule, but also was founded upon the more general nature of government itself. Common law jurisprudence accordingly developed with a keen sense of the continuing danger of unchecked governmental power, notwithstanding the presence of broad structural constraints upon such abuses established by the Constitution and Bill of Rights .... The legislative and executive branches could not be entirely trusted to do what was right. Democratic rule necessitated that juries be allowed to acquit a criminal defendant notwithstanding his clear noncompliance with a validly enacted law and the presence of an executive decision to prosecute him.
The Second Amendment was framed for similar reasons. The right to rebel derives from the Founders' fears of government overreach. The right allows citizens to forcibly resist government efforts to impose tyrannical rule. It applies against government agents and political bodies; the acts of government agents; and the promulgations and policies of political bodies. The right to rebel, for instance, applies against a cop trying to prevent a citizen from lawfully voting or a police department policy to disarm all Blacks in a particular neighborhood.
A. The Second Amendment and the Right to Rebel
The Second Amendment includes two interrelated but distinguishable rights: the right to rebel and the right to self-defense. The former is a right that authorizes both independent and collective force against the government and, more particularly, government officials, who undertake or threaten unconstitutional actions or promulgations to impose its will on the citizenry.
The traditional doctrine of self-defense is straightforward. It provides an affirmative defense to an actor who employs physical force to repel an immediate physical threat to her safety or the safety of her family members. Traditional self-defense applies when the targets are common attackers, burglars, or law enforcement officials using excessive force. In contrast, the right to rebel--considering the types of threats that provoked the framing of the Second Amendment--applies only to defensive or preventive force taken against the government. The right to rebel is a tighter doctrinal fit with the Second Amendment than self-defense because the initial purpose of the Second Amendment was to check potentially corrosive government power, not to protect against private citizens. Said differently, the right to rebel is inherently political, while self-defense evokes notions of a home defender and a common criminal.
The two rights also support different interests. The fundamental interests protected by the right to rebel relate to freedom and liberty, whereas the interests protected by the right to self-defense include preservation of life and bodily integrity.
The right to rebel also features a moral component that differentiates it from self-defense and other defensive rights. Self-defense, for example, focuses on the objective reasonableness of the actor's actions and not on the actual intent of the perceived aggressor. Discounting the perceived assailant's intent means that a defender could assault or even kill an individual she wrongfully perceives as a deadly threat and still be justified in the killing.
The right to rebel, by all indications, is a moral right pitched in black and white. The moral nature of the right suggests that it applies only to situations where government actors are morally blameworthy in fact.
David Kopel, however, believes that the right to rebel and self-defense are a part of the same continuum. He argues:
[T]he Framers of the Constitution and the Second Amendment saw community defense against a criminal government as simply one end of a continuum that began with personal defense against a lone criminal; the theme was self-defense, and the question of how many criminals were involved (one, or a standing army) was merely a detail.
Other scholars include the right to rebel within the doctrine of self-defense as the doctrine was understood at the time of the ratification of the Second Amendment. Don B. Kates and Clayton E. Cramer note:
[S]elf-defense had a broader meaning than it is usually conceived of having today. Self-defense included not only defense against apolitical crime but also against assassination, genocide, and other politically-motivated oppressions--what Algernon Sidney called “the violence of a wicked magistrate who, ha[ving] armed a crew of lewd villains,” subjects the people to murder, pillage, and rape.
Professor Darrell Miller includes self-defense against police officers under the rubric of the right to rebel. He interprets the Second Amendment as authorizing what he terms retail rebellion, a component of the general right to rebel. According to Miller, retail rebellion encompasses individual acts of defense against public violence, including “threatening police officers, resisting arrest, cop killing.” Miller's concept of retail rebellion also includes the use of physical force or, at least, the threat of physical force to prevent unlawful disarmament by law enforcement officials.
In many instances, the right to rebel and the right to self-defense overlap. Some government actions trigger both rights. “Cop killing,” for example, might be justified under the right to rebel because police officers are government officials. It might also be justified as self-defense because the self-defense doctrine does not distinguish between law enforcement and common assailants.
On the other hand, if a citizen uses violence to prevent an unlawful arrest or stave off disarmament, his actions implicate the right to rebel only. He uses force to guard against government oppression that threatens liberty interests. He does not use it to repel an immediate physical attack.
Whatever the contours of the right to rebel, it is clear that there is in fact a right to rebel implicit in the history of the Second Amendment. The Supreme Court's opinions in District of Columbia v. Heller and McDonald v. City of Chicago confirmed the existence of the right.
1. The Historic Right to Rebel
The right to rebel derives from the history of the Second Amendment and the natural rights philosophy that shaped its historical development. The Heller and McDonald opinions discuss, and even go as far as adopting the tone of, this natural rights philosophy. Darrell Miller observes that the Court's “sweeping natural law rhetoric pulses with anarchy” and portions of the Heller opinion “seem giddy with revolutionary fervor.”
In both Heller and McDonald, the Court underscores the Second Amendment's inaugurate role as a check on government tyranny, a role accomplished by ensuring an armed citizenry prepared to hold the government accountable at gunpoint. The Heller Court noted the Second Amendment was, in large part, provoked by the American colonists' pervading fear of government tyranny. Quoting David B. Kopel, the Court expressed that the impetus behind the Second Amendment was “to deter tyranny and allow popular revolution to unseat a tyrant.” Obviously, the tyranny to be deterred encompassed more than immediate threats to physical safety.
Furthermore, the Court's language in Heller evokes Second Amendment concepts that outstretch traditional notions of self-defense: “[W]hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny”; “‘the natural right of resistance and self-preservation’ is a right ‘protecting against both public and private violence.”’ The Heller Court also reasoned that “history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents.”
In McDonald, the Court reaffirmed that the right to keep and bear arms for self-defense is fundamental. It is a right “deeply rooted in [our] history and tradition.” In reaching this conclusion, the Court reviewed the role of the Second Amendment in empowering Americans to resist government tyranny at various junctures in the Country's history. The centerpiece of the Court's historical analysis focused on Reconstruction. The Court, in quoting Stephen Halbrook, recounts that Reconstructionera Republicans passed the Fourteenth Amendment to help protect “the right of freedmen to keep arms in opposition to searches and seizures of arms by state militias” because the municipal police officer, in conjunction with state militias, “terrorized freedmen, sometimes alone, sometimes in collusion with unofficial citizen patrols and groups like the Klan.” The McDonald Court observed that African Americans “had as much to fear from Southern law enforcement as they did from terrorist organizations like the Klan.”
The import of the Court's historical reference here cannot be overstated. Congress essentially authorized Blacks to use lethal force to defend themselves against disarmament. The obvious implication is that Black southerners were constitutionally empowered to use deadly defensive force against government officials to protect their persons, property, freedom, and constitutional rights, particularly their right to bear arms. Taken together, the Second Amendment afforded Southern Blacks the right to rebel against rogue (tyrannical), Southern law enforcement officials.
At least one scholar agrees that the Court's analysis in McDonald has far-reaching implications. Professor Darrell Miller notes Heller and McDonald “suggest that the people ratified both the Second Amendment and the Fourteenth Amendment with the understanding that they codify a previously natural, individual right to arm oneself in self-defense against government threats, and not only to arm oneself, but to use those arms in opposition to tyranny.”
Joseph Story, an authority the majority quotes in Heller, wrote in 1833:
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
The Second Amendment emanated, in part, from the English Bill of Rights. The English Bill of Rights resulted from the British Crown's repeated attempts to disarm English citizens to quell dissent. Heller acknowledges this history. The Court explains that the English Bill of Rights germinated from episodes where King Charles II and King James disarmed their political opponents to quash political dissent. This history left Englishmen wary of government efforts to regulate firearms. In response, English citizens appended a provision to the English Bill of Rights precluding the British government from disarming citizens. The provision established the principle that freemen were empowered to defend themselves against the British government.
According to the Heller Court, similar colonial experiences with the British Crown influenced the American Bill of Rights. Specifically, the Court attributed the genesis of the Second Amendment to early colonial incidents in which the British monarchy repeatedly attempted to disarm groups of American colonists to suppress resistance to British rule. According to the Court, “members of Congress feared that the federal government would duplicate the tyranny of the British Crown by disarming the citizenry, in order to further a particularized world-view enforced by military rule.” The Court also stated, “[i]t was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.”
Additionally, the Supreme Court in Heller invoked the work of noted legal scholars, like William Blackstone and Joseph Story, in articulating what essentially is a right to rebel. The Court adopted Blackstone's characterization of defensive rights to determine that the right to bear arms is based upon “the natural rights of resistance and self-preservation” available to people “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
The common law right to resist an unlawful arrest also evidences the historical right to rebel. The right to resist an unlawful arrest authorizes force against law enforcement officials who endeavor to arrest individuals without probable cause or warrant. This right, particularly in its manifestation as an affirmative defense to assault, battery, and homicide charges, is probably the purest, structured application of the natural rights philosophy underlying the right to rebel in western jurisprudence.
Under English law, an Englishman had a right to use physical violence to prevent his unlawful arrest or the arrest of another. Importantly, the right was not rooted in self-defense. It was not designed to protect against physical injury or death. Instead, the right to resist an unlawful arrest is steeped in the doctrine of provocation, which acknowledges the innate offensiveness of acts of government-propagated tyranny. Miller notes, “[a] person arrested illegally (or who witnessed such an illegal arrest) was ‘provoked’ by the threat to liberty and had a right to respond with force.” Englishmen considered an unlawful arrest to be an affront to the Magna Carta and, thus, an affront to all Englishmen.
The English common law right to resist an unlawful arrest legitimizes the notion that psychological or moral injury caused by injustice can, at least in some instances, justify the use of physical force. It recognizes the damage to human dignity, the assault on the conscious, and the disturbance of the social sense of right and wrong caused by government acts of subjugation. The right even recognizes that a threat to liberty, dignity, and fairness interests can be so egregious that a citizen would be justified in using the most extreme use of force, deadly force, in response. That is, the right to resist an unlawful arrest, if undermined enough, could justify murder. In sum, the right to resist an unlawful arrest acknowledges and vindicates the idea that real injury can issue from a government abuse of power, even in the absence of a physical threat, that would license the use of physical force in response.
The American common law adopted the English right to resist an unlawful arrest. The American right to resist an unlawful arrest originally included the possibility of exculpating a defendant for murder. However, American common law courts later curtailed the use of the defense in murder cases. They also adjusted its rationale by featuring liberty and self-defense interests as the predominant justifications instead of “provocation.” However, as Miller notes:
[A]t the time the people ratified the Second Amendment, violent, sometimes even deadly, resistance to an unlawful arrest had long been an established part of Anglo-American jurisprudence. In fact, according to some cases, even technical defects with an arrest could strip the law officer of his authority and leave him in no better position than a common assailant.
The English common law right to resist an unlawful arrest also helped to shape the Second Amendment. As Miller observes, “[t]he same four generations of Englishmen that recognized the right to bear arms recognized the right of persons to use force to resist an illegal arrest.” Likewise, English common law was a precursor to the Second Amendment. One of the founding tenets of the English Revolution and, by extension, the American Revolution was “the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law.” Any number of English laws and the American common law, including the right to resist an unlawful arrest, reflect this view.
Both the right to rebel and the common law right to resist an unlawful arrest are circumscribed forms of rebellion that balance the need for social order with the mandates of individual liberty and freedom. Although these resistance rights are constrained forms of anarchy, they are checked in scope and discouraged in occurrence by the criminal justice process. Those who rely on these rights will be arrested, charged, and adjudicated by a jury of their peers.
The history of Western thought also suggests a Second Amendment right to rebel. Thirteenth-century theologian Thomas Aquinas is credited with first articulating the right. As Joseph DiPiero notes, “[A]quinas employed Ancient Greek methods of reasoning from universal principles of natural law and Aristotelian notions of tyranny to develop his theory of justified rebellion.” Aquinas argued:
A tyrannical government is not just, because it is directed, not to the common good, but to the private good of the ruler, as the Philosopher [Aristotle] states (Polit. iii, 5; Ethic. viii, 10). Consequently, there is no sedition in disturbing a government of this kind, unless indeed the tyrant's rule be disturbed so inordinately, that his subjects suffer greater harm from the consequent disturbance than from the tyrant's government. Indeed it is the tyrant rather that is guilty of sedition, since he encourages discord and sedition among his subjects, that he may lord over them more securely; for this is tyranny, being conducive to the private good of the ruler, and to the injury of the multitude.
Seventeenth-century philosopher John Locke, whose theories on natural rights and government inform many American ideas about government, asserted if the rulers fail to protect the natural right to “life, liberty, and property,” the “people could justifiably overthrow the existing state and create a new one.”
The American Declaration of Independence could not be clearer about justified rebellion. Indeed, the entire document is a powerful, poetic, and reasoned explanation of what is essentially the right to rebel. It decrees in pertinent part:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
2. The Modern Right to Rebel
The modern right to rebel derives from or, rather, is confirmed by the originalist methodology the Court uses in Heller and McDonald. In Heller, the Court described its interpretive approach as one that aims “to fetter judicial discretion by forcing judges to imagine what the words of the Constitution would have meant to an ordinary person at the time they were ratified.” This approach disallows the weighing of costs and benefits of a constitutional right, the practicality of implementing the right, or the consideration of untoward, even absurd, repercussions. As the majority asserted in Heller, “[t]he very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon.” The crux of the Court's methodology is that whatever the Second Amendment meant when it was ratified, is what it means now. Thus, if the Second Amendment contained a right to rebel when adopted, then it does so now.
In both Heller and McDonald, the Supreme Court was explicit in finding that self-defense is the “central component” of the Second Amendment. In McDonald, the Court emphatically stated that self-defense is not only a fundamental right, but also a natural right that long preceded the adoption of the Second Amendment and that the Second Amendment simply codified this pre-existing natural right. The Court was less explicit in delineating the right to rebel, but originalism aside, the Court's self-defense analysis clearly implicates the right to rebel in every manner aside from name. As Miller points out:
Heller and McDonald appear to suggest that the people ratified both the Second Amendment and the Fourteenth Amendment with the understanding that they codify a previously natural, individual right to arm oneself in self-defense against government threats, and not only to arm oneself, but to use those arms in opposition to tyranny.
As discussed in detail in the last section, the Court's opinions in both Heller and McDonald traverse centuries of court cases, state laws, scholarship, legal philosophy, legislative debates, and historical episodes. All the sources the Court discusses evidence a historical right to rebel and, by extension, a modern one. That is, originalism by its very nature means that what a right meant historically, it means at the moment of interpretation. The McDonald Court's invocation of the role of the Second Amendment during Reconstruction, for example, offers proof of the modern right to rebel. As Miller writes:
If one of the principal aims of the Civil Rights Act of 1866 and the Fourteenth Amendment was to allow freedmen to arm themselves in order to repel unreconstructed Southern law enforcement, then it seems that modern individuals would enjoy a constitutional right to publicly arm themselves in case they need to threaten, to resist, or even to fire upon police officers who violate the law.
Furthermore, as Miller notes as a logical consequence of the originalist methodology the court uses in Heller, the opinion “sanction[s] individual acts of armed rebellion against a [government agent] ... whenever that officer exceeds his authority in a way that a person construes as despotic or tyrannical” and “[i]t could be cited even to support efforts to cow, or even kill” government officials.
All in all, the Court's language in Heller and McDonald and the sources the Court leans on for support describe a Second Amendment that guards against more than immediate, physical threats and is calibrated to empower citizens to rebel against broader government oppression.
The contemporary right to rebel against the government seems preposterous as a practical matter. It would seem to give every radical rabble-rouser, self-professed revolutionary, and every religious extremist the authority to topple the government for what essentially amounts to government hypocrisy and unfaithfulness to the principles underlying the Second Amendment. The disturbing scope of the right to rebel is a valid critique. Government hypocrisy regarding the nation's founding principles is pervasive. Furthermore, it is not wrong to believe the right to rebel invites anarchy, nor is it beyond the pale to argue that the right is irreconcilable with the Country's stability or even with the well-being of the majority of citizens. Yet, the Heller and McDonald Courts' undiluted commitment to originalism tethers the Court precariously to a modern right to rebel.
On the other hand, constitutional rights are subject to some government regulation and judicially imposed restrictions. As the Court states in Heller, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” The Supreme Court cited to several state restrictions on the right to bear arms, including the prohibition of grenades, automatic weapons, explosives, etc. In Heller, the Court noted other acceptable regulations, including “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Whether these types of restrictions are truly consistent with a strict originalist approach is another matter altogether, requiring a detailed analysis that exceeds the scope of this Article. Suffice it to say that many of the restrictions the Court has upheld regarding the right to bear arms, like state statutes prohibiting grenades and automatic weapons--weapons necessary in the modern age to actualize the intent of the Second Amendment--are difficult to square with a strict originalist methodology which leads one to question the Court's absolute commitment to the approach. One relevant example is the Heller Court's unexplained proclamation that there is no right to wage wholesale war against the government. As Miller notes, “Heller provides no clue as to why this should be, other than an unsatisfactory ‘because we say so.”’
In his general advocacy of justifiable rebellion, Thomas Aquinas provides a philosophical basis for prohibiting wholesale war against government. Aquinas argued that “there is no sedition in disturbing a government” turned tyrannical, “unless indeed the tyrant's rule be disturbed so inordinately, that his subjects suffer greater harm from the consequent disturbance than from the tyrant's government.” Aquinas' philosophical caveat to justifiable rebellion balances the damage government tyranny wreaks on the populace against the social costs of overthrowing that government. This concept of balancing the harm of rebellion against oppression works exactly like the traditional political necessity defense's balance of harms element. Consequently, the concept philosophically supports the Heller Court's proclamation that there is no right to wage war against the government. However, there is no support for such a balancing prerequisite in Second Amendment jurisprudence or the nation's founding documents.
Even presuming there is no right to wage wholesale war against the government, the right to respond forcibly to individual acts of government tyranny obtains nonetheless. This right to rebel encompasses several rights, including, but not limited to, the right to resist an unlawful arrest; the right to use deadly force to prevent disarmament; the right to use deadly force against government officials who threaten excessive deadly force; the right to resist oppression and attacks on the Constitution; the right to resist political imprisonment; and, arguably, the right to riot.
Although these sub-war rights left unfettered could lead to chaos, the specter of prosecution and the threat of conviction greatly mitigate the potential anarchical effects. That is, the right to rebel would likely gain its character from its sister rights, the right to resist an unlawful arrest and the right of self-defense, which both operate as affirmative defenses that have to be established by the defendant, not simply negated by the prosecution. In other words, the defendant would have to prove that he acted within the circumference of the right to rebel instead of the prosecutor having to prove the opposite. This burden, along with the uncertainty of one's fate when left in the hands of a jury of one's peers, will discourage many brazen and unreasonable acts of rebellion and other abuses of the right.
Critics will also undoubtedly question the existence of the right to rebel. They will certainly argue that the Heller and McDonald Courts never meant to import a right to rebel into the Second Amendment. However, the Court in both cases explicitly determined that the Second Amendment did not create any new rights, that it simply codified natural rights already in existence. It is uncontested that one of the central purposes of the Second Amendment at the time it was adopted was to enable an armed response to potential government tyranny.
Furthermore, in both Heller and McDonald the Court unequivocally found that self-defense was the central component of the Second Amendment. It is clear from the sources the Court relies upon that the concept of self-defense had a wider girth when the Second Amendment was adopted than it does now. Also, the Heller Court confirmed that the right to self-defense applies irrespective of whether the source of the confrontation is public or private.
Thus far, the discussion in this Article concerning the right to rebel has focused primarily on individual acts of government tyranny, like a police officer attempting to arrest a citizen unlawfully. But what does the Second Amendment have to say about duly passed but oppressive laws such as the Fugitive Slave Act, anti-miscegenation laws, and the white supremist doctrine of “Separate but Equal”? Is the Second Amendment applicable to anti-American domestic policies such as COINTELPRO and other covert government operations meant to sabotage the leadership of community leaders like Dr. Martin Luther King Jr. and neutralize organizations like the Negro Improvement Association? In other words, what does the Second Amendment have to say about socially oppressive laws passed by Congress, state legislatures, and municipal government via the democratic process and subversive policies adopted by agencies like the FBI? These laws and policies violate the letter or spirit of the Constitution and undermine the principles of liberty and justice on which the country was founded.
B. The Right to Rebel and the Violent Veto Power
Be it an official government law or policy or a rogue government agent misusing his power, the “natural rights of resistance and self-preservation” equally apply to all forms of oppressive government conduct. The right to rebel applies to situations where the actor uses physical force to counteract a government actor's unlawful use of force or restraint, e.g., when an officer unlawfully arrests a citizen. However, the right to rebel applies equally where an actor uses physical force to curtail the effects of duly passed laws and legally promulgated policies that threaten liberty interests. Examples include the disproportionate federal sentencing guidelines that helped to fuel mass incarceration, voter suppression, felon disenfranchisement, the “rationalized fear” use-of-force standard which places a greater burden of care on civilians than on trained police officers, and policies such as the ones that have led to the militarization of police forces around the Country and the quasi-occupation of minority communities. This Article refers to a citizen's right to use force in such situations as “the violent veto power” of the Second Amendment. The violent veto power, as coined here, refers to the Second Amendment right to use purposeful violence to check or redress government tyranny that manifests as laws, policies, or other legal pronouncements, particularly those that threaten liberty interests. Like an unlawful arrest at English common law, tyrannical laws or policies amount to attacks on the Constitution itself. An attack on the Constitution is an attack on democracy which, ultimately, is an attack on the country. Thus, the violent veto power is theoretically situated to protect democratic government.
Hubert “Rap” Brown, the fifth chairman of the Student Nonviolent Coordinating Committee, remarked in 1967 that “[v]iolence is as American as cherry pie.” The violent veto power of the Second Amendment offers an obligatory amen to this point of view.
The idea of the violent veto power is deeply rooted in American history. The Stamp Act Riots of 1765 and the Boston Tea Party were among the earliest examples of violence dispatched to protest a duly passed law. The biggest Western example of the violent veto power is the American Revolution, which overturned British rule due to oppressive British laws and policies like the Stamp Act, taxation without representation, and general warrants. Indeed, the Second Amendment was drafted, in part, to prevent political tyranny of the brand that inspired the American Revolution.
Heller and McDonald verify the violent veto power. That is, the cases confirm that the Second Amendment right to rebel applies to more than physical government threats. The Heller and McDonald Courts describe the Second Amendment's central rights as “natural right[s] of resistance and self-preservation” available to people “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” The quote is from William Blackstone, who the Heller Court declared the “preeminent authority on English law for the founding generation.” Blackstone's reference to “insufficient” laws connotes the absence of effective or enforced laws or the absence of laws altogether that would protect citizens from oppression. Said differently, Blackstone's definition and, in turn, the Court's interpretation of central Second Amendment rights suggest that the presence, absence, or insufficiency of laws is foundational in determining whether citizen force is justifiable.
Furthermore, Blackstone's phrase, “violence of oppression,” connotes much more than a physical assault on an individual's person. Instead, the term “oppression,” as used by Blackstone, is a political term implying tyranny, abuse of power, and deprivation of freedom. The term itself comes from the Latin oppressus, which is the past participle of opprimere, meaning in Latin, “to press against,” “to squeeze,” to “suffocate.” In fourteenth-century England, “oppression” meant the “action of weighing on someone's mind or spirits.” The Cambridge English Dictionary defines oppression as “a situation in which people are governed in an unfair and cruel way and prevented from having opportunities.” Thus, when Blackstone writes of oppression, he is clearly talking about mental and spiritual tyranny of the sort meted out by governments and monarchs.
In the end, the McDonald and Heller Courts' use of Blackstone's passage about insufficient laws and oppression to describe the “central component” of the Second Amendment directly connects Blackstone's “natural right of resistance” to the violent veto power of the Second Amendment. In other words, the natural right of resistance, available when the laws fail to protect citizens from government oppression, justifies the use of the violent veto power.
The concept of self-defense prevailing at the time of the nation's founding also evidences a Second Amendment violent veto power. At the time:
[S]elf-defense had a broader meaning than it is usually conceived of having today. Self-defense included not only defense against apolitical crime but also against assassination, genocide, and other politically-motivated oppressions--what Algernon Sidney called ‘the violence of a wicked magistrate who, ha[ving] armed a crew of lewd villains,’ subjects the people to murder, pillage, and rape.
David Kopel notes:
[T]he Framers of the Constitution and the Second Amendment saw community defense against a criminal government as simply one end of a continuum that began with personal defense against a lone criminal; the theme was self-defense, and the question of how many criminals were involved (one, or a standing army) was merely a detail.
In more colorful and less objective language, John Brown would have described the violent veto as most appropriate to counter:
[T]he extreme wickedness of persons who use their influence to bring law and order and good government, and courts of justice into [the] disrespect and contempt of mankind ... fiends clothed in human form ... [who] have come to be a majority in our national Legislature, and ... pass unjust and wicked enactments, and call them laws.
C. The Violent Veto Power and the Political Necessity Defense
The Second Amendment right to rebel, which embraces the violent veto power, and the political necessity defense complement each other. Both the violent veto power and the political necessity doctrine anticipate democratic failures and offer countermeasures that bypass the political process in deference to more essential American values. To elaborate, in the words of Shaun P. Martin, “the necessity doctrine enshrines a direct participatory response to the problem of normative electoral failure.” It anticipates that a “fully functional American political system may fail to conform executive and legislative norms to prevailing popular principles.” Similarly, the violent veto power applies “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” The violent veto power, like the necessity defense, assumes that the democratic process in and of itself is insufficient to prevent government tyranny. Why would there be a right to rebel if the Founders had full faith in government and American democracy?
Furthermore, Blackstone's “natural right of resistance,” which the Supreme Court in Heller found to be the central component of the Second Amendment, evidences the complementary relationship between the violent veto power and the political necessity defense. Indeed, Blackstone's description of the natural right of resistance is a compelling description of the Second Amendment political necessity defense itself: a “natural right of resistance” is available to an actor “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
To elaborate, Blackstone's description, “when the sanctions of society and laws are found insufficient” to “restrain the violence of oppression” combines ideas that animate the common law necessity doctrine: the failure of the law to provide an equitable prescription for the defendant's situation and the political character of the violent veto power, i.e., thwarting government oppression. That is, to prevail on a general claim of necessity, the existing law must be insufficient to cover the exact situation the actor finds himself. In other words, the law has to be an unreasonable (insufficient, oppressive) alternative for a defendant to prevail on a necessity claim.
Blackstone's phrase, “the violence of oppression,” highlights the political nature of Blackstone's version of self-defense, thus completing Blackstone's articulation of what is essentially a political necessity defense. As discussed in the section above, when Blackstone wrote the passage, the term ‘oppression’ connoted political oppression, although the Heller Court must have interpreted “oppression” both as physical force and emotional, psychological, and spiritual government violence.
Furthermore, the violent veto power and the political necessity defense complement each other because both doctrines share the principle of veto. The necessity defense gives an actor a circumstantial veto over a particular law. That is, the necessity defense carves out a one-time exception to a specific law when breaking that law produces less social harm than following it. The political necessity defense transforms a jury into “a quasi-legislative or executive body that can, in effect, veto duly promulgated policies” without the safeguards of accountability to the electorate, including elections and the need to justify the decision making that characterizes the legislative and executive branches.
The veto principle in the violent veto power is more expansive than the veto principle of the political necessity defense. The veto principle of the necessity defense contemplates a one-time exception to a particular law, while the violent veto principle aims to subvert the law or policy altogether. The Heller Court's description of Second Amendment self-defense illustrates the distinction. To this end, it is helpful to view contemporary self-defense as a form of necessity. For self-defense, the harm to be avoided is an assault on the non-culpable party, the harm caused is an assault on the culpable party, and the lack of reasonable alternatives involves the absence of government actors to prevent physical harm to the non-culpable party. The Court's definition of Second Amendment self-defense, Blackstone's definition, supports this characterization.
Blackstone's definition posits the “natural right of resistance and self-preservation.” Blackstone must have viewed this “natural right” on a continuum that seats both resistance and self-preservation. That is, “resistance” seems to connote resisting government tyranny. On the other hand, “self-preservation” signifies self-defense as we know it. The Heller Court confirms this interpretation. The Court noted that Second Amendment self-defense applies to both “public and private violence.” “Self-preservation” and private violence connote contemporary self-defense. The phrases “natural right of resistance” and “public violence” connote the right to resist (rebel). Whereas the self-preservation terminology of Blackstone's framework suggests a situational veto power over specific existing laws, including murder and most brands of assault, “the violence of oppression” aspect of the framework suggests that the culprits to be resisted are government officials and government bodies. In any event, all three doctrines--necessity, self-defense, and the violent veto power--share the veto principle.
Finally, the violent veto power comports with the political necessity defense because the violent veto power necessitates the political necessity defense. That is, the relationship between the violent veto power and the political necessity defense is like the relationship between the Second Amendment right to self-defense and the affirmative defense of self-defense. Just as the defense of self-defense is how one charged with assault, murder, or other violent crime vindicates one's right to self-defense, the defense of political necessity is how one charged with rioting, prison escape, assault, conspiracy, sedition, or other tumultuous crime vindicates one's right to rebel and, by extension, one's right to use force to resist arbitrary and oppressive laws, policies, and promulgations. Said differently, the violent veto is the protected right, and the political necessity is the best means to vindicate it in a court of law.
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This country was forged by purposeful lawlessness and then molded by subsequent rebellions, demonstrations, and riots that invoked the same design. Due to the role purposeful lawlessness, particularly forcible dissent, played in establishing, developing, and sustaining American democracy, criminal law should not discourage similar acts that lead to net social good. The way to ensure this is to enable citizens charged with politically motivated crimes to present their cases to a jury of their peers to determine whether their unlawful activities resonate with principles underlying the country's founding and the Second Amendment.
This form of empowerment is most comparable to the traditional political necessity defense. However, most courts would not allow activists to advance a necessity defense under circumstances like the ones leading to this country's founding or the ones that facilitated its transformation during the 1960s.
The Second Amendment political necessity defense is the constitutional version of the traditional political necessity defense. The Second Amendment hamstrings state and federal courts when the constitutional version of the defense is raised, overriding many previous objections to the defense. The Second Amendment political necessity defense vindicates the right to rebel and, by extension, the violent veto power. The right to rebel empowers citizens to resist acts of government tyranny like unlawful police violence forcibly. The violent veto power authorizes forcible resistance to duly passed but unconstitutional governmental laws and policies.
The Second Amendment provides a complementary framework for a constitutionally based political necessity defense that would exceed the jurisdiction of state laws and lower federal courts. The fit derives from the close relationship between the Second Amendment's history and the rationale undergirding the common law necessity defense. Both demonstrate doctrines meant to check government usurpations of rights belonging to the people. Both the Second Amendment and the common law necessity defense were designed to promote public good over the law's letters. In this way, the necessity defense is inherently political even when applied to criminal acts that do not have political implications, such as trespassing to avoid a storm or shooting a deer out of season to stave off hunger.
The Second Amendment encompasses several related doctrines that implicate a Second Amendment-style political necessity defense, including the right to bear arms, the right to rebel, and the right to self-defense. The right to rebel, the most relevant here, is an independent manifestation of the Framers' fear of government tyranny. Alternatively, the right to rebel could be viewed as a category of self-defense, as the Constitutional Congress understood the doctrine at the time. Self-defense, at the time, was understood to be a broad, all-encompassing doctrine best described as spectral self-defense. The concept of self-defense included protection from private and public violence perpetrated by a lone criminal or a standing army.
Irrespective of how one frames the right to rebel and self-defense as either a single doctrine or two, the modern means of vindicating the rights are distinctive. The means depend on the oppressing party's status. The modern doctrine of self-defense provides the framework for self-defense against a private party. The right to rebel supplies the foundation for thwarting a government agent or government body out of political necessity.
While the circumstantial evidence of a Second Amendment political necessity doctrine is strong, courts have yet to provide the parameters of such a doctrine. This Article has sought to forecast the Second Amendment political necessity defense's likely parameters by preserving aspects of the traditional political necessity defense compatible with the Second Amendment. Additionally, the Article has attempted to discern the parameters by discarding aspects of the conventional political necessity defense incompatible with the history of the Second Amendment. The Article has also endeavored to develop a fuller picture of the parameters by assessing the characteristics of the Second Amendment that impose limitations on the traditional political necessity defense.
The aspects of the traditional political necessity defense that are incompatible with the Second Amendment include the traditional political necessity defense's demand for a rigorous balancing of the harm created by a given criminal act against the social utility of the criminal act. Other incompatible aspects include the Ninth Circuit's proclamation that the political process is always a reasonable alternative to criminal action, the unavailability of the defense when successful harm abatement requires third party action, and the exclusion of systematic wrongs and future harms from coverage. However, the Second Amendment imposes its own limitations on the political necessity defense, including a requirement of proportionate force, proof of intentional, malicious or grossly negligent government conduct, and the failure of the political process to disperse the harm.
Associate Professor of Law, Texas Southern University Thurgood Marshall School of Law.
