Copyright 2021 by Michael C. Dorf Printed in U.S.A.
Vol. 116, No. 1
111
WHEN TWO RIGHTS MAKE A WRONG:
ARMED ASSEMBLY UNDER THE FIRST
AND SECOND AMENDMENTS
Michael C. Dorf
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.
AUTHOR—Robert S. Stevens Professor of Law, Cornell Law School.
Thanks to the scholars who organized the 2020 Symposium—Joseph
Blocher, Jake Charles, and Darrell Miller—for pointing me to very useful
source material and to Christopher Johnson for excellent research assistance.
INTRODUCTION ............................................................................................................ 112
I. ORIGINAL UNDERSTANDING ................................................................................. 115
A. Founding Era Evidence .............................................................................. 115
B. Fourteenth Amendment Incorporation ........................................................ 118
C. Semantic Originalism ................................................................................. 120
II. PRECEDENT AND NORMATIVE CONSIDERATIONS .................................................. 122
A. First Amendment: Time, Place, and Manner Restrictions on Armed
Assembly ..................................................................................................... 122
B. Second Amendment: Traditional Restrictions and the Self-Defense
Rationale..................................................................................................... 125
III. CONSTITUTIONAL ARITHMETIC ............................................................................ 129
A. Hybrid Rights and Synergy ......................................................................... 131
B. Amendment One Plus Amendment Two ...................................................... 134
CONCLUSION ............................................................................................................... 137
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
112
INTRODUCTION
Because the insurrectionists who stormed the Capitol on January 6,
2021 were clearly acting unlawfully, virtually no one has suggested that they
were acting within their constitutional rights by assembling armed with
guns.
1
Yet other recent armed assemblies are more difficult to classify as
simple lawbreaking. For example, on April 30, 2020, protesters carrying
rifles entered the Michigan statehouse to register their displeasure with
Governor Gretchen Whitmer’s order that nonessential workers temporarily
stay home to combat the COVID-19 pandemic.
2
Fortunately, no violence
occurred on that date,
3
nor later in the year, when federal agents charged like-
minded, armed anti-government activists in a plot to kidnap Governor
Whitmer.
4
The same cannot be said with respect to another 2020 assembly.
Following an August 2020 confrontation in Kenosha, Wisconsin between
Black Lives Matter protesters and counterprotesters, Kyle Rittenhouse was
charged with the fatal shooting of two unarmed individuals.
5
Likewise, death
resulted from a clash at an assembly of armed protesters at a “Unite the
Right” rally in Charlottesville, Virginia in August 2017,
6
where white
supremacist James Alex Fields Jr. murdered Heather Heyer, an unarmed
counterprotester.
7
Although Fields happened to use a car rather than a firearm
1
See Brad Heath & Sarah N. Lynch, Arrested Capitol Rioters Had Guns and Bombs, Everyday
Careers and Olympic Medals, REUTERS (Jan. 14, 2021, 4:07 PM), https://www.reuters.com/article/us-
usa-trump-protest-cases-insight/arrested-capitol-rioters-had-guns-and-bombs-everyday-careers-and-
olympic-medals-idUSKBN29J2V8 [https://perma.cc/73MG-E66R].
2
See Jacey Fortin, Michigan Governor Reinstates State of Emergency as Protests Ramp Up, N.Y.
TIMES (May 1, 2020), https://www.nytimes.com/2020/05/01/us/michigan-protests-capitol-virus-
armed.html [https://perma.cc/CV7B-XU5Q].
3
Lois Beckett, Armed Protestors Demonstrate Against Covid-19 Lockdown at Michigan Capitol,
GUARDIAN (Apr. 30, 2020, 6:54 PM), https://www.theguardian.com/us-news/2020/apr/30/michigan-
protests-coronavirus-lockdown-armed-capitol [https://perma.cc/5Z44-EQRP].
4
See Nicholas Bogel-Burroughs, What We Know About the Alleged Plot to Kidnap Michigan’s
Governor, N.Y. TIMES (Oct. 9, 2020), https://www.nytimes.com/2020/10/09/us/michigan-militia-
whitmer.html [https://perma.cc/SUB4-XZMH].
5
See Julie Bosman, Some Conservatives Rally Behind Teenager Charged in Protesters’ Deaths, N.Y.
TIMES (Oct. 9, 2020), https://www.nytimes.com/2020/10/09/us/kyle-rittenhouse-kenosha.html
[https://perma.cc/5BMD-NY4H]; Neil MacFarquhar, Suspect in Kenosha Killings Lionized the Police,
N.Y. TIMES (Oct. 16, 2020), https://www.nytimes.com/2020/08/27/us/kyle-rittenhouse-kenosha.html
[https://perma.cc/ME47-7NEB].
6
Sheryl Gay Stolberg, Hurt and Angry, Charlottesville Tries to Regroup from Violence, N.Y. TIMES
(Aug. 13, 2017), https://www.nytimes.com/2017/08/13/us/charlottesville-protests-white-
nationalists.html [https://perma.cc/3HX6-EHQK].
7
Joe Heim & Kristine Phillips, Self-Professed Neo-Nazi James A. Fields Jr. Convicted of First-
Degree Murder in Car-Ramming That Killed One, Injured Dozens, WASH. POST (Dec. 7, 2018),
https://www.washingtonpost.com/local/public-safety/jury-set-to-begin-deliberations-in-james-a-fields-
jr-car-ramming-trial/2018/12/06/65d38748-f9b3-11e8-8c9a-860ce2a8148f_story.html [https://perma.cc/
AFR8-846F].
116:111 (2021) When Two Rights Make a Wrong
113
as his weapon,
8
the Lansing, Kenosha, and Charlottesville incidents all raise
the same urgent constitutional question: Does the First Amendment, the
Second Amendment, or the two provisions in combination protect a right of
armed assembly?
If the Second Amendment does not include a right to public carriage—
as some lower courts have held it does not
9
—then there is no right to armed
assembly. A law banning or restricting public carriage would not violate the
Second Amendment, and so long as the government evenhandedly applied
that general prohibition—rather than singling out protesters for exercising
their right of expressive association while permitting other sorts of armed
gatherings—there would be no First Amendment violation either.
10
Yet there is reason to worry that the Supreme Court will hold that the
Second Amendment protects a right of public carriage.
11
Indeed, such a
ruling seems to follow from the Court’s statement in District of Columbia v.
Heller that the Second Amendment does not protect a right to carry firearms
in “sensitive places.”
12
If there were no general right to public carriage, then
every place outside the home would be sensitive, and there would have been
no reason to identify “schools and government buildings”
13
as examples of
an exception to the general right.
8
See Sheryl Gay Stolberg & Brian M. Rosenthal, Man Charged After White Nationalist Rally in
Charlottesville Ends in Deadly Violence, N.Y. TIMES (Aug. 12, 2017), https://www.nytimes.com/
2017/08/12/us/charlottesville-protest-white-nationalist.html [https://perma.cc/MUH9-4NJE].
9
See, e.g., Gould v. Morgan, 907 F.3d 659, 662 (1st Cir. 2018) (holding that a Massachusetts
firearms-licensing statute limiting the right to carry firearms does not violate the Second Amendment);
Drake v. Filko, 724 F.3d 426, 429–30 (3d Cir. 2013) (upholding the statutory requirement to show a
“justifiable need” to publicly carry a handgun under the Second Amendment); Kachalsky v. County of
Westchester, 701 F.3d 81, 96–101 (2d Cir. 2012) (upholding law restricting public carriage to persons
showing a special need for firearms under intermediate scrutiny).
10
State and local regulations would be evaluated under the Fourteenth Amendment, which
incorporates both the First and Second Amendments. See, e.g., De Jonge v. Oregon, 299 U.S. 353, 364
(1937) (assembly); McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (plurality opinion) (arms
bearing).
11
See N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 20-843 (Apr. 26, 2021), https://www.
supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-843.html [https://perma.cc/
V2JA-ME2E] (granting petition for writ of certiorari to consider “[w]hether the State’s denial of
petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”);
cf. N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1540–41 (2020) (Alito, J.,
dissenting) (contending that the city’s restrictions on transporting firearms to a shooting range violate the
Second Amendment); Rogers v. Grewal, 140 S. Ct. 1865, 1865–75 (2020) (Thomas, J., dissenting from
the denial of certiorari) (urging the Court to grant review on the question whether the Second Amendment
protects a right to public carriage and strongly indicating that, in his view, it does).
12
District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
13
Id.
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To be sure, one can make a plausible argument that the right recognized
in Heller should be restricted to the home.
14
For purposes of this Essay,
however, I assume that there is a Second Amendment right to some form of
public carriage. Even so, that assumption does not answer the question
whether there is a right of public carriage by armed groups.
Hold on. If there is a Second Amendment right to carry a firearm in
public (in a nonsensitive place) and a First Amendment right to expressive
assembly (absent a content-neutral time, place, or manner restriction, or a
strict-scrutiny-satisfying justification for limiting gatherings), then does it
not follow as a matter of simple arithmetic that there is a right of armed
assembly?
It does not. This Essay argues that there is no constitutional right of
armed groups to assemble, even assuming a constitutional right of
individuals to carry weapons in public.
I do not contend that the Constitution places no limits on the regulation
of armed gatherings. If the government restricted armed assemblies of anti-
vaccination protesters but not vaccination proponents, that would be an
impermissible viewpoint-based restriction on speech.
15
If the government
permitted armed protests by white people but not African Americans,
16
that
would violate equal protection. But evenhanded restrictions on armed
gatherings evenhandedly applied to armed protesters should not run afoul of
the First, Second, or both Amendments.
The balance of this Essay proceeds in three further Parts. Part I
examines the original understanding of the First, Second, and Fourteenth
Amendments. I find little historical support for a private right of armed
assembly. Part II turns to judicial precedent and related normative
considerations. I conclude that there is no sound basis for a right of armed
14
See Darrell A.H. Miller, Guns as Smut: Defending the Home-Bound Second Amendment,
109 COLUM. L. REV. 1278, 1303–04 (2009); Michael C. Dorf, Does Heller Protect a Right to Carry Guns
Outside the Home?, 59 SYRACUSE L. REV. 225, 231–33 (2008).
15
See Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015) (describing viewpoint discrimination as a
“‘more blatant’ and ‘egregious form of content discrimination’” than other forms of still-presumptively-
impermissible content discrimination (quoting Rosenberger v. Rectors & Visitors of the Univ. of Va.,
515 U.S. 819, 829 (1995))).
16
The police response to protests by unarmed demonstrators of all races following the murder of
George Floyd suggests that armed African-American protesters often elicit a different police response
from armed white protesters. See, e.g., Allison McCann, Blacki Migliozzi, Andy Newman, Larry
Buchanan & Aaron Byrd, N.Y.P.D. Says It Used Restraint During Protests. Here’s What the Videos
Show., N.Y. TIMES (July 14, 2020), https://www.nytimes.com/interactive/2020/07/14/nyregion/nypd-
george-floyd-protests.html [https://perma.cc/AHY2-S638] (reflecting videos of police using force on
protesters during demonstrations following the death of George Floyd); Samantha Schmidt, Teens Have
Been Gassed and Hit with Rubber Bullets at Protests. They Keep Coming Back., WASH. POST (June 6,
2020, 6:30 AM), https://www.washingtonpost.com/dc-md-va/2020/06/05/teens-protests-george-floyd-
tear-gas/ [https://perma.cc/RYS8-5MBC] (reporting protesters being gassed and hit with rubber bullets).
116:111 (2021) When Two Rights Make a Wrong
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assembly. The First Amendment protects “the right of the people peaceably
to assemble”;
17
although it is possible to assemble peaceably while armed,
large gatherings of armed individuals inherently create a substantial risk of
violence—either by themselves or in a confrontation with the police or
counterprotesters. That inherent risk justifies a ban on armed assembly.
Meanwhile, in most circumstances, armed assembly is far removed from
self-defense, which the Heller Court identified as “the core lawful purpose”
of firearms.
18
Part III looks beyond armed assembly. In some circumstances,
the courts recognize a hybrid right that is greater than the sum of its parts.
However, there must be some special reason why two or more unsuccessful
constitutional claims add up to a successful one. No such reason exists for
armed assembly.
I. ORIGINAL UNDERSTANDING
The original understanding of the First, Second, and Fourteenth
Amendments provides little support for a private right of armed assembly.
On the contrary, historical evidence from the Early Republic tends to negate
a constitutional right of armed protest. Meanwhile, to the extent that views
about arms bearing changed during the nineteenth century, they evolved
away from notions of a collective right, thereby undermining any possibility
that the First and Second Amendments might provide greater protection for
a private right of armed assembly as incorporated against the states under the
Fourteenth Amendment. Finally, to the extent that so-called semantic
originalism allows for a divergence between the original meaning of
constitutional language and the original concrete expectations of the
ratifying public, the former provides no grounds for a private right of armed
assembly beyond the normative and doctrinal considerations addressed
below in Part II.
A. Founding Era Evidence
It would be surprising to discover that the original understanding of the
First or Second Amendment protected armed assembly in the modern sense
because current views of those Amendments are anachronistic as applied to
the Early Republic. There are no Founding Era Second Amendment cases;
at least according to the Justices in the majority, Heller in 2008 was a case
of first impression.
19
To be sure, the Heller majority purported to apply the
17
U.S. CONST. amend. I (emphasis added).
18
Heller, 554 U.S. at 630.
19
See id. at 619–21 (distinguishing United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v.
Illinois, 116 U.S. 252 (1886)); id. at 621–25 (rejecting the argument that United States v. Miller, 307 U.S.
174 (1939), foreclosed a private right to possess firearms).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
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original understanding, but its views of that understanding were hotly
contested by the dissenters,
20
and the emergence of armed self-defense as the
right protected by the Second Amendment was a late-twentieth-century
phenomenon.
21
Meanwhile, Professor Jud Campbell has recently argued
forcefully that, beyond forbidding what we now call prior restraints, at the
Founding and in the Early Republic, the implications of the First
Amendment’s Speech and Press Clauses were indeterminate and contested.
22
What about “the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances”?
23
Was this language
originally understood to include mass gatherings of armed protesters? In
short, no.
Consider a 1794 incident during the Whiskey Rebellion in western
Pennsylvania, when a group of armed protesters sought to erect a “liberty
pole” to symbolize their opposition to a tax they considered oppressive.
Despite their earlier association with the American Revolution,
24
“[b]y the
time of the Whiskey Rebellion, the use of liberty poles as a prop in public
rituals” had a “radical plebeian” cast that both Federalists and Jeffersonian
Republicans—who agreed on little else—rejected.
25
Unsurprisingly, elite disdain for the erection of liberty poles was shared
by judges. Thus, when a justice of the peace was prosecuted for failing to
intervene against the protesters, the Supreme Court of Pennsylvania allowed
the case to proceed and unanimously declared that “[t]he setting up of a pole
at any time, in a tumultuous manner, with arms, is a riot.”
26
To defend a right to armed protest on historical grounds, one might try
to cabin that statement by emphasizing “tumultuous manner.” Would armed
protesters acting civilly rather than tumultuously have had their rights
recognized?
20
See id. at 652–70 (Stevens, J., dissenting) (emphasizing the militia as the focus of the Founding
generation).
21
See Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller,
122 HARV. L. REV. 191, 239 (2008) (showing that the Court’s opinion echoed late-twentieth-century
conservative activists and politicians who claimed that “the Second Amendment protects rights of the
‘law-abiding’ and invoke[d] the distinction between citizens and criminals”).
22
See Jud Campbell, Natural Rights and the First Amendment, 127 YALE L.J. 246, 286, 304–13
(2017) (describing a range of views in the Early Republic, including that these Clauses referred
exclusively to either natural rights or “more determinate customary rules”).
23
U.S. CONST. amend. I.
24
See Saul Cornell, “To Assemble Together for Their Common Good”: History, Ethnography, and
the Original Meanings of the Rights of Assembly and Speech, 84 FORDHAM L. REV. 915, 922–26 (2015)
(describing the liberty pole’s long history and its adaptation by American revolutionaries).
25
Id. at 925 & n.98.
26
Respublica v. Montgomery, 1 Yeates 419, 422 (Pa. 1795) (emphasis added).
116:111 (2021) When Two Rights Make a Wrong
117
Again, no. The Pennsylvania supreme court opinion indicates that it
was the fact of armed assembly for purposes of expression that rendered the
group riotous. The court states that “at any time” the setting up of a liberty
pole is dangerous, only then adding that it was especially so during a time of
insurrection.
27
This episode suggests an extremely narrow conception of
what constituted “peaceable assembly” in the Early Republic, one that
certainly did not include armed assemblies.
Likewise, the suppression of the Whiskey Rebellion undercuts any
notion of the Second Amendment as an early protector of armed protest. As
Professor Saul Cornell observes, “Federalists employed the well-regulated
militia protected by the Second Amendment as an agent of repression, not a
final check on federal tyranny as some Anti-Federalists had hoped.”
28
Other evidence from the Founding and Early Republic confirms that
there was little support for a constitutional right of armed protest. Dahlia
Lithwick and Olivia Li note that the statute books of some states retain an
offense of “going armed to the terror of the public,” which they either
adopted in the nineteenth century or inherited as the descendant of an English
law long predating—and thus likely informing the original public
understanding of—the U.S. Constitution.
29
Even Professor Timothy Zick,
who thinks it is possible for people to assemble peaceably notwithstanding
being armed (about which I say more below), acknowledges that such laws
have “historical lineage” “going for them,” which matters a great deal under
Heller.
30
Thus, Zick concludes that “[e]ven assuming there is a statutory or
constitutional right to open carry in a particular state, laws prohibiting ‘going
armed to the terror of the public’ may validly limit that right.”
31
That is an understatement. At least judged by the laws deemed
acceptable at the Founding, a prohibition on any substantial assembly of
armed persons would be clearly valid. Consider a 1701 English court’s
explication of the scope of the offense of going armed to the terror of the
public:
If a number of men assemble with arms, in terrorem populi, though no act is
done, it is a riot. If three come out of an ale-house and go armed, it is a riot.
27
See id. (“[S]uch an erection, when the army were known to have been on their march in support
of the constitution and the laws, could only be attributed to an avowed design of giving aid to the
insurgents . . . .”).
28
Cornell, supra note 24, at 930 (describing how the rebellion “quickly collapsed in the face of
federal power”).
29
See Olivia Li & Dahlia Lithwick, When Does Openly Carrying a Gun at a Protest Become a
Criminal Act?, TRACE (Oct. 17, 2017), https://www.thetrace.org/2017/10/open-carry-protest-gun-crime-
terror-public [https://perma.cc/YRK6-CR7X].
30
Timothy Zick, Arming Public Protests, 104 IOWA L. REV. 223, 258 (2018).
31
Id.
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Though a man may ride with arms, yet he cannot take two with him to defend
himself, even though his life is threatened.
32
To similar effect, an eighteenth-century treatise that was nearly as
widely known in the colonies as Blackstone’s Commentaries stated that
English law deemed an armed public assembly unlawful even though it
consists “of a man’s friends for the defence of his person against those who
threaten to beat him.”
33
Surveying the relevant English and colonial cases
and treatises, Mark Anthony Frassetto observes that going armed to the terror
of the public and similar “crimes sometimes involved the carrying of
weapons, and when they did, they were deemed to automatically incite
public terror.”
34
Taken as a whole, the historical evidence points strongly away from any
original public understanding of the First and Second Amendments (either
individually or in combination) as protecting a private right of armed
assembly.
B. Fourteenth Amendment Incorporation
That conclusion should sound the death knell for any such right under
the Fourteenth Amendment as well, given recent Supreme Court opinions
holding that when the Fourteenth Amendment incorporates a provision of
the Bill of Rights, it has the same content as applied to the states as it does
against the federal government, thereby rejecting a “dual-track
incorporation” theory of the Fourteenth Amendment.
35
Nonetheless, let us
consider a variation on that theory, i.e., the possibility that, as incorporated
against the states, the First and Second Amendments provide greater
protection for armed assembly than they provide against the federal
government.
In favor of such a view, we might observe that the cases rejecting dual-
track incorporation reject the application to the states of a “watered-down”
32
Queen v. Soley, 88 Eng. Rep. 935, 936–37 (Q.B. 1701) (footnotes omitted).
33
1 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 516 (John Curwood ed., London
1824) (1721). Hawkins based his analysis on cases construing the Statute of Northampton, first enacted
in 1328; it forbade all but those in the service of the King “to go nor ride armed by night nor by day” in
most public places. Id. at 488; see also Mark Anthony Frassetto, To the Terror of the People: Public
Disorder Crimes and the Original Public Understanding of the Second Amendment, 43 S. ILL. U. L.J .
61, 67 (2018) (noting that the Statute of Northampton was reenacted at least twice in the fourteenth
century). Blackstone also recognized the offense of going armed to the terror of the people, although he
did not elaborate on its scope. See 4 WILLIAM BLACKSTONE, COMMENTARIES *149.
34
Frassetto, supra note 33, at 65.
35
See Ramos v. Louisiana, 140 S. Ct. 1390, 1398 & n.32 (2020) (citing, inter alia, Timbs v. Indiana,
139 S. Ct. 682, 687 (2019)) (noting repeated rejections of “dual-track” incorporation).
116:111 (2021) When Two Rights Make a Wrong
119
version of a Bill of Rights provision.
36
Perhaps some provision of the Bill of
Rights provides greater protection against state and local action via
Fourteenth Amendment incorporation than it provides against federal action
directly. A “watered-up” version of a Bill of Rights provision applicable to
the states and their subdivisions via incorporation is at least a conceptual
possibility.
37
So how about it? Perhaps the First and Second Amendments as
understood by the public in 1791 did not include a right of private armed
assembly, but by 1868 the public understanding of those provisions had
shifted, and thus when the People ratified the Fourteenth Amendment, they
incorporated the changed understanding. Is that what happened?
In principle, the Supreme Court’s opinion in McDonald v. City of
Chicago leaves open the possibility of a right that is broader against the states
than against the federal government.
38
In addition to considering the question
whether the Fourteenth Amendment incorporates the Second,
39
it also
considers the question of how Americans understood the meaning of a right
to keep and bear arms in the period leading up to the 1868 ratification.
40
We
can imagine that the result of that inquiry might have been a discovery of a
right of armed assembly.
The result is more nearly the opposite, however. Justice Alito, writing
for the McDonald majority, describes a nineteenth-century evolution away
from a collective understanding of armed citizens:
By the 1850’s, the perceived threat that had prompted the inclusion of the
Second Amendment in the Bill of Rights—the fear that the National
Government would disarm the universal militia—had largely faded as a popular
36
Ramos, 140 S. Ct. at 1398 (internal quotation marks omitted); see Johnson v. Louisiana, 406 U.S.
356, 384 (1972) (Douglas, J., dissenting) (describing the Court’s rejection of the “watered-down” view
in favor of the view that constitutional protections enshrined in the Bill of Rights will be enforced against
state governments through the Fourteenth Amendment “according to the same standards” as they are
enforced against the federal government (quoting Malloy v. Hogan, 378 U.S. 1, 10–11 (1964))).
37
See Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed
by Governments that Are Afraid of the People”: The Public Meaning of the Second Amendment When the
Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824–25 (2010) (stating that “the core
applications and central meanings of the right to keep and bear arms and other key rights were very
different in 1866 than in 1789” and ultimately concluding that, whatever was understood at the Founding,
by Reconstruction arms bearing was understood as an individual right (quoting AKHIL REED AMAR, THE
BILL OF RIGHTS: CREATION AND RECONSTRUCTION 216 (1998))).
38
561 U.S. 742, 785–86 (2010) (plurality opinion) (discussing the Court’s rejection of a “watered-
down” version of the Fourteenth Amendment).
39
See id. at 767–70 (majority opinion) (describing the fundamentality of the Second Amendment
right).
40
See id. at 770–77.
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concern, but the right to keep and bear arms was highly valued for purposes of
self-defense.
41
Moreover, there is no indication in Justice Alito’s opinion, the sources
he cites, or, so far as I am aware, other relevant sources, that the right of self-
defense was a right that could be exercised collectively by private armed
groups. On the contrary, the adoption in the middle of the nineteenth century
of state laws banning public carriage of weapons except for personal or
familial self-defense indicates a strengthening, rather than a weakening, of
the English and colonial tradition of treating armed assembly as illicit.
42
Indeed, it is nearly impossible to imagine that, in the aftermath of the
Civil War, the Reconstruction Congress or the ratifying public would have
understood the Fourteenth Amendment to protect armed groups.
43
The Heller
Court acknowledged that the Second Amendment “does not prevent the
prohibition of private paramilitary organizations.”
44
The McDonald Court
described the right of individual firearms ownership chiefly as valuable for
their defense against threats from such outlaw groups, especially for the
African Americans who had recently been freed from bondage.
45
So much for a “watered-up” Fourteenth Amendment right of armed
assembly.
C. Semantic Originalism
Notwithstanding the compelling evidence against a historically
grounded right of armed assembly, it might be argued that the original
meanings of the First, Second, and Fourteenth Amendments nonetheless
combine to produce a constitutional right of armed assembly, even though
such a right was not widely expected or intended by the Framers or ratifiers
41
Id. at 770 (first citing MICHAEL D. DOUBLER, CIVILIAN IN PEACE, SOLDIER IN WAR 87–90 (2003);
and then citing AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 258–59
(2000)).
42
See Frassetto, supra note 33, at 75 & nn.87–88 (citing mid-nineteenth-century statutory additions
in seven states).
43
See Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI-KENT L. REV. 291,
321 (2000) (arguing that the “bloody conflagration” of the Civil War taught that both private and state-
organized armed groups pose an unacceptable threat to civil peace).
44
District of Columbia v. Heller, 554 U.S. 570, 621 (2008) (characterizing the holding of Presser v.
Illinois, 116 U.S. 252 (1886)); see also id. at 620 (stating that “no one supporting” the individual right
“interpretation” of the Second Amendment “has contended that States may not ban” paramilitary groups).
45
See 561 U.S. at 772 (quoting Senator Henry Wilson’s account of how, in Mississippi, “men who
were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating
murders and outrages upon them; and the same things are done in other sections of the country”).
116:111 (2021) When Two Rights Make a Wrong
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of any of those provisions. Semantic
46
or new originalism
47
allows for a
divergence between the original public meaning of the words of the
Constitution and the intentions and expectations of the Framers and ratifiers
of those words. To give an example that figures prominently in debates over
how to describe original meaning, the Framers and ratifiers of the Fourteenth
Amendment may have thought that it would allow continued de jure racial
segregation, but they did not write that allowance into the text.
48
Yet the substantial underdeterminacy of semantic or new originalism
relative to (the claims for determinacy of) intentions-and-expectations
originalism means that historical evidence will end up disposing of contested
constitutional questions with no greater frequency for semantic/new
originalists than it will for avowed living constitutionalists.
49
Accordingly,
with one minor exception to which I now turn, I shall not consider semantic-
originalist arguments for a right to armed assembly except insofar as they
bear on doctrinal arguments, which the next Part of this Essay addresses.
The exception concerns the word “militia.” In contemporary English,
we sometimes use that term to refer to private armed groups.
50
Might the
inclusion of the word “militia” in the Second Amendment connote protection
46
See Lawrence B. Solum, Semantic Originalism 1, 2 (Univ. of Ill. Coll. of L., Illinois Public Law
and Legal Theory Research Papers Series No. 07-24, 2008), http://papers.ssrn.com/a=1120244
[https://perma.cc/MH74-SHEA].
47
See James E. Fleming, The New Originalist Manifesto, 28 CONST. COMMENT. 539, 546 (2013)
(reviewing LAWRENCE B. SOLUM & ROBERT W. BENNETT, CONSTITUTIONAL ORIGINALISM: A DEBATE
(2011)) (comparing and contrasting Solum and Bennett’s version of new originalism with that of Keith
Whittington).
48
An early example of originalists’ turn away from intentions and expectations is found in ROBERT
H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 169 (1990), in which
Judge Bork argued that Brown v. Bd. of Educ., 347 U.S. 483 (1954), was consistent with the abstract
principles adopted by the Fourtheenth Amendment, regardless of what its Framers and ratifiers thought
about racial segregation itself. For a critique of this approach as “arbitrary and ad hoc” in its selection of
a level of generality, see RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION 271 (1996).
49
See Fleming, supra note 47, at 542 (“If we define originalism inclusively enough . . . it may not
be very useful to say that we are all originalists now.”); DAVID A. STRAUSS, THE LIVING CONSTITUTION
10–11 (2010) (“Some professed originalists . . . define ‘original meaning’ in a way that ends up making
originalism indistinguishable from a form of living constitutionalism.”); Neil H. Buchanan & Michael C.
Dorf, A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism,
106 CORNELL L. REV. 591, 633 (2021) (observing that even self-described originalists acknowledge that
constitutional “meaning is often indeterminate”).
50
See, e.g., David D. Kirkpatrick & Mike McIntire, ‘Its Own Domestic Army’: How the G.O.P. Allied
Itself with Militants, N.Y. TIMES (Feb. 8, 2021), https://www.nytimes.com/2021/02/08/us/militias-
republicans-michigan.html [https://perma.cc/BN7M-EAK6] (repeatedly describing private armed groups
in Michigan as “militia” and their members as “militiamen”); see also Militia, MERRIAM-WEBSTER,
https://www.merriam-webster.com/dictionary/militia [https://perma.cc/AG9K-ZN73] (providing as one
definition a “body of citizens organized for military service”).
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for such groups notwithstanding the Framers’ concrete intentions and
expectations regarding armed assemblies?
The short answer is no. Jurists disagree over whether at the Founding
militia meant “all males physically capable of acting in concert for the
common defense,”
51
or organized state militias.
52
Crucially, no one in this
debate argues that the term “militia” as used in the Second Amendment
referred to private armed groups. True, under the former view, which
prevailed in Heller, members of the militia—that is, adult (white) males—
might try to join together while armed, but in doing so they would not be a
militia; they would be a proper subset of the militia constituting themselves
a private armed group.
53
Any rights they might have would have to derive
from some source other than the protection that the Second Amendment
affords to the militia as such. As we have seen throughout this Part, however,
from the Founding through Reconstruction, there was no private right of
substantial numbers of armed persons to assemble in public.
II. PRECEDENT AND NORMATIVE CONSIDERATIONS
Professor Zick observed in 2018 that “[n]o reported judicial decisions
have specifically addressed the intersection between First Amendment and
Second Amendment rights at public protests.”
54
Yet that does not mean that
constitutional case law has nothing to say about the constitutionality of
restrictions on armed protests. We can parse the First and Second
Amendment case law more broadly to derive lessons about how the two
rights interact.
55
A. First Amendment: Time, Place, and Manner Restrictions on
Armed Assembly
First Amendment doctrine permits governments to impose reasonable,
content-neutral time, place, and manner (TPM) restrictions on expression,
51
District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (internal quotation marks omitted)
(quoting United States v. Miller, 307 U.S. 174, 179 (1939)).
52
See id. at 640–43 (Stevens, J., dissenting).
53
Id. at 580 (majority opinion).
54
Zick, supra note 30, at 227.
55
Much writing about the relation between the First and Second Amendments concerns the use of
First Amendment doctrine to inform Second Amendment doctrine. Compare, e.g., id. at 268–74
(acknowledging overlapping concerns but cautioning that the two “rights are obviously distinct in many
descriptive and other respects”), with John O. McGinnis, Gun Rights Delayed Can Be Gun Rights Denied,
2020 U. ILL. L. REV. ONLINE 302, 303, 308–10 (arguing, based partly on an essay by James Madison,
that the First Amendment provides a fitting analogy for the Second, “both in general and in the specific
context of civil disorder”). I view such analogies as potentially useful, see Dorf, supra note 14, at 231
(analogizing firearms possession to obscenity possession), but they are not the focus of this Essay.
116:111 (2021) When Two Rights Make a Wrong
123
including assemblies such as marches and rallies, so long as “they are
narrowly tailored to serve a significant governmental interest, and that they
leave open ample alternative channels for communication of the
information.”
56
In this context, narrow tailoring does not require that the law
employ the least restrictive means.
57
A content-neutral TPM restriction
satisfies the test if it is “not substantially broader than necessary to achieve
the government’s interest.”
58
A carefully crafted restriction on armed assembly should satisfy those
principles. To be sure, if the government were to restrict an armed assembly
because of the message that the carrying of arms conveys, the restriction
would be invalid because it would be content based.
59
In most instances,
however, restrictions will not aim at the symbolic message, if any, that
carrying firearms conveys. Most restrictions will instead aim at the risk of
violence. If the relevant government officials, using sufficiently specific
guidelines, issue permits for rallies and marches that forbid the carrying of
firearms regardless of whether the firearms communicate a message and
regardless of the expressive aims of the rallies and marches, then the core
requirement for a TPM restriction—content neutrality—will be satisfied.
Would a prohibition of mass gatherings of armed persons be narrowly
tailored to a significant government interest? The government undoubtedly
has a significant—indeed compelling—interest in preventing violence, so
this question reduces to one of narrow tailoring.
One can surely imagine circumstances in which a ban on the carrying
of firearms by an assembled group would be unnecessary to ensure the public
safety. For example, suppose that a group of octogenarian Korean War
veterans wished to participate in a memorial parade carrying their sidearms
or rifles. Forbidding them from carrying arms would not be necessary to
prevent violence. Nonetheless, application of a general ban would likely
satisfy TPM narrow tailoring for two reasons.
First, the requirement of narrow tailoring forbids government from
restricting substantially more speech than necessary. As applied to our
hypothetical group of veterans, a ban on armed gatherings does not restrict
much, if any, speech, because the veterans remain free to gather and march
56
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted)
(quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
57
See id. at 797–800.
58
Id. at 800.
59
See id. at 791–94 (treating content-neutrality and the guidance of discretion as the core criteria for
a valid TPM regulation and finding them satisfied by requirement that outdoor concerts in New York
City’s Central Park use the city’s sound engineer to limit volume).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
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together.
60
Put differently, the ban on armed gatherings leaves open an
adequate alternative avenue of communication—namely the exact same
event but without the carrying of firearms—and for that reason is narrowly
tailored.
Second, carving out exceptions to a general ban on armed gatherings
for harmless groups would itself create a risk of illicit content-based or
speaker-based
61
censorship. Individualized assessments of whether an armed
group or counterprotesters
62
are likely to engage in violence would be
difficult to separate from the identity and message of the group. Complying
with the doctrinal requirement of narrow tailoring should not require
government to violate the requirement of content neutrality. Here, more is
less.
The foregoing analysis might seem to dovetail awkwardly with the text
of the First Amendment, which protects “the right of the people peaceably
to assemble.” If our hypothetical group of veterans intend no threat by
carrying arms, might the First Amendment be said to expressly protect them
in doing so? Professor Zick makes this suggestion in noting that the mere
fact of being armed does not make protesters inherently violent or
intimidating.
63
60
See id. at 799 (describing the narrow tailoring requirement in time, place, and manner cases as a
rule that “[g]overnment may not regulate expression in such a manner that a substantial portion of the
burden on speech does not serve to advance its goals” (emphasis added)).
61
See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115–16
(1992) (treating a speaker-based limit on speech as content-based); Citizens United v. FEC, 558 U.S. 310,
340 (2010) (“The Government may also commit a constitutional wrong when by law it identifies certain
preferred speakers.”).
62
In Forsyth County v. Nationalist Movement, the Court invalidated a licensing ordinance on the
ground that permit fees varied in part based on an administrator’s assessment of the police protection
required to protect speakers from the audience reaction, which was inevitably content based. 505 U.S.
123, 134–35 (1992). Eugene Volokh, The First and Second Amendments, 109 COLUM. L. REV. SIDEBAR
97, 102 (2009), speculated that carrying firearms might enhance speech by “assuring minority speakers
that they can protect themselves against violent suppression.” Although Professor Volokh did not make
that suggestion specifically with respect to armed groups as opposed to armed individuals, Professor Zick
did. See Zick, supra note 30, at 240 (quoting Volokh, supra, and prefacing the quotation above with a
reference to “arms at public protests”). Yet the fact that unpopular speakers might feel safer if armed does
not undercut the government’s interest in forbidding armed gatherings. On the contrary, it underscores
the government interest. Unpopular speakers tend to inspire counterprotesters. Knowledge that the
unpopular speakers are armed will lead counterprotesters to arm themselves as well, thus increasing the
risk of a violent clash. To be sure, Forsyth County precludes subjecting unpopular speakers to firearms
restrictions that do not apply to popular speakers, but neither that case nor any other principle of law
requires the state to run a substantial risk of armed conflict in the streets as the price of remaining neutral
among speakers and their messages. An evenhanded ban on armed gatherings evenhandedly applied
protects the peace while avoiding the heckler’s veto risk that concerned the Court in Forsyth County.
63
See Zick, supra note 30, at 238–40. In a book published roughly contemporaneously with the
article just cited, Zick states, in the same vein, that “[t]he argument that we cannot have both First
116:111 (2021) When Two Rights Make a Wrong
125
Yet the fact that it is possible to assemble peaceably while armed does
not mean that a restriction on so doing that otherwise satisfies the TPM
doctrine is ipso facto unconstitutional. If it did, then numerous
uncontroversially permissible TPM restrictions would be invalid.
Suppose that fans of a city’s championship-winning sports team wish
to hold a ticker-tape parade to celebrate and honor the players. The city issues
a permit for a parade but, pursuant to a general policy, denies permission for
the dropping of ticker tape or other confetti for reasons of waste
management, even though the team’s owner had offered to pay any extra
cleanup costs. The application of the no-ticker-tape rule undoubtedly
impedes the fans’ ability to exercise their right to assemble peaceably in
exactly the way they most prefer, but it hardly follows that the rule thereby
violates their right to peaceable expressive assembly. Because it is content-
neutral, reasonable, and leaves open adequate alternative channels of
communication (here the exact same parade minus the ticker tape), the rule’s
application satisfies the TPM requirements and thus the First Amendment.
The same reasoning supports the application of a no-armed-gatherings
rule to protesters who wish to assemble armed. Yes, a prohibition on armed
protest impedes the protesters’ ability to assemble peaceably in exactly the
way they most prefer, but it does not follow that the rule’s application thereby
violates their right to peaceable expressive assembly. So long as the
restriction serves a substantial government interest—whether in waste
management, preventing a breach of the peace, or something else—the
application of the rule to any assembly will be constitutional if it satisfies the
TPM requirements, even if the rule could be said to be overinclusive with
respect to some particular assembly.
In short, the evenhanded application of content-neutral TPM
restrictions to armed assemblies would not violate the First Amendment.
B. Second Amendment: Traditional Restrictions and the Self-
Defense Rationale
Second Amendment doctrine is considerably less developed than First
Amendment doctrine. The Court’s cases—and thus far there are only two
that resulted from plenary consideration, Heller and McDonald—identify the
Amendment and Second Amendment rights at protests is factually incorrect.” TIMOTHY ZICK, THE
DYNAMIC FREE SPEECH CLAUSE: FREE SPEECH AND ITS RELATION TO OTHER CONSTITUTIONAL RIGHTS
218 (2018); see also id. at 229 (“[I]t is possible to have both free speech and firearms at public protests.”).
He nonetheless concludes that “authorities are far from powerless” to impose various limits on the
carrying of arms in public protests. Id. (On the assumption that most readers will have easier access to
Zick’s article than to his book, I generally refer to the former.)
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
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kinds of arms the right covers
64
and validate “such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons and the
mentally ill,’ ‘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.’”
65
Neither Heller nor
McDonald nor any other case directly indicates whether laws restricting
gatherings of armed individuals (for expressive or other purposes) violate the
Second Amendment.
Nonetheless, there is substantial indirect support in the existing case
law for the permissibility of restrictions on armed gatherings. That support
takes two primary forms.
First, as discussed in Part I, both the pre- and post-enactment history
belie any suggestion that the individual right to carry arms included the right
to gather in public with others bearing arms. At least one current Supreme
Court Justice believes that Heller and McDonald require evaluation of laws
claimed to infringe the right “based on text, history, and tradition, not by a
balancing test such as strict or intermediate scrutiny.”
66
If that view were to
prevail, the longstanding history and tradition of criminalization would
dispose of any claimed right of private armed gatherings.
Second, armed gatherings of protesters or other private groups do not
serve the purposes of the Second Amendment. According to Justice Scalia’s
opinion in Heller, the prefatory clause does not limit the operative clause but
announces a purpose, which may be used to resolve ambiguity.
67
The opinion
goes on to argue that the operative clause protects the individual right to
firearms possession principally for self-defense, which serves the purpose of
the right’s codification by ensuring that when called to militia service (to
resist federal tyranny or otherwise), citizens will have arms.
68
To see why the Second Amendment’s militia purpose is not served by
a right of private armed gatherings, it may be helpful to note what the Court
64
See District of Columbia v. Heller, 554 U.S. 570, 625 (2008) (protecting firearms “typically
possessed by law-abiding citizens for lawful purposes”).
65
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion) (quoting Heller,
554 U.S. at 626–27).
66
Heller v. District of Columbia, 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting);
see also id. at 1273 (observing that the Heller Court did not ask whether the challenged law was
“necessary to serve a compelling government interest in preventing death and crime” (citing Eugene
Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and
a Research Agenda, 56 UCLA L. REV. 1443, 1463 (2009))); Joseph Blocher, Categoricalism and
Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. REV. 375, 380 (2009) (describing but
criticizing “Heller’s endorsement of categoricalism”).
67
Heller, 554 U.S. at 577–78.
68
See id. at 599 (stating that even if “self-defense had little to do with the right’s codification[,] it
was the central component of the right itself”).
116:111 (2021) When Two Rights Make a Wrong
127
did and did not mean by holding that the provision protects an individual
right. Heller clearly rejects what has sometimes been called the “collective
right” view of the Second Amendment, under which “the people” to whom
it refers are a collective entity rather than individuals.
69
Of course,
individuals can gather, so the mere rejection of the collective right view does
not necessarily entail rejection of a right to armed gatherings. Free speech is
an individual right, yet it protects a right of individuals to join together to
mutually amplify their respective individual voices, and it would be sensibly
understood to protect such group speech even if the First Amendment did
not independently contain a right of assembly. So why doesn’t the right of
individuals to possess and carry firearms likewise imply a right to gather
together to do so?
The answer is that while Heller rejected the collective-right view, it did
not reject what we might call the federalism-focused view. Although the
Heller Court concluded that the term “free [s]tate” in the Second
Amendment does not refer to each State of the Union,
70
it nonetheless
recognized that the chief reason that the Framers and ratifiers codified the
right to keep and bear arms was “the threat that the new Federal Government
would destroy the citizens’ militia by taking away their arms.”
71
Moreover,
the Court cited Colonial and Early Republic Era state provisions protecting
a right to bear arms that specifically identified protecting the state among
their purposes.
72
Perhaps most importantly, the central insurrectionist text—
Madison’s Federalist No. 46—is through and through an argument for arms
as a means of protecting the states against the federal government, not as a
means for organizing private armed violence against state governments or
other targets.
73
Could it nonetheless be argued that while the Second Amendment itself
therefore provides no right of private armed gatherings, the Fourteenth
Amendment’s incorporation of the right against the states does? It could be
so argued, but Justice Alito’s majority opinion in McDonald does not deem
the Second Amendment incorporated on that basis. He cites self-defense as
69
See id. at 579–80. For additional discussion of the collective versus individual rights interpretation
of the Second Amendment, see Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the
Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 5, 46–50 (1989).
70
See Heller, 554 U.S. at 597.
71
Id. at 599.
72
See id. at 601–03.
73
See THE FEDERALIST NO. 46, at 243 (James Madison) (Ian Shapiro ed., 2009) (imagining a military
contest between a federal “standing army” and “State governments” defended by “a militia” comprising
“citizens with arms in their hands, officered by men chosen from among themselves, fighting for their
common liberties, and united and conducted by governments possessing their affections and
confidence”).
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the right that the Fourteenth Amendment incorporated,
74
and to the extent
that he discusses private armed groups, it is, as noted above in Part I, in the
context of condemning the private armed groups that were terrorizing newly
freed African Americans in the post-Civil War South.
75
To be sure, the insurrectionist Second Amendment lives on in extremist
thought. Chillingly, nominally mainstream politicians like Sarah Palin,
Donald Trump, and others sometimes invoke the Second Amendment as
guarantor of a right to engage in political violence.
76
However, the more staid
and sober judicial wing of the conservative movement abandoned
insurrectionism in Heller because domestic terrorism in the 1990s had
tarnished its brand.
77
In so doing, the Heller Court thereby abandoned a
conception of the right that might encompass armed assembly. One day
popular constitutionalism might produce a judicially recognized Second
Amendment right to armed insurrection and thus to armed assembly, but that
day has not yet arrived.
What about the supposed core of the Second Amendment: the right to
armed self-defense? Might there not be occasions in which gathering with
other armed individuals facilitates self-defense? In the same way that
international law recognizes “the inherent right of individual or collective
self-defence” in response to “an armed attack,”
78
might the right of self-
defense against private violence include a right of collective self-defense?
Neither Heller nor McDonald directly answers that question. Both cases
invoke the image of an individual using firearms to fight off an attacker. Yet
given the proverbial wisdom that there is safety in numbers, it seems but a
small step from that scenario to one in which, say, two or three women
walking home late at night might choose to travel together. If each one has a
constitutional right to carry a handgun in her purse, can the state put them to
the difficult choice between walking alone and carrying a firearm?
Even if the answer to that question is no, that would not establish a right
of a substantial group to armed assembly. At most, it might mean that laws
74
See McDonald, 561 U.S. at 767 (“Self-defense is a basic right, recognized by many legal systems
from ancient times to the present day.”).
75
See Frassetto, supra note 33, at 75; see also supra note 45 and accompanying text.
76
See Tierney Sneed, Trump Just the Latest on Hard Right to Call for “2nd Amendment Remedies,”
TALKING POINTS MEMO (Aug. 11, 2016, 6:00 AM), https://talkingpointsmemo.com/dc/trump-second-
amendment-people-context [https://perma.cc/7XJW-TLMA] (describing comments by Palin, Trump, and
three other Republican politicians).
77
See Siegel, supra note 21, at 243 (explaining how the Heller Court accepted arguments made by
Americans who “appeal[ed] to the law-and-order Second Amendment as the founders’ Second
Amendment and [made] claims on others outside their normative community through it—as they could
not if they were to embrace a republican Second Amendment that authorized violent insurrection and the
forms of originalism the militias practiced in the 1990s”).
78
U.N. Charter art. 51.
116:111 (2021) When Two Rights Make a Wrong
129
like those forbidding going armed to the terror of the public would be
vulnerable to as-applied challenges by small groups of vulnerable
individuals arming themselves for self-defense. That result would not
threaten the facial validity of such laws or their application to more
dangerous armed groups, either under the look-directly-to-text-history-and-
tradition approach or some other standard.
Thus, while a handful of individuals clothed in a presumptive right of
public carriage might have a plausible claim to Second Amendment
protection when appearing together in public, the same cannot be said for a
large group of armed individuals gathering for the purpose of protesting. If
holding a rally or march that is lawful because it complies with state or local
TPM requirements, such a group should receive police protection against
possible violence from counterprotesters.
79
If authorities charged with
protecting the public safety have a genuine concern that clashes might erupt
between protesters and counterprotesters,
80
that very concern would warrant
the application of a general prohibition on armed assembly to both groups in
order to reduce the risk of lethal violence.
III. CONSTITUTIONAL ARITHMETIC
We have seen that neither history nor doctrine supports a right to armed
assembly under either the First or Second Amendment. Might the two
provisions nonetheless combine to produce such a right?
79
In an article published before Heller, I suggested (but did not endorse) the possibility that the
Second Amendment and/or due process could be construed to guarantee a right of armed self-defense for
individuals and communities that receive little or no protection against private violence from the police.
See Dorf, supra note 43, at 337–38, 341–42. In the wake of Heller and McDonald, that suggestion could
be adapted to entail a right to carry firearms that might otherwise be constitutionally forbidden if police
protection were grossly inadequate. Such an exception to Heller’s exceptions could then include a limited
right of armed assembly for inadequately protected groups, despite the general permissibility of
forbidding armed gatherings. I do not endorse this possibility, however, partly because of the danger to
public safety that would arise from the inevitable uncertainties attending the question of when police
protection qualifies as adequate.
80
Here and elsewhere in this Essay, I focus on preventing violence as the chief interest government
aims to promote in limiting armed gatherings. In so doing, I do not mean to deny that restrictions on
armed gatherings (and other public carriage) may promote other interests, such as the broader interests in
security and liberty that may be jeopardized by the mere threat firearms possession poses. See Joseph
Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere: A New Account of Public Safety
Regulation Under Heller, 116 NW. U. L. REV. 139, 188–89 (2021) (“In various contexts, the threat of gun
violence undoubtedly chills the exercise of rights, depriving Americans of the security to speak, protest,
learn, shop, pray, and vote.”).
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The short answer is no. Consider an analogy. There is a substantive due
process right of adults to have consensual sex in private.
81
There is also a
substantive due process right to freedom from physical restraint that includes
the right to appear in public.
82
Do these rights combine to produce a right of
consenting adults to have sex in public? Of course not. A right to sex in
private, by definition, does not include a right to sex in public. A right to
appear in public may include various ways of appearing in public (such as
wearing a tutu or a MAGA hat), but naked and in flagrante delicto is not
among those ways. Thus, neither right by itself encompasses a right to have
sex in public, and so a law forbidding public sexual acts violates neither
right. There is no reason to think that combining them produces a result
different from considering each right separately.
That would end the matter, except that the Supreme Court has
sometimes held that two or more constitutional provisions that are not
separately sufficient to establish some right produce that right when
combined. Plyler v. Doe seemed to generate a right to free public education
from principles of federal supremacy and equal protection that do not
individually require it.
83
Employment Division v. Smith stated that free
exercise and either expressive freedom or parental rights (via substantive due
process) can combine to create a “hybrid” right to religious exceptions from
religiously neutral laws.
84
United States v. Windsor combined principles of
equal protection and federalism to invalidate a provision of the federal
Defense of Marriage Act before the Court was prepared to say that there was
a constitutional right to same-sex marriage.
85
81
See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (invalidating Texas’s prohibition on same-sex
sodomy); id. at 564 (“The petitioners were adults at the time of the alleged offense. Their conduct was in
private and consensual.”). A federal appeals court declined to read Lawrence as establishing a substantive
due process right to private consensual sex, see Williams v. Att’y Gen., 378 F.3d 1232, 1238, 1250 (11th
Cir. 2004) (upholding ban on the sale of sex toys and “declin[ing] to extrapolate from Lawrence and its
dicta a right to sexual privacy”), but that view is highly dubious, see Laurence H. Tribe, Lawrence v.
Texas: The “Fundamental Right” that Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1917 (2004)
(taking note both of the Court’s bottom line and “passage after passage in which the Court’s opinion
indeed invoked the talismanic verbal formula of substantive due process but did so by putting the key
words in one unusual sequence or another”). In any event, nothing in my analysis turns on there actually
being such a fundamental right. We may assume one arguendo for present purposes.
82
See Doe v. Bolton, 410 U.S. 179, 213 (1973) (Douglas, J., concurring) (describing the “freedom
to walk, stroll, or loaf”). To say that there is a right to be out and about in public is not to deny that the
government may restrict that right based on sufficient reasons, such as to control the spread of a deadly
disease. Cf. S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J.,
concurring) (“Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the
politically accountable officials of the States ‘to guard and protect.’” (quoting Jacobson v. Massachusetts,
197 U.S. 11, 38 (1905))).
83
457 U.S. 202, 221–26 (1982).
84
494 U.S. 872, 881–82 (1990).
85
570 U.S. 744, 769, 775 (2013).
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Plyler, Smith, and Windsor do not stand alone. As Section III.A shows,
the list of synergistic constitutional cases is substantial. But as Section III.B
explains, the sex-in-public case exemplifies the more general pattern. There
must be some special reason to conclude that the whole is greater than the
sum of the parts. And there is no such reason when it comes to armed
assembly.
A. Hybrid Rights and Synergy
In daily life, we often encounter circumstances in which two or more
considerations that are not individually sufficient to produce an outcome
combine to do so. Perhaps neither low cost nor fuel efficiency by itself
suffices to persuade you to buy a particular car, but you might purchase one
that is both inexpensive and fuel efficient. You might choose to live in a
neighborhood with good but not the best public schools, good but not the
best access to public transportation, and good but not the best community
organizations, because no other neighborhood provides as good a
combination of the factors you value. We routinely make all-things-
considered judgments of this sort.
So too in law, including constitutional law, we sometimes find totality-
of-the-circumstances tests.
86
They typically involve various factors that go
into evaluating some particular set of facts under a constitutional provision,
87
but various constitutional provisions and doctrines can also combine to form
some new totality.
88
Plyler and Windsor, each of which combines individual rights with
federalism, seem easiest to justify. Education, the Court says in Plyler, is not
a fundamental right for equal protection purposes,
89
but it is sufficiently close
86
Examples commonly arise in the Fourth Amendment context. Consider the test for probable cause
to arrest, which the Supreme Court has described as a “fluid concept” that turns on an “assessment of
probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal
rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). Likewise, a “seizure” occurs when, “in view of all of
the circumstances surrounding the incident, a reasonable person would have believed that he was not free
to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
87
For example, the totality-of-the-circumstances standard for probable cause calls for consideration
of an informant’s reliability, veracity, and basis of knowledge. Gates, 462 U.S. at 230–33. The following
circumstances indicate a seizure: “the threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554.
88
For a thoughtful typology, see Michael Coenen, Four Responses to Constitutional Overlap,
28 WM. & MARY BILL RTS. J. 347, 350–51 (2019), which explains that when faced with circumstances
implicating more than one constitutional provision or doctrine, the courts variously “separate,”
“combine,” “consolidate,” or “displace.” This Section discusses cases that Coenen classifies as combining
or consolidating, albeit substantially more critically than Coenen, whose approach is largely descriptive.
89
Plyler v. Doe, 457 U.S. 202, 223 (1982) (citing San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 28–39 (1973)).
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to one to call for some special solicitude, at least where the state completely
denies some class of persons a free public education.
90
In some contexts, laws
that come close to violating the Constitution might trigger prophylactic
rules.
91
In others, they might call for a clear statement rule.
92
In Plyler, the
state law’s proximity to a fundamental right triggers an institutional response
rooted in federalism: perhaps a state or local government can deny public
education to undocumented immigrant children, but only if the federal
Congress authorizes that drastic step.
93
Windsor likewise combines federalism with equal protection. In
Section 3 of the Defense of Marriage Act, Congress departed from the
longstanding tradition of incorporating and thus deferring to state family law
with respect to marriages.
94
The Court hints but does not hold that this
departure violates the Tenth Amendment;
95
however, the departure suffices
to show that the law reflected impermissible animus in violation of “equal
protection principles applicable to the Federal Government.”
96
The fact that
Congress came close to the line of one constitutional limit leads to a special
sensitivity with respect to another constitutional limit.
What makes Windsor plausible as a constitutional combo meal is not
the particular à la carte items combined but the mechanism for combining
them. A close call as a matter of federalism makes the Justices suspicious
about congressional motivation, which is an equal protection concern. Note,
however, that there is no distinctively constitutional combinatorial logic at
play. It happens in Windsor that the departure from constitutionally infused
principles of deference to state family law triggers the Court’s heightened
sensitivity to an equal protection violation, but some other, sub-
constitutional factor might have been the trigger instead. For example, in the
90
See id. at 221–24.
91
For example, in Miranda v. Arizona, 384 U.S. 436, 467 (1966), the Court articulated prophylactic
safeguards that are “not themselves rights protected by the Constitution but were instead measures to
insure” the protection of the Fifth Amendment privilege against compelled self-incrimination. Michigan
v. Tucker, 417 U.S. 433, 444 (1974). But see Dickerson v. United States, 530 U.S. 428, 439 (2000)
(characterizing Miranda as “announcing a constitutional rule”).
92
See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996) (citing Blatchford v. Native Village
of Noatak, 501 U.S. 775, 786 (1991) (stating that congressional intent to abrogate state sovereign
immunity “must be obvious from ‘a clear legislative statement’”)); Pennhurst State Sch. & Hosp. v.
Halderman, 451 U.S. 1, 17 (1981) (holding that Congress may impose conditions on states per the
Spending Clause only if it states the conditions “unambiguously”).
93
See Plyler, 457 U.S. at 224–25.
94
See United States v. Windsor, 570 U.S. 744, 768 (2013).
95
Id.
96
See id. at 769–70 (concluding that the Defense of Marriage Act violates basic due process
principles).
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133
Shaw v. Reno
97
line of cases, departures from traditional districting principles
may alert the Court to the possibility that race was impermissibly used as a
predominant factor in drawing boundaries, even though the traditional
districting principles are not themselves constitutional requirements.
98
While the combinatorial logic of Windsor works, there are other cases
in which the Court seems to simply count up the number of constitutional
near-violations to find that the whole is greater than any part. The most
notorious example is Griswold v. Connecticut’s inference of a
constitutionally protected zone of privacy that encompasses the right of
married couples to use contraception in their homes from the First, Third,
Fourth, Fifth, and Ninth Amendments, as well as their various penumbras
and emanations.
99
The result is not wrong. One could readily say, as Justice
Harlan did in his concurrence, that the Due Process Clause itself is the source
of the right.
100
In so saying, one might even invoke the same enumerated
rights on which the Griswold majority relied, but for a different reason:
instead of engaging in a somewhat mysterious constitutional alchemy,
Justice Harlan’s approach interpolated and extrapolated an unenumerated
right of privacy.
101
The majority opinion by Justice Douglas, by contrast,
seems to suggest that even though the Connecticut contraceptive-use law
does not violate or even come very close to violating any of the constitutional
provisions invoked, the sheer number of provisions that have something to
say about something related to privacy means they add up to a distinctive
constitutional right.
102
97
509 U.S. 630, 649 (1993).
98
See Miller v. Johnson, 515 U.S. 900, 916 (1995) (requiring that a plaintiff bringing an equal
protection challenge against a state’s districting plan “must prove that the legislature subordinated
traditional race-neutral districting principles” such as compactness and contiguity).
99
381 U.S. 479, 484–85 (1965).
100
See id. at 500 (Harlan, J., concurring).
101
See Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (explaining that the “liberty”
in the Fourteenth Amendment’s Due Process Clause “is not a series of isolated points pricked out in terms
of” particular constitutional guarantees but rather “a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions and purposeless restraints”).
102
On the Griswold majority’s explicit logic, there is no violation of any of the enumerated rights,
but one could write a persuasive opinion in which the Connecticut law would violate the Fourth
Amendment itself, given the mechanisms needed to enforce it in the home. See Sherry F. Colb, The
Qualitative Dimension of Fourth Amendment ‘Reasonableness,’ 98 COLUM. L. REV. 1642, 1695–97
(1998) (describing the Griswold opinion’s logic as apparently “flawed,” but explaining that a search could
be deemed reasonable under the Fourth Amendment if and only if the seriousness of the offense for which
the police seek evidence justifies the intrusiveness of the search). Professor Colb’s proposal also makes
sense of Stanley v. Georgia, 394 U.S. 557 (1969), which engages in seemingly unpersuasive
constitutional addition to find First Amendment protection for possessing obscenity in the home. See id.
at 1700–04 (reconceptualizing Stanley as a Fourth Amendment case in which, under the Fourth
Amendment, the slight government interest fails to justify a home search).
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The Smith Court likewise described a category of “hybrid” rights
combining free exercise with “communicative activity or parental
right[s],”
103
but it did not offer any account of why the combination should
be greater than the sum of the parts. Rather, the hybrid category seems more
like a post hoc rationalization for cases decided on other grounds; its
principal purpose was to enable Justice Scalia, speaking for the Smith
majority, to claim that the Court had not previously recognized exceptions
to generally applicable laws purely as a matter of free exercise.
104
Whereas Griswold and Smith employ hybridity without adequate
justification or explanation, sometimes the Court fails to recognize an
appropriate instance of hybridity.
105
Consider Zurcher v. Stanford Daily, in
which the Court held that the police need not satisfy a heightened need
requirement to obtain and execute a warrant to search the premises of a
newspaper for evidence of third-party crime.
106
Although the Court arguably
reached the wrong result,
107
at least it considered the possibility that the First
Amendment might lead to the application of the Fourth Amendment to the
press with special sensitivity.
108
B. Amendment One Plus Amendment Two
How should the Court decide whether the combination of two
provisions or doctrines that do not individually invalidate some government
action nonetheless do so in combination? Various scholars have proposed
criteria, backed by thoughtful arguments.
109
I have little to add to their
103
Emp. Div. v. Smith, 494 U.S. 872, 882 (1990).
104
Id. at 881–82.
105
For additional examples of appropriate judicial recognition of hybridity, see Coenen, supra note
88, at 359–60, which discusses the extra force given to vagueness doctrine in free-speech cases, the
connection between free speech and assembly, and the equal protection implications of impecuniousness
on court access.
106
436 U.S. 547, 560 (1978).
107
See id. at 571–72 (Stewart, J., dissenting) (pointing to disruption of news operations and the
potential to compromise sources).
108
See id. at 563–67 (majority opinion) (acknowledging the shared historical origins of the First and
Fourth Amendments but concluding that no special solicitude should result).
109
My own views come closest to those expressed in Kerry Abrams & Brandon L. Garrett,
Cumulative Constitutional Rights, 97 B.U. L. REV. 1309, 1314 (2017) (rejecting hybrid rights because
“two half violations do not make a whole” but endorsing “intersectional rights” of the sort championed
by Justice Kennedy in Obergefell v. Hodges, 576 U.S. 644 (2015), “which reads equal protection and due
process as mutually reinforcing”); see Michael C. Dorf, Symposium: In Defense of Justice Kennedy’s
Soaring Language, SCOTUSBLOG (June 27, 2015, 5:08 PM), https://www.scotusblog.com/2015/06/
symposium-in-defense-of-justice-kennedys-soaring-language/ [https://perma.cc/G2PD-WULY]
(arguing that equal protection concerns provide a limiting principle on the scope of the due process
marriage right). For additional thoughtful proposals regarding how to combine constitutional provisions,
116:111 (2021) When Two Rights Make a Wrong
135
proposals, so I shall instead emphasize that they all address unusual
circumstances.
However, in the usual circumstances, a different default applies: if the
application of a law or policy violates neither constitutional provision or
doctrine C
1
nor C
2
, there is no general reason to think that it violates the
combination of C
1
and C
2
. To be sure, there may be some special reason to
think that some particular C
1
and C
2
combine synergistically in some
contexts, but absent such a special reason, the government may defeat
constitutional claims one at a time.
Put differently, the key characteristics of the example of sex in public
are quite typical of the sorts of circumstances that might be thought to
implicate more than one constitutional provision or doctrine. Consider as
another example of such putative combinations the federal statute that
forbids “[t]he introduction or delivery for introduction into interstate
commerce of any food, drug, device, tobacco product, or cosmetic that is
adulterated or misbranded.”
110
It could be unsuccessfully challenged as
beyond Congress’s power under the Commerce Clause, perhaps on the once-
prevailing-but-now-discredited theory that Congress may regulate goods
while they are in interstate commerce but not before or after.
111
The same law
could be unsuccessfully challenged as a violation of the supposed First
Amendment rights of the seller of a product to label that product any way the
seller chooses.
112
We could imagine that the failed Commerce Clause and
First Amendment challenges might combine to yield a successful challenge,
but we need some special reason for thinking so. After all, every valid law
can be unsuccessfully challenged under virtually every constitutional
provision. For instance, one could also bring an unsuccessful challenge to
the misbranding prohibition on the ground that it violates constitutional
provisions that plainly have no relevance. For example, one might
see Coenen, supra note 88, which distinguishes among separation, combination, consolidation, and
displacement of rights; Michael Coenen, Combining Constitutional Clauses, 164 U. PA. L. REV. 1067,
1070 (2016), which explains that the Court’s cases sometimes recognize that “multiple rights-based
provisions of the Constitution might sometimes require the invalidation of government action that would
be permitted if each provision were considered in isolation”; and Deborah Hellman, The Epistemic
Function of Fusing Equal Protection and Due Process, 28 WM. & MARY BILL RTS. J. 383, 392 (2019),
which suggests an “[e]pistemic rational[e] for fusing equal protection and due process [in which] the
values of equality and liberty are related in a manner that allows each to guide us as to the meaning of the
other.”
110
21 U.S.C. § 331.
111
See United States v. Darby, 312 U.S. 100, 115–17, 121–23 (1941) (disavowing the theory
described in the text).
112
See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 563–64 (1980)
(protecting commercial speech but acknowledging government authority to regulate “misleading”
commercial speech).
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unsuccessfully argue that the law is a bill of attainder or violates the
Guarantee Clause. The mere accumulation of unsuccessful challenges should
not bring us any closer to a successful one.
113
To be sure, the bill of attainder and Guarantee Clause challenges to the
misbranding statute are veritable non sequiturs, whereas the Commerce
Clause and First Amendment challenges are at least in the ballpark of a
successful challenge. And we can concede that being in the ballpark is a
necessary condition for a successful synergy claim (as in Windsor). But
constitutional law is not horseshoes or hand grenades. Being close to a
violation of two or more constitutional provisions or doctrines does not
produce a constitutional violation, absent some reason for thinking that there
is something special about the combination. Being in the same ballpark as
two or more constitutional provisions or doctrines is a necessary but not a
sufficient condition for synergy.
Neither the First Amendment right to expressive assembly nor the
(putative) Second Amendment right of individuals to carry firearms in public
protects a right of armed assembly. Is there some special reason to think that
the two rights in combination do? It is hard to see why that would be so. The
same considerations of public safety that warrant rejecting each claim of
right separately apply to their combination.
Indeed, those considerations more plausibly point to constitutional
subtraction rather than addition or synergy. Even though it is possible to
assemble peaceably while carrying firearms, the carrying of arms by
protesters increases the likelihood that their assembly will lead to a breach
of the peace. Meanwhile, the larger the private group, the less need they have
to be armed for self-defense and the greater the threat they pose to the militia
purpose of the Second Amendment.
Sometimes the whole is greater than the sum of the parts, but there must
be some special reason why. With respect to the First and Second
Amendments, there is no such reason. The right to peaceably assemble plus
the presumed right of individuals to carry firearms do not add up to a right
of armed assembly.
113
Criticizing the “curious doctrine” of hybrid rights employed in Smith, Justice Alito recently made
a similar point. He wrote that the idea of a hybrid right in Smith
seems to be that if two independently insufficient constitutional claims join forces they may merge
into a single valid hybrid claim, but surely the rule cannot be that asserting two invalid claims, no
matter how weak, is always enough. So perhaps the doctrine requires the assignment of a
numerical score to each claim. If a passing grade is 70 and a party advances a free-speech claim
that earns a grade of 40 and a free-exercise claim that merits a grade of 31, the result would be a
(barely) sufficient hybrid claim. Such a scheme is obviously unworkable and has never been
recognized outside of Smith.
Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1915 (2021) (Alito, J., concurring).
116:111 (2021) When Two Rights Make a Wrong
137
CONCLUSION
The superficial appeal of a right to armed assembly, constructed from
the First Amendment right to assemble and the Second Amendment right to
bear arms, does not survive careful analysis. Text, history, precedent, and
simple common sense all yield the same conclusion: the First and Second
Amendments do not protect a right of armed assembly, either individually or
in combination.
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