Black Rebellion and the Second Amendment Political Necessity

William & Mary Bill of Rights Journal William & Mary Bill of Rights Journal

Volume

31 (2022-2023)

Issue 3

Article 5

3-2023

Let My People Go, Part One: Black Rebellion and the Second Let My People Go, Part One: Black Rebellion and the Second

Amendment Political Necessity Defense Amendment Political Necessity Defense

Kindaka Sanders

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Let My People Go, Part One: Black Rebellion and the Second Amendment

Political Necessity Defense

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LET MY PEOPLE GO, PART ONE: BLACK REBELLION

AND THE SECOND AMENDMENT POLITICAL

NECESSITY DEFENSE

Kindaka Sanders

ABSTRACT

This Article argues that when an individual or group acts to protect a

government-assailed constitutional right by criminal means, the doctrine of political

necessity may serve as a constitutionally protected defense. The doctrine of political

necessity builds on the common law doctrine of necessity. The necessity doctrine,

also referred to as the “choice of evils” defense, exonerates an individual who

creates a social harm to allay a greater harm to herself or others. Both state and

federal courts have been especially reluctant to allow the use of the necessity

defense in cases with political implications, in which the defendant acts to address

a government-enabled social wrong.

The leading federal case on political necessity, United States v. Schoon, held

that the defense is per se inapplicable in cases of indirect purposeful lawlessness, in

which the defendant violates a law unrelated to the law the defendant endeavored

to change. Under this rule, acts of purposeful lawlessness critical to this country’s

founding—e.g., the Boston Tea Party and the Stamp Act Riots—and crucial to its

development—e.g., the illegal marches that made the civil rights movement

successful—would have been deemed more harmful to society than beneficial, as

a matter of law.

This Article argues that all forms of purposeful lawlessness—direct or indirect,

forcible or peaceable—are protected under the Second Amendment. That is, the Sec-

ond Amendment embraces its own version of the political necessity defense. The

history of the Second Amendment as well as the Supreme Court’s two most influential

Second Amendment cases, District of Columbia v. Heller and McDonald v. Chicago,

provide the proof. This Article explores this proof in detail. It also highlights tu-

multuous social upheavals that have occurred throughout the course of American

history—including the country’s founding acts of resistance as well as major slave

rebellions and modern urban riots growing out of analogous oppressions—and

describes how they provide proof of the Second Amendment political necessity

defense, thus providing context for the types of social wrongs potentially covered

by the defense. Race massacres are also discussed, to provide both examples of

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

Law.

765

766 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

when the defense is clearly not applicable and additional evidence as to why certain

counter-government acts of forcible resistance may be justified under the Second

Amendment. Finally, this Article uses the recent storming of the Capitol as a test

case for the application of the Second Amendment political necessity defense.

NTRODUCTION .................................................766

I. T

HE DOCTRINE OF POLITICAL NECESSITY ..........................772

II. T

HE POLITICAL NECESSITY DEFENSE .............................775

A. Types of Political Necessity .................................777

1. Civil Disobedience .................................... 777

2. Twentieth-Century Applications of the Doctrine .............780

3. The Schoon Dilemma .................................. 782

B. Riots, Rebellions, and Other Forcible Acts of Political Necessity.... 785

1. The White Riot ....................................... 798

2. The Black Riot........................................804

C. The Slave Rebellion–Black Riot Continuum and the Political

Necessity Defense......................................... 822

III. I

NTRODUCTION TO PART TWO ................................... 824

NTRODUCTION

On January 6, 2021, hundreds of supporters of President Donald Trump stormed

the U.S. Capitol, assaulting, looting, and threatening to hang elected congressional

officials. Many of the participants claimed afterwards that the then-president im-

plicitly commanded them to do whatever it took to stop the election count scheduled

for that day. It was the first attack on the Capitol building since British forces

torched it along with other local landmarks in 1814, and the only time that U.S.

citizens have attacked the seat of the national government. However, it was hardly

the first siege of government from within the United States.

In May of 1822, Denmark Vesey planned such a siege. A formerly enslaved

African Methodist Episcopal (AME) minister, he and several other African Ameri-

can men made an elaborate plan to engage and neutralize enslavers in Charleston,

South Carolina, and liberate their bound brethren.

They planned to battle their way

to the Charleston Harbor and commandeer ships so they could sail to the recently

formed independent Black nation of Haiti in the Caribbean, home of the most suc-

cessful slave insurrection in world history.

The Africans in Haiti, led by Toussaint

DEBORAH G. WHITE ET AL., FREEDOM ON MY MIND: A HISTORY OF AFRICAN AMERI-

CANS WITH DOCUMENTS, VOL. 2: SINCE 1865, at 178 (1st ed. 2016).

DOUGLAS R. EGERTON, HE SHALL GO OUT FREE: THE LIVES OF DENMARK VESEY 126

(2d ed. 2004); James N. Spady, Power and Confession: On the Credibility of the Earliest

2023] LET MY PEOPLE GO,PART ONE 767

Louverture, outwitted and outmaneuvered the armed forces of one of the greatest

military commanders in world history, Napoleon Bonaparte, en route to winning

their freedom as well as their independence.

Vesey inspired his followers to rebel

by placing their freedom struggle in the context of the Hebrew people of biblical

lore who—led by the prophet Moses—escaped the bondage of their Egyptian slave

masters.

African Americans have employed this allegory throughout their history

in this country and at every stage of their struggle, from slavery to the Civil Rights

Movement, expressing it most poignantly through the old Negro spiritual, “Go

Down Moses”

Go down Moses

Way down in Egypt land

Tell old Pharaoh

To let my people go.

It is often said that slavery is the United States’ original sin.

However, it is clear from

the country’s founding ideals pitted against its subsequent history that the country’s

original sin is hypocrisy, and slavery only its most horrible symptom. Nearly two

hundred years separate the Vesey Plot and the storming of Capitol Hill. Hundreds

of revolts, massacres, riots, uprisings, and rebellions have punctuated the period in

between. Rebellion, as a form of political dissent, is as American as apple pie and

hypocrisy itself. The same theme has underlaid all such incidents: the war between

the freedom to be and the freedom to oppress. This battle, fought in the American

consciousness and on American streets, is the primary source of American hypoc-

risy. But there has been little tension in the methods used to effect these freedoms.

Another case from history illustrates this conflict: On October 16, 1859, aboli-

tionist John Brown, a white American patriot, approached the U.S. Military Arsenal

at Harpers Ferry, Virginia alongside a few other compatriots.

They sought to

commandeer the stores of weapons that were rumored to be in the arsenal.

Reports of the Denmark Vesey Slave Conspiracy, WM. & MARY Q. 287, 287 (2011); Evan

Andrews, 7 Famous Slave Revolts, H

ISTORY.COM (Jan. 15, 2013), https://www.history.com

/news/7-famous-slave-revolts [https://perma.cc/AA4S-JAHJ].

See generally PHILLIPPE R. GIRARD, THE SLAVES WHO DEFEATED NAPOLEON:

OUSSAINT LOUVERTURE AND THE HAITIAN WAR OF INDEPENDENCE, 1801–1804 (2011).

WHITE ET AL., supra note 1, at 178.

Id.

STEVEN CORNELIUS, MUSIC OF THE CIVIL WAR ERA 118 (2004).

Jeffrey Ostler, The Shameful Final Grievance of the Declaration of Independence,

TLANTIC (Feb. 8, 2020), https://www.theatlantic.com/ideas/archive/2020/02/americas-two

fold-original-sin/606163/ [https://perma.cc/6NK7-5DUM].

John Brown’s Harpers Ferry, HISTORY.COM (Mar. 4, 2010), https://www.history.com

/topics/harpers-ferry [https://perma.cc/PGG5-2ZDQ].

Id.

768 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

Brown already had a history of violent resistance. As pro-slavery forces at-

tempted to establish Kansas as a slave state, he and his five sons traveled there to

fight them.

In 1856, they attacked a group of cabins along a creek, killing five men

with broad swords.

Guerilla warfare continued throughout the summer.

In 1857, Brown began to amass resources to fund his war on slavery.

His goal

was to free enough of enslaved people to end slavery as an institution.

Brown

secured funds from a few prominent abolitionists and assembled a fighting force of

around two dozen, including three of his four sons who had survived the summer of

1856,

for the raid at Harpers Ferry.

Brown approached prominent African Ameri-

can abolitionists Harriet Tubman and Frederick Douglass to join the effort, but

Tubman was ill and Douglass believed—rightly—that the effort was doomed to fail.

On the eve of the raid, Brown’s army holed up in a farm near Harpers Ferry and

prepared their attack. At the appointed hour, they approached the armory and cut the

telegraph wires to prevent communication between the guards at the armory and the

outside world.

Brown and his forces easily took the arsenal.

They then took

several hostages.

Before the rebels could get away with the weapons, a passenger train happened

to approach the arsenal.

The baggage master detected that the armory was under

siege and ran to warn the passengers.

Brown’s men ordered him to halt but he did

not. The baggage master, Harvard Shepherd, a free Black man, was the first casualty

of the Harpers Ferry raid.

For some reason, Brown decided to let the train escape.

As a result, news of

the raid rapidly spread.

The next day, a company of U.S. Marines led by General

Robert E. Lee cornered Brown and his compatriots who were holed up in a hotel

near the arsenal.

Many of Brown’s men escaped; the next morning, Lee’s forces

Id.

PAUL FINKELMAN, SLAVERY IN THE COURTROOM: AN ANNOTATED BIBLIOGRAPHY OF

AMERICAN CASES 188 (1998); John Brown’s Harpers Ferry, supra note 8.

John Brown’s Harpers Ferry, supra note 8.

Id.

MARIAN TAYLOR, HARRIET TUBMAn: ANTISLAVERY ACTIVIST 68–69 (1997).

Id. The Harpers Ferry Raid, PBS, https://www.pbs.org/wgbh/americanexperience/fea

tures/brown-harpers-ferry-raid/ [https://perma.cc/RX9R-GYM6] (last visited Mar. 1, 2023).

Id.

FINKELMAN, supra note 11, at 190.

2023] LET MY PEOPLE GO,PART ONE 769

surrounded the room.

Lee then demanded that Brown surrender or die; Brown

chose death.

Lee’s troops promptly stormed the premises and unleashed a hail of

gunfire, wounding Brown and killing ten of his men.

Soon after Brown was captured, the Governor of Virginia, an Ohio congress-

man, a Virginia Senator, and several military officials questioned him. The con-

gressman, Clement L. Vallandigham, asked Brown who sent him.

“No man sent

me here,” replied Brown.

“It was my own prompting. And that of my maker, or

that of the devil, which ever you please to ascribe it to. I acknowledge no man in

human form.”

The senator, John Murray Mason, asked Brown, “What was your

object in coming?”

“We came to free the slaves, and only that.”

“How do you

justify your acts?” asked the Senator.

Brown answered:

I think, my friend you are guilty of a great wrong against God

and humanity—I say it without wishing to be offensive—and it

would be perfectly right in any one to interfere with you so far

as to free those you willfully and wickedly hold in bondage. I do

not say this insultingly. I think I did right and that others will do

right who interfere with you at any time and all times. I hold that

the golden rule, “Do unto others that you would that others

should do unto you,” applies to all who would help others to

gain their liberty.

This statement essentially articulated the political necessity defense. Brown justified

his otherwise criminal act on the basis that the social utility of his act outweighed

the social harm the criminal infraction itself caused.

That is, when the magnitude

of the political harm is greater than the harm caused to society by the criminal act,

the defendant—in committing the criminal act to abate the political harm—has

chosen the lesser of two evils.

The defense has four elements: (1) the harm averted

must be greater than the harm caused; (2) there must be no reasonable alternatives

to breaking the law; (3) the criminal act must have the potential to directly abate the

Id.

JON T. HOFFMAN, USMC: A COMPLETE HISTORY 84 (2002).

MARK S. WEINER, BLACK TRIALS:CITIZENSHIP FROM THE BEGINNINGS OF SLAVERY

TO THE

END OF CASTE 175 (2006).

Id.

Id. at 175–76.

Id. at 176.

Id.

770 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

harm (setting in motion a chain of events is insufficient); and (4) the harm to be

averted must be imminent. The rationale behind the defense is that an individual

ought not to be criminally punished for doing what, in the balance, is the right thing.

By referencing the magnitude of the social harm of slavery, Brown implied that

he had chosen the lesser of two evils: “[Y]ou are guilty of a great wrong against God

and humanity.”

In asserting that “it would be perfectly right in any one to interfere

with you so far as to free those you willfully and wickedly hold in bondage,”

Brown implied that all means are justifiable to abate the evil of slavery and thus all

alternatives are reasonable. Brown was asserting that the interdiction of slavery is

justifiable “by any means necessary,” in the words of 1960s Black rights advocate

Malcolm X.

Brown’s response also tracks the ultimate reasoning behind the

political necessity defense when he stated flatly, “I think I did right.”

Furthermore, Brown delivered a closing address to the court after the verdict

that essentially stated, in the nomenclature of the political necessity defense, that he

chose the lesser of two evils. His address also places into perspective the most

controversial element of the political necessity defense: the lack of reasonable

alternatives. He stated:

Had I interfered in the manner which I admit, and which I admit

has been fairly proved (for I admire the truthfulness and candor

of the greater portion of the witnesses who have testified in this

case), had I so interfered in behalf of the rich, the powerful, the

intelligent, the so-called great, or in behalf of any of their

friends, either father, mother, brother, sister, wife, or children,

or any of that class, and suffered and sacrificed what I have in

this interference, it would have been all right; and every man in

this court would have deemed it an act worthy of reward rather

than punishment.

Here, Brown explains that slavery is a greater evil than murder, conspiracy, and

treason. But for the blinding hypocrisy of the court and jury, he suggests, they would

have seen it that way too. Brown was also arguing that he had no reasonable legal

alternative, the second requirement, because of the racial hypocrisy that infected the

nation.

Id.

Videotape: Malcolm X: Founding Rally of Organization of Afro-American Unity

(OAAU) Speech Excerpt (Educational Video Group June 28, 1964).

WEINER, supra note 30, at 176.

STEPHEN B. OATES, TO PURGE THIS LAND WITH BLOOD: A BIOGRAPHY OF JOHN

BROWN 1351 (1970); JAMES REDPATH, THE PUBLIC LIFE OF CAPTAIN JOHN BROWN 240

(1860).

2023] LET MY PEOPLE GO,PART ONE 771

Brown was convicted of murder and treason and was sentenced to die.

He was

hanged on December 2, 1859.

His prophetic last words, which he wrote down,

captured most poignantly the gist of the reasonable alternative element of the

political necessity: “I John Brown am now quite certain that the crimes of this guilty

land; I had as I now think; vainly flattered myself that without very much blood-

shed; it might be done.”

Brown was saying no reasonable alternative existed to ending slavery because

the ill of slavery—in Brown’s opinion—was so deeply lodged in the body politic

and the wellspring of social sentiment informing it that the political system that

created slavery and kept it in place could not be reasonably expected to resolve it.

As well as predicting the Civil War, historians believe, Brown hastened it through

his raid on Harpers Ferry.

The political necessity defense requires a jury to determine the justifiability of

a defendant’s conduct without the guidance of duly promulgated laws, exceptions,

and defenses covering the defendant’s conduct under the circumstances at issue

because legislators have not addressed those circumstances. Ultimately, a jury

determines whether the political necessity defense applies to the facts of a case.

However, most cases of political necessity do not make it to the jury. Most, if

not all, modern courts would not allow a defendant to raise the defense of political

necessity in circumstances analogous to John Brown’s raid of Harper’s Ferry. For

one, Brown’s form of dissent was forcible, falling outside of the civil lawbreaking

the political necessity defense traditionally covers. Second, many courts, even in

civil disobedience cases, preclude the defense, opining that the political process is

always available as a reasonable alternative to breaking the law.

Third, federal

courts have held that a duly passed law or policy, like legalized slavery, works no

cognizable harm to society, irrespective of the actual harm incurred by society.

Fourth, abating the social wrong of slavery might require a third party, the govern-

ment or slaveholders as a class, to act to ultimately abate the harm, dissipating the

causal relationship between Brown’s criminal acts and the prohibition of slavery.

While courts might be justified in imposing these types of limitations on the

traditional political necessity defense, they would not be justified in imposing such

limitations on a political necessity defense rooted in the Second Amendment.

Indeed, as argued herein, the political necessity defense is a constitutional defense

protected by the Second Amendment to the U.S. Constitution.

FINKELMAN, supra note 11, at 191.

Id.

OATES, supra note 44, at 351.

John Brown’s Harpers Ferry, supra note 8.

United States v. Schoon, 971 F.2d 193, 199 (9th Cir. 1991), as amended (Aug. 4, 1992).

See infra text accompanying notes 174–76.

James L. Cavallaro, Jr., The Demise of the Political Necessity Defense: Indirect Civil

Disobedience and United States v. Schoon, 81 C

ALIF.L.REV. 351, 366 (1993).

772 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

The “Let My People Go” Article series has two parts. Part One discusses the

political necessity defense, the underpinnings of the political necessity defense, the

types of political necessity, and Black rebellion. Part Two discusses the constitutional

basis for the political necessity defense, including the historic and modern Second

Amendment right to rebel, the violent veto power of the Second Amendment and its

relationship to the right to rebel, and the connection between the violent veto power

and the political necessity defense. Part Two refines the political necessity defense

to meet Second Amendment standards, then applying the elements of the refined

political necessity defense to the storming of Capitol Hill on January 6, 2020.

Section II of Part One of this Article discusses the doctrine of political necessity

and the historical underpinnings of the necessity doctrine in general. It also dis-

cusses a series of social upheavals in American history—including the founding acts

of resistance leading to the American Revolution, major slave rebellions, and urban

riots—to provide context for the types of social wrongs the Second Amendment

political necessity defense contemplates. Section III concludes Part One of the

Article and introduces Part Two.

I. T

HE DOCTRINE OF POLITICAL NECESSITY

The necessity defense, often referred to as the choice-of-evils defense, applies

when an individual violates the law in order to avert a greater harm.

It “excludes

from punishment illegal conduct that is reasonably designed to advance the common

good.”

It is a justification defense as opposed to an excuse defense in that it applies

when the defendant’s conduct is not only legally non-culpable, but also socially

desirable.

In most jurisdictions, the necessity defense only applies if the defendant: (1)

reasonably believed, (2) his conduct “was necessary to avoid a harm, (3) more

serious than that sought to be prevented by the statute defining the offense.”

Furthermore, the defense is unavailable if there is a reasonable legal alternative to

committing the crime.

At common law, in order for the defense to apply, natural

forces must have created the threat of harm

and the crime could not be murder.

United States v. Bailey, 444 U.S. 394, 410 (1980); see also GLANVILLE WILLIAMS,

HE SANCTITY OF LIFE AND THE CRIMINAL LAW 198 (1957) (“[S]ome acts that would

otherwise be wrong are rendered rightful by a good purpose, or by the necessity of choosing

the lesser of two evils.”).

Shaun P. Martin, The Radical Necessity Defense, 73 UNIV. CIN.L.REV. 1527, 1532

(2005).

Edward B. Arnolds & Norman F. Garland, The Defense of Necessity in Criminal Law:

The Right to Choose the Lesser Evil, 65 N

W.J.CRIM.L.&CRIMINOLOGY 289, 296 (1975).

Bailey, 444 U.S. at 410; see also WILLIAMS, supra note 52, at 198.

Bailey, 444 U.S. at 410.

Id.

John A. Cohan, Homicide by Necessity, 10 CHAP.L.REV., 120, 120 (2006).

2023] LET MY PEOPLE GO,PART ONE 773

Some modern statutes—as well as the Model Penal Code—allow the necessity

defense in murder prosecutions.

In those jurisdictions, for instance, defendants can

claim necessity if they killed one person in order to save the lives of two or more

people.

Every jurisdiction in the United States has adopted the necessity defense

in one form or another.

Examples of the types of circumstances that have traditionally supported the

necessity defense include: a prisoner escaping a burning prison;

a person lost in the

woods stealing food from a cabin to survive;

a crew committing mutiny when their

ship is unseaworthy;

and individuals destroying property to prevent the spread of

fire.

According to Professor Wayne LaFave and Dean Austin Scott, Jr., the rationale

behind the necessity defense stems from the premise that “the law ought to promote

the achievement of higher values at the expense of lesser values, and sometimes the

greater good for society will be accomplished by violating the literal language of the

criminal law.”

In its basic form, the necessity defense is inherently political, in both its origins

and mechanics. A feature of English common law, the defense developed its American

features in the wake of the Revolutionary War.

As such, it was imbued with prevailing

fears at the time that “[f]ederal or state executives still might abuse their powers

under the new regime, and even the most conscientious government officials might

not share popular values or be aware of fundamental changes in public morality.”

The manner in which the defense operates today also has political implications.

The Ninth Circuit opined in United States v. Schoon that “in some sense, the

necessity defense allows us to act as individual legislatures, amending a particular

criminal provision or crafting a one-time exception to it, subject to court review,

when a real legislature would formally do the same under those circumstances.”

Professor Shaun P. Martin describes the doctrine’s operational features in some-

what more radical terms, observing that the “necessity defense, notwithstanding its

Id. at 133.

Id. at 133–34.

Martin, supra note 53, at 1535.

See, e.g., Baender v. Barnett, 255 U.S. 224, 226 (1921).

See Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV.

1193, 1205 (1985).

See United States v. Ashton, 24 F. Cas. 873, 874 (Mass. Cir. 1834).

See, e.g., Surocco v. Geary, 3 Cal. 69, 74 (1853).

WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW § 5.4(a),

at 442 (2d ed. 1986).

Martin, supra note 53, at 1542.

Id.

United States v. Schoon, 971 F.2d 193, 196–97 (9th Cir. 1991), as amended (Aug. 4,

1992).

774 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

seemingly innocuous nature, articulates a profoundly revolutionary principle, both

as a jurisprudential doctrine and as a vehicle for social change.”

According to

Martin, this is because the doctrine “conflicts with prevailing principles of the ‘rule

of law’”

by authorizing “individualized legal disobedience as a means to advance

the greater collective social good.”

Martin notes in addition that “[t]he necessity doctrine anticipates and expects

the abuse of democratic governmental power and a divergence of belief between the

governed and their representatives.”

According to Martin, proof of this assumption

lies in the defense’s very existence. He argues that the necessity defense “would be

entirely unnecessary if the judicial system was expected to operate as it was

intended.”

He cites abuse of prosecutorial discretion as one example of the type of

governmental abuse of power that the necessity defense was meant to anticipate.

Prosecutors act as the gatekeepers of the criminal justice system.

They have

an enormous amount of discretion in terms of selecting the individuals and the types

of cases to prosecute.

A prosecutor’s political and social beliefs inevitably influ-

ence this discretion.

According to Martin, prosecutors will not typically prosecute

necessity cases if they have a racial or political component.

Conversely, prosecu-

tors are more likely to prosecute those cases possessing racial or political undertones

if those undertones impugn their beliefs or aggravate their prejudices.

The necessity defense theoretically offers a way to check the prosecutor’s bias.

However, as Martin notes, “[n]ecessity . . . serves its intended function only if . . .

a jury may insist that a given illegal act increases net social utility even though the

executive has concluded otherwise.”

In other words, the defense only provides a

check on a prosecutorial abuse of power if the defendant is allowed to present the

defense to the jury. Thus, the fact that judges typically refuse to allow defendants

to argue necessity in cases that have political implications presents a problem.

However, if the defense is cognizable as a constitutional right—as argued herein—

judges would, in many cases, be forced to allow defendants to present the defense.

Martin, supra note 53, at 1529.

Id. at 1530.

Id.

Id. at 1544–45.

Id. at 1539.

Id.

Id. at 1564–65.

See id. at 1564–65, 1565 n.161.

See generally id.

Id. at 1540.

JOSHUA DRESSLER,UNDERSTANDING CRIMINAL LAW 271–77 (8th ed. 2018).

2023] LET MY PEOPLE GO,PART ONE 775

II. T

HE POLITICAL NECESSITY DEFENSE

The political necessity doctrine applies the basic tenets of the necessity doctrine

to situations where an individual breaks the law to address a political concern.

Proponents argue that the defense is justified because it “empowers the individ-

ual primarily by presenting a forum in which stifled minority or unheeded majority

viewpoints receive a public hearing and a governmental response.”

Similarly, the

elements of the defense aid defendants in publicizing their political motivations. As

Steven M. Bauer and Peter J. Eckerstrom writes:

[I]n proving the imminence of the harm, [defendants] can dem-

onstrate the urgency of the social problem[;] in showing the rela-

tive severity of the harms, they can show the seriousness of the

social evil they seek to avert[;] in establishing the lack of reason-

able alternatives, they can assault the unresponsiveness of those

in power in dealing with the problem and prod them to action[;]

and in presenting evidence of a causal relationship, they can

argue the importance of individual action in reforming society.

Proponents also argue that allowing defendants to present the defense “conveys the

symbolic message that our society highly values political input and gives special

attention to apparent systemic failures in our form of democratic government.”

The

defense also empowers juries to serve as a check on law enforcement as it “con-

forms with a longstanding American willingness to use citizens as a buffer between

the defendant and the harsh and sometimes arbitrary enforcement of the law.”

Opponents of the political necessity defense argue that criminal conviction is the

price protestors must be willing to pay for standing up for their beliefs and that the

law should not be made to support the political beliefs of those who act outside of

the political process.

Another concern opponents voice is that the defense “violates

the principle of majority rule because the jury is asked to decide whether actors were

justified in seeking to avert an unwise policy.”

In other words, the defense trans-

forms the jury into “a quasi-legislative or executive body that can in effect veto duly

promulgated policies” without the safeguards of accountability to the electorate,

Id. at 266–77.

Steven M. Bauer & Peter J. Eckerstrom, The State Made Me Do It: The Applicability

of the Necessity Defense to Civil Disobedience, 39 S

TAN.L.REV. 1173, 1184 (1987).

Id. at 1176.

Id. at 1185.

Id. at 1186.

DRESSLER, supra note 82, at 276–77.

John A. Cohan, Civil Disobedience and the Necessity Defense, 6 PIERCE L. REV. 111,

122 (2007).

776 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

including elections, and the need to justify decision making that characterizes the

legislative and executive branches.

Opponents also argue that jurors are without the political sophistication to

comprehend and apply the complicated policy judgments required to evaluate a

defendant’s claim to the defense.

They also argue that “factors that have nothing

to do with the policy issues often enter into a jury’s consideration,” such as “[s]ub-

jective notions about the parties, actions by the judge, and the lawyers’ ability to

inflame the jury.”

The political necessity defense, similar to the basic necessity defense, requires

four elements of proof: (1) that the defendant was faced with a choice between evils

and chose the lesser evil; (2) that he or she acted to prevent imminent harm; (3) that

the defendant reasonably anticipated a causal relation between the conduct and the

harm to be avoided; and (4) that there were no other legal alternatives to violating

the law.

The first requirement, the balance of harms element, does not usually present

an insurmountable hurdle for defendants who engage in non-violent forms of pro-

test.

For instance, a criminal trespass on government property in protest of nuclear

proliferation obviously works less harm on society than the threat of nuclear war.

Similarly, the imminence requirement is usually not prohibitively difficult to estab-

lish.

In the context of nuclear proliferation, for example, many courts would view

the threat of nuclear war to be an imminent harm.

The last two prongs, requirement of a causal link and a lack of legal alternatives,

have produced the most trouble for defendants. Courts customarily question the

existence of a causal link between the defendant’s political activity and the abate-

ment of the object of the protest.

In the context of nuclear proliferation, for

instance, a court would probably hold that trespassing on government property is not

reasonably likely to end the manufacture and proliferation of nuclear weapons.

The causal link requirement assumes that the only utility of the political act is

to bring about the immediate end to the harm the act is designed to avert. It overlooks

the potential aggregate effect of other acts of political necessity by other unrelated

defendants in redress of the same issue, as well as the potential effect of the unlaw-

ful acts combined with the political process, as is the case when the criminal act

forces the government to act. Moreover, as discussed fully in Section III, the re-

quirement of a direct causal link is out of step with the history and rationale behind

the Second Amendment, which supplies the political necessity defense with an

additional form.

Id.

Bauer & Eckerstrom, supra note 84, at 1198.

Cavallaro, supra note 51, at 356.

Id. at 357.

Id.

Id. at 358.

2023] LET MY PEOPLE GO,PART ONE 777

Regarding the legal alternatives element, courts typically hold that the political

process is always a legal alternative to criminal action.

These findings reflect con-

cerns that the political necessity defense subverts the democratic process. However,

while such concerns might hold sway under a traditional approach to the political

necessity defense, the same concerns are subordinated in merit when imported into the

context of the Second Amendment. As discussed in detail in Section III, the concept

at the very heart of the Second Amendment is subversion of the political process.

Again, although the casual requirement and the legal alternatives factors present

a substantial bar to the successful use of the traditional political necessity defense,

processing the defense through the Second Amendment demands a reshuffling of

the hierarchy of rationales underlying the traditional version of the defense and the

ideas giving birth to the Second Amendment. Even still, the applicability of the

constitution-based political necessity defense depends not just on the analysis of the

traditional elements of the defense, but also on the types of circumstances the

Second Amendment was designed to anticipate. These circumstances track roughly

the type or category of political necessity.

A. Types of Political Necessity

Many types of unlawful activities can be categorized under the banner of

political necessity. They range from acts as violent as homicide, rioting, and rebel-

lion to acts as peaceful as disobeying a municipal ordinance by kneeling to pray in

the middle of a public thoroughfare.

1. Civil Disobedience

Civil disobedience is the most common type of political necessity or, stated

differently, the most common category of criminal acts committed to protest a

government-inflicted social wrong. Sanford J. Rosen defines civil disobedience as

“open and purposeful law breaking that is politically motivated, and normally is

accompanied by the actors’ sense of moral indignation and duty.”

John Rawls

explains that civil disobedience is “a public, nonviolent, conscientious yet political

act contrary to law usually done with the aim of bringing about a change in the law

or policies of the government.”

The expression “civil disobedience” is derived from Henry David Thoreau’s essay

“Resistance to Civil Government,” published in 1849 and later renamed “Essay on

Civil Disobedience.”

100

In the essay, Thoreau assailed the institution of slavery and

Id. at 359.

Sanford J. Rosen, Civil Disobedience and Other Such Techniques: Law Making

Through Law Breaking, 37 G

EO.WASH.L.REV. 435, 442 (1969).

JOHN RAWLS,ATHEORY OF JUSTICE 364 (Harvard Univ. Press 1971).

100

HENRY DAVID THOREAU, RESISTANCE TO CIVIL GOVERNMENT (1849), as reprinted in

778 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

questioned the feasibility of changing the government through the political process.

101

He took the position that citizens should simply refuse to recognize the authority of

an unjust government by disobeying its laws.

102

Thoreau himself refused to pay

taxes in protest of slavery and was temporarily jailed as a result.

103

Civil disobedience is quintessentially American. As Justice Bright documents

in United States v. Kabat, “[c]ivil disobedience has been prevalent throughout this

nation’s history extending from the Boston Tea Party and the signing of the Declara-

tion of Independence to the freeing of the slaves by operation of the Underground

Railroad in the mid-1880s.”

104

Civil disobedience was also an essential part of the

“labor, women’s rights, civil rights, antiwar, and antinuclear movements”

105

of the

twentieth century.

In a real sense, the country itself is a product of civil disobedience. Civil

disobedience was at the heart of the events which fueled the American Revolution.

The Boston Tea Party and the Stamp Act Riots are prominent examples.

On December 16, 1773, under the cover of night, several men disguised as

Mohawks crept aboard three ships docked in the Boston harbor.

106

The three vessels

were packed with tons of tea being shipped to the colonies by the Dutch East India

Company.

107

The marauders dumped the entirety of the shipments into Boston

Harbor, an amount that totaled 342 chests of tea.

108

The bandits were American colonists.

109

The dumping of the tea was the opening

salvo in an organized campaign to undermine British colonial rule.

110

This act of

civil disobedience came to be known as the Boston Tea Party.

111

Two years prior to the Boson Tea Party, Parliament passed the Tea Act which

increased the retail sales tax of tea in the colonies.

112

The Act also awarded the

Dutch East India Company a monopoly over the shipment—and by extension the

sale—of tea in the colonies.

113

Colonists objected to the Tea Act primarily on the

THE WRITINGS OF HENRY D. THOREAU:REFORM PAPERS 63–76, 86–90 (Wendell Glick ed.,

1973), https://wwnorton.com/college/history/archive/resources/documents/ch13_04.htm [https://

perma.cc/RMP2-HZAK].

101

Id.

102

Id.

103

Id.

104

United States v. Kabat, 797 F.2d 580, 601 (8th Cir. 1986) (Bright, J., dissenting).

105

Bauer & Eckerstrom, supra note 84, at 1176.

106

PETER D. G. THOMAS,TEA PARTY TO INDEPENDENCE:THE THIRD PHASE OF THE

AMERICAN REVOLUTION 1773–1776, at 20–21 (Clarendon Press 1991).

107

Id.

108

Id.

109

Id.

110

Id. at 21, 24–25.

111

Id. at 24.

112

ELLA WAGNER,GALE RESEARCHER GUIDE FOR:THE TEA ACT AND ITS AFTERMATH

2 (2018).

113

Id.

2023] LET MY PEOPLE GO,PART ONE 779

ground that it—as well as all other acts passed by Parliament—constituted “taxation

without representation,” a violation of their rights as English citizens.

114

That is, the

colonists were afforded no independent representatives in British Parliament who

would represent their distinct issues as colonists.

115

They claimed that they had no

corresponding duty to abide by English law, particularly with regard to the payment

of taxes.

116

The Tea Tax was particularly troubling because the British government

controlled the revenue it generated and used some of it to pay public officials in the

colonies, effectively bringing the colonies under British control.

117

Importantly, the Tea Act itself worked no tangible economic harm on the colo-

nists.

118

Although it increased the tax on the retail sale of tea, colonial consumers

ultimately would pay less for it because of the Tea Act.

119

The Act lowered the duty

amount the Dutch East India Company had to pay to import tea into Britain, a saving

that the company passed on in part to colonial consumers.

120

Additionally, the Act

enabled the Dutch East India Company to ship tea directly to the colonies, cutting

out charges British merchants added when the company was required to sell the

product wholesale in Britain.

121

Thus the “taxation without representation” involved in the Tea Act was a matter

of principle, not economics.

122

Enough colonists considered this and other acts of the

British Crown egregious enough to engage in a violent revolution that would claim

tens of thousands of lives.

123

Founding father Samuel Adams opined at the time that the Boston Tea Party was

a righteous and principled protest born of necessity and not, as some claimed, the

result of the reactive rage of a lawless mob.

124

He described the drowning of the tea,

which was a criminal act under English law, as the last option available to the people

to preserve their constitutional rights.

125

In the parlance of the political necessity

defense, Adams claimed that the colonials had no reasonable legal alternatives.

126

114

Id.

115

William Jennings Bryan, The World’s Famous Orations: William Pitt on the Right to

Tax America (1766), B

ARTLEBY, https://www.bartleby.com/268/3/23.html [https://perma.cc

/P3YZ-Z5XV] (last visited Mar. 1, 2023).

116

Id.

117

PETER D. G. THOMAS,THE TOWNSHEND DUTIES CRISIS 252–54 (Clarendon Press 1987).

118

PAUL S. BOYER ET AL., THE ENDURING VISION:AHISTORY OF THE AMERICAN PEOPLE

146 (8th ed. 2014).

119

Id.

120

Id.

121

Id.

122

CHARLES M. DOLLAR ET AL., AMERICA,CHANGING TIMES 108 (2d ed. 1982).

123

Id.

124

JOHN K.ALEXANDER,SAMUEL ADAMS:AMERICA’S REVOLUTIONARY 126, 129 (2002).

125

Id.

126

Id.

780 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

2. Twentieth-Century Applications of the Doctrine

The Boston Tea Party was but one act of civil disobedience in a long line of acts

that would come to characterize the American architecture of social change.

127

In the

1950s and 60s, civil disobedience played a inextricable role in abolishing legal

segregation—a social, economic, and political artifice designed to perpetuate and

buttress the contrivance of white supremacy.

128

Civil rights activists employed direct

action, a brand of civil disobedience, to eliminate laws that relegated African-

Americans to the backs of busses, the balconies of theaters, and the side windows

of restaurants in the South that served whites.

129

Similarly, in the 1970s, anti-war

activists violated selective service laws in protest of the Vietnam War.

130

Their efforts

contributed to the nation’s military withdrawal from Vietnam.

131

Modern courts distinguish between two types of civil disobedience, indirect and

direct, for the purposes of determining the applicability of the political necessity

defense.

132

Indirect civil disobedience “challenges the legitimacy of a given act or

policy through the violation of a law that is not itself challenged.”

133

Indirect civil

disobedience typically involves the violation of trespass law.

134

Examples include

the protestors who unlawfully occupied the South African consulate to protest

apartheid and the civil rights activists who marched without a license to protest

segregation. Direct civil disobedience, in contrast, “challenges a particular policy

or law by contravening that same policy or law.”

135

Examples of direct civil obedi-

ence would be abolitionists disobeying fugitive slave laws by refusing to turn in any

enslaved people who escaped, pro-legalization activists who smoke marijuana in

public as part of a protest, and the famous act of Rosa Parks when asked to give up

her seat on a public bus.

136

Although the federal government has been hostile to defenses based on civil

disobedience—particularly regarding indirect civil disobedience—several state courts

have allowed the necessity defense in many instances involving protests.

137

William

P. Quigley cites several more modern successful uses of the political necessity

127

Cavallaro, supra note 51, at 384.

128

Id.

129

Id.

130

Id.

131

United States v. Kabat, 797 F.2d 580, 601 (8th Cir. 1986) (Bright, J., dissenting).

132

Lance N. Long, The Climate Necessity Defense: Proof and Judicial Error in Climate

Protest Cases, 38 S

TAN.ENV’T L.J. 57, 104 (2018).

133

Cavallaro, supra note 51, at 352.

134

Cohan, supra note 89, at 114.

135

Cavallaro, supra note 51, at 352.

136

Cohan, supra note 89, at 114.

137

Cavallaro, supra note 51, at 351.

2023] LET MY PEOPLE GO,PART ONE 781

defense in state courts, including Washington v. Bass, Massachusetts v. Carter,

Vermont v. Keller, Chicago v. Streeter, and California v. Halem.

138

In Washington v. Bass, several students attending Evergreen State College sat

in the Washington State Capitol to protest apartheid in South Africa and to support

an anti-apartheid disinvestment bill.

139

The students were asked to leave and several

of them refused. These students were arrested and charged with trespass and disor-

derly conduct.

140

At their trial, the trial judge allowed the defendants to admit statistical and

expert evidence on the defense of necessity. All were acquitted.

141

In Massachusetts v. Carter, student activists disrupted recruitment activities at

the University of Massachusetts–Amherst by the Central Intelligence Agency (CIA)

in protest of the agency’s use of illegal drug money to make off-the-book purchases

of weapons to supply anti-communist rebel forces in Nicaragua in the Iran-Contra

scandal.

142

The protesters, among them Amy Carter, the daughter of former President

Jimmy Carter, were arrested and charged with trespass and disorderly conduct.

143

trial, the defendants presented a defense based on political necessity and related

doctrines.

144

They argued that their crimes created far less social harm than the crimes

the CIA was committing in Central America.

145

In support of their argument, they

presented the testimony of an erstwhile contra leader as well as former CIA offi-

cials.

146

The judge instructed the jurors that they could acquit if they found that the

defendants believed their protest would help to prevent a clear and immediate threat

of public harm.

147

The defendants were acquitted in three hours.

148

In Vermont v. Keller, demonstrators staged a sit-in at the Vermont office of U.S.

Senator Robert Stafford, in an effort to secure a public meeting on American policy

138

William P. Quigley, The Necessity Defense in Civil Disobedience Cases: Bring in the

Jury, 38 N

EW ENG.L.REV. 1, 26–37 (2003); see also Human Rights and Peace Law Docket:

1945–1993 (Ann Fagan Ginger & Jim Ginger eds., 5th ed. 1945–1993) (case summary of

Chicago v. Streeter) (defendants arrested for trespass at South African consulate; necessity

defense permitted; jury acquitted defendants); Human Rights and Peace Law Docket:

1945–1993, PL-219/25.10 (Ann Fagan Ginger & Jim Ginger eds., 5th ed. 1945–1993) (case

summary of Washington v. Bass) (defendants staged sit-in at state capital in support of South

African divestment bill; arrested after refused to disperse; necessity defense).

139

Id.

140

Id.

141

Id.

142

Human Rights and Peace Law Docket: 1945–1993, PL-185/25.9 (Ann Fagan Ginger

& Jim Ginger eds., 5th ed. 1945–1993) (case summary of Massachusetts v. Carter).

143

Id.

144

Id.

145

Id.

146

Id.

147

Matthew L. Wald, Amy Carter Acquitted Over Protest, N.Y. TIMES (Apr. 16, 1987),

https://www.nytimes.com/1987/04/16/us/amy-carter-is-acquitted-over-protest.html [https://

perma.cc/HDB7-TPJ5].

148

Id.

782 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

in Central America.

149

The demonstrators were arrested and charged with trespass-

related offenses.

150

At trial, the court allowed the defendants to call expert witnesses

with expertise in human rights to testify about the human rights violations in El

Salvador and Nicaragua.

151

The court also allowed evidence on reasonable likeli-

hood of success element of the necessity defense.

152

For instance, experts could

testify about the efficacy of protest in impacting American foreign policy.

153

The

court also allowed testimony from the defendants on the “lack of legal alternatives”

element of the political necessity defense.

154

To this end, the defendants testified that

they had attempted “every reasonable manner to communicate” with the Senator.

155

The jury acquitted.

156

In Chicago v. Streeter, a jury acquitted demonstrators of trespass. The demon-

strators had refused to leave the office of the South African consul in protest of

apartheid. The court allowed expert testimony helping to establish the defense of

necessity and related defenses.

In 1993, Chicago AIDS activists mounted a successful necessity defense after

they were charged with illegally supplying clean needles.

157

Similarly, AIDS activists

in California were acquitted after successfully arguing that committing the crime of

dispensing clean needles without a prescription was necessary to protect people

from the spread of the AIDS virus.

158

Federal courts draw a distinction between cases of indirect civil obedience as

exemplified by Bass, Carter, Keller, Streeter, Halem, and the direct civil disobedi-

ence typified by the clean needle cases.

3. The Schoon Dilemma

The primary obstacle to raising a successful political necessity defense is a court’s

refusal to allow the defendant to present the defense to the jury. This, of course,

means that the defendant cannot introduce evidence highlighting the nature and

149

See, e.g., HUMAN RIGHTS AND PEACE LAW DOCKET: 1945–1993, at PL-39/25.2–25.3

(case summary of Vermont v. Keller (Winooski 44)), http://sunsite.berkeley.edu/meiklejohn/meik

-peacelaw/meik-peacelaw-16.html [https://perma.cc/RTQ7-8DTJ] (last visited Mar. 1, 2023).

150

Id.

151

Id.

152

See Quigley, supra note 138, at 30 (“The defendants further testified they had attempted

‘every reasonable manner to communicate’ with the Senator.”) (implying that the defendants

asserted a likelihood of success in their actions).

153

Id.

154

Laura J. Schulkind, Applying the Necessity Defense to Civil Disobedience Cases, 64

N.Y.U. L. R

EV. 79, 93 (1989).

155

Quigley, supra note 138, at 30.

156

Id.

157

Id. at 35.

158

Id.

2023] LET MY PEOPLE GO,PART ONE 783

magnitude of the social harm. This not only nearly guarantees the defendant’s

conviction, but also robs defendant-dissidents of one of the most valuable tools they

have in changing the target law or policies, drawing attention to and winning public

support for the championed cause.

159

Furthermore, precluding the political necessity

defense discourages others from engaging in socially desirable behavior.

160

The

barriers to the successful mounting of the political necessity defense are typified by

United States v. Schoon, the leading case on the matter.

In Schoon, demonstrators were tried for invading the Internal Revenue Service

(IRS) office at the federal building in Tucson, Arizona, in protest of U.S. involvement

in El Salvador.

161

They had overrun the office, splashing mock blood throughout.

162

The U.S. government was supporting an El Salvadoran government that de-

ployed “death squads” against dissenters.

163

These death squads killed several El

Salvadorans.

164

The protest at the Tucson federal building followed the massacre of

six Jesuit priests and a teenage girl.

165

After a standoff with law enforcement, the protestors were arrested for obstruct-

ing government operations and failure to obey.

166

At trial, the defendants attempted

to argue that their actions were necessary to end the massacres in El Salvador.

167

The

trial court, however, refused to allow the defendants to present evidence supporting

their necessity argument.

168

The court held that “(1) the requisite immediacy was

lacking; (2) the actions taken would not abate the evil; and (3) other legal alterna-

tives existed.”

169

The defendants were convicted and appealed to the Ninth Circuit.

170

The Ninth Circuit, in affirming the trial court’s decision, created a per se rule

prohibiting the use of the necessity defense in all indirect civil disobedience cases.

171

The court declared that three of the four elements needed to mount a successful

political necessity defense were unalterably lacking in indirect civil disobedience

cases.

172

Those elements are (1) balance of harms, (2) lack of reasonable alternatives,

and (3) direct causal relationship—the imminence requirement being the sole ele-

ment not deflowered by the Court.

173

159

Cavallaro, supra note 51, at 351–85.

160

Id.

161

971 F.2d 193, 195 (9th Cir. 1991), as amended (Aug. 4, 1992).

162

Id.

163

Cavallaro, supra note 51, at 362.

164

Id.

165

Id.

166

United States v. Schoon, 971 F.2d 193, 195 (9th Cir. 1991).

167

Id.

168

Id.

169

Id.

170

Id.

171

Id. at 199–200.

172

Id. at 197.

173

Id. at 197–98.

784 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

The Ninth Circuit’s analysis of the four elements is critical because Schoon is

the paradigmatic case on the political necessity defense and, as such, serves as the

perfect prototype against which to analyze the effect of the Second Amendment on

the traditional political necessity defense.

The first element the Court evaluated was the balance of harms element. The

Court framed the harm the defendants sought to allay in invading the federal building

in purely abstract terms. While the actual harm the defendants were trying to prevent

was the gratuitous loss of life encouraged by U.S. policy, the Court framed the

relevant harm as the government policy itself. The court held that “the mere existence

of a constitutional law or governmental policy cannot constitute a legally cognizable

harm.”

174

The court reasoned via presumption that “these protestors violate a law,

not because it is unconstitutional” nor because “the procedure by which the policy

was adopted was in any way improper” nor because they are “prevented systemati-

cally from participating in the democratic processes through which the policy was

chosen,” “but because doing so calls public attention to their objectives.”

175

The

court concluded that since lawfully enacted government policies cause no harm, the

social harm caused by the criminal infraction automatically carries the day.

176

other words, the court, in balancing the harm the defendants sought to allay (U.S.

policy in El Salvador) against the harm caused by the criminal act (threat to rule of

law, disorder caused by the trespass, etc.) concluded that there existed only one

harm, the harm caused by the criminal offense, and that one harm, no matter how

trivial, wins the balance.

In assessing the legal alternatives prong of the necessity defense in indirect civil

disobedience cases, the court held “because congressional action can always mitigate

this ‘harm,’ [i.e., the one protestors sought to address] lawful political activity to spur

such action will always be a legal alternative.”

177

In discussing the reasonableness

of the alternative, the court stated, “[w]e assumed there that the ‘possibility’ that Con-

gress will change its mind is sufficient in the context of the democratic process to

make lawful political action a reasonable alternative to indirect civil disobedience.”

178

In discussing the causal element of the necessity defense, which requires a

causal relationship between the criminal conduct and the harm to be allayed, the

Schoon court held that acts of indirect civil disobedience are not likely to change

government policy as an immediate result of the criminal acts. The court explained

that this is so because “it takes another volitional actor not controlled by the protes-

tor to take a further step; Congress must change its mind.”

179

The court reasoned that

174

Id. at 197.

175

Id. at 197–98.

176

Id. at 198.

177

Id.

178

Id. at 199.

179

Id. at 198.

2023] LET MY PEOPLE GO,PART ONE 785

“[i]f the criminal act cannot abate the threatened harm, society receives no benefit

from the criminal conduct.”

180

The political history of the United States does not support the Ninth Circuit’s

findings regarding each of the disqualifying elements, balance of harm, reasonable

alternatives, and direct causal relationship, as the above instances of civil disobedi-

ence show. The country’s history of not-so-civil disobedience also provides several

instances undermining many of the Schoon court’s findings.

B. Riots, Rebellions, and Other Forcible Acts of Political Necessity

In addition to civil disobedience, protestors sometimes commit more aggressive

acts of protest, such as assault, rioting, looting, arson, and even murder to protest or

escape the effect of an oppressive law or policy.

181

Typically these acts are taken in

response to greater social evils than those associated with civil disobedience. Such

acts also come with graver criminal charges and potential penalties. The charges

civil disobedient defendants face are relatively minor misdemeanor offenses, like

trespass and disturbing the peace, while the charges forcible resistors usually face

are felonious and come with substantially higher penalties, including death.

The commission of forcible crimes out of political necessity undoubtedly create

heavy amounts of social harm. The purely economic harm caused by rioting and the

concomitant destruction of property in and of itself is high, not to mention the

massive human costs to society caused by assault and homicide. As a result, only the

most egregious brands of social wrongs should be deemed to necessitate the use of

violent means of protest.

The more digestible forms of forcible dissent acceptable to the modern Ameri-

can imagination, outside of the American Revolution, commence with the riots that

preceded it, including the Stamp Act riots of 1765 and the riots leading to the

Boston Massacre of 1768.

The former were among the earliest examples of violence dispatched in protest

of government action. In 1765, British Parliament passed a law requiring American

printers to use only paper produced in Britain for documents such as legal papers

and newspapers.

182

Acceptable documents were identifiable by a revenue stamp.

183

180

Id.

181

Cohan, supra note 89, at 114–15.

182

Donna Jane Spindel, The Stamp Act Riots, 59 GA.HIST. Q. 111, 111 (1975).

183

Smithsonian Institution, Stamp from the Stamp Act of 1765, https://collections.si.edu

/search/detail/edanmdm:npm_0.022044.2?q=guId%3A%22ark%3A%2F65665%2Fhm83345

b23b31424209b18cea01981b98ba%22&record=1&hlterm=guId%3A%26quot%3Bark%3A

%2F65665%2Fhm83345b23b31424209b18cea01981b98ba%26quot%3B [https://perma.cc

/6BXR-6LW6] (last visited Mar. 1, 2023).

786 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

The paper carried a tax to defray the cost of maintaining British troops in the

colonies after the French and Indian War.

184

Britain claimed that the troops were

necessary to protect the colonists from a French invasion.

185

However, the colonists

did not want the troops in the colonies and never requested them. They believed the

tax to be a ruse set up to provide patronage to British officers and career soldiers at

their expense.

186

The colonists were outraged by the Stamp Act.

187

They considered it a violation

of their rights as Englishmen to be free from “taxation without representation.”

188

However, as certain members of Parliament pointed out, only landowners, not all

Englishmen, had a right to direct representation in Parliament, and the colonists

owned no land in England.

189

Nonlandowners were deemed to be virtually repre-

sented by their landowning counterparts.

190

In this way, the colonists were arguably

no different from Englishmen residing in Britain who did not own land.

191

The colonists, however, saw their situation as distinguishable. A series of pro-

tests against the Stamp Act, escalating in intensity, broke out in several American

colonies, most notably in Boston.

192

There, protestors hung the stamp distributor,

Andrew Oliver, in effigy from a giant tree which was later dubbed the “Liberty

Tree.”

193

Then they paraded the effigy down the street to Oliver’s home.

194

They

then burned down Oliver’s stable house and set his coach and chaise ablaze.

195

When

Lieutenant Governor Thomas Hutchinson and Sheriff Greenleaf tried to stop the

protestors, they were mercilessly stoned.

196

The protestors went on to loot Oliver’s

184

DAVID BRION DAVIS &STEVEN MINTZ,THE BOISTEROUS SEA OF LIBERTY:ADOCU-

MENTARY HISTORY OF AMERICA FROM DISCOVERY THROUGH THE CIVIL WAR 144 (1999).

185

Victoria, Parliamentary Debates, House of Representatives, 7 September 1869, 2667

(Austl.).

186

Founders Online, Examination Before the Committee of the Whole of the House of

Commons, 13 February 1766, N

AT’L ARCHIVES, https://founders.archives.gov/documents

/Franklin/01-13-02-0035#BNFN-01-13-02-0035-fn-0001 [https://perma.cc/JTS3-SHZH] (last

visited Mar. 1, 2023).

187

JONATHAN MERCANTINI,THE STAMP ACT OF 1765: A HISTORY IN DOCUMENTS 149

(2017).

188

Id. at 12, 13.

189

J.P. GREENE,THE CONSTITUTIONAL ORIGINS OF THE AMERICAN REVOLUTION 71

(2010).

190

Id.

191

Id.; see generally EDWARD G. GRAY,COLONIAL AMERICA:AHISTORY IN DOCUMENTS

(2003).

192

DENNIS B. FRADIN,THE STAMP ACT OF 1765, at 25 (2010).

193

MURRAY NEWTON ROTHBARD,CONCEIVED IN LIBERTY 869 (2011).

194

Id.

195

GARY B. NASH,THE UNKNOWN AMERICAN REVOLUTION:THE UNRULY BIRTH OF

DEMOCRACY AND THE STRUGGLE TO CREATE AMERICA 47 (2006).

196

Id.

2023] LET MY PEOPLE GO,PART ONE 787

home. Items they did not steal, they destroyed.

197

Protestors eventually paraded

Oliver himself through the streets of Boston. The grand finale was strong-arming

Oliver under penalty of violence into publicly resigning while under the very tree

where he was hung in effigy.

198

However, resignation “didn’t douse the violent

protests in Boston.” On August 26, another mob attacked the home of Lieutenant

Governor Hutchinson, who was Oliver’s brother-in-law. The rioters stripped the

mansion, one of the finest in Boston, of its doors, furniture, paintings, silverware,

and even the slate from its roof.”

199

A wave of violent protest spread throughout the colonies as word spread of what

had happened in Boston.

200

They forced government officials to resign under the

threat of violence, burned homes to the ground, looted wine cellars, and forcibly

evicted the officials’ families from their homes.

201

As a result of the riots, the British

Parliament repealed the Stamp Act.

202

The Stamp Act Riots also played an essential

role in inspiring the Declaration of Independence and facilitating the organized re-

sistance that culminated in the American Revolution.

203

The most important violent protest in U.S. history is the riot that ended in the

Boston Massacre and fast-tracked the American Revolution. At dusk on March 5,

1770, American patriot Crispus Attucks, a Black man, and a crowd of other Boston

colonists confronted a British soldier who had assailed a boy after the boy demanded

pay from the soldier for a haircut.

204

The soldier was a part of a unit that had been

deployed to Boston to manage colonial unrest following the passage of the Stamp

Act and the Townsend Acts,

205

which resulted in several attacks on local officials.

206

He told the boy that he should be more respectful to officers, and then, after a minor

physical exchange, the soldier struck the boy on the side of the head with his

musket, causing the boy to writhe in pain.

207

Over fifty Bostonians, led by Attucks,

197

Id.

198

Id. at 53.

199

Christopher Klein, The Stamp Act Riots, HISTORY.COM (Aug. 14, 2015) (last updated

Aug. 31, 2018), https://www.history.com/news/the-stamp-act-riots-250-years-ago [https://

perma.cc/L687-KZZB].

200

S.G. WOOD,THE AMERICAN REVOLUTION:AHISTORY 29–30 (2002); DOUGLASS

ADAIR &JOHN ASCHULTZ,PETER OLIVER’S ORIGIN AND PROGRESS OF THE AMERICAN

REBELLION:ATORY VIEW 52 (1961).

201

Id.

202

Klein, The Stamp Act Riots, supra note 199.

203

History.com Editors, Stamp Act, HISTORY.COM (July 31, 2019), https://www.history

.com/topics/american-revolution/stamp-act [https://perma.cc/A78M-CLKH].

204

JESSIE CARNEY SMITH,NOTABLE BLACK AMERICAN MEN 41 (1991).

205

Jacob Devasagayam, The Bloody Massacre, BALLSTONAPUSH (2012), http://ballston

apush.pbworks.com/w/page/46095870/The%20Bloody%20Massacre [https://perma.cc

/GKK4-UZJN].

206

See SMITH, supra note 204.

207

Id.

788 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

surrounded the soldier, hurling snowballs and other debris at the soldier, daring him

to fire his rifle.

208

When other members of the British army gathered in support of the soldier, the

colonists attacked the soldiers with snowballs and small objects and taunted them.

209

Attucks, armed with a club, then led the group of protestors to the Old State

House, where he struck a British soldier with a weapon made of wood. The soldier

responded by opening fire on Attucks and his followers. When the smoke cleared,

five colonists lay dead, and six others wounded. Having been struck and killed first,

Attucks had become the first casualty of the American Revolution.

210

Founding father John Adams defended the British soldiers at their murder trial.

He argued that the protesters who engaged the soldiers consisted of a “motley rabble

of saucy boys, negros, mulattoes, Irish Teagues and outlandish Jack Tars.”

211

described Crispus Attucks as having “undertaken to be the hero of the night.”

212

But

Adams would later write that the “foundation of American independence was laid”

by the incident, and Samuel Adams and other patriots commemorated the massacre

annually to protest British rule.

213

Some of the starkest examples of purposeful violence committed out of absolute

political necessity occurred in the context of slavery. If the political necessity

defense should only be deployed as a defense of actions taken to abate only the most

egregious social wrongs, human trafficking is undoubtedly such a wrong. Slavery

is a consensus social wrong, at least in hindsight, that falls in the most egregious

category, and as such, provides a yardstick for assessing other social wrongs, par-

ticularly modern social wrongs, and the relative justifiability of forcible acts taken

in response to these wrongs.

Slavery is also an especially relevant context because it was essentially a gov-

ernment policy. That is, slavery was legal when various forcible resistors undertook

arms to eliminate the practice. So, any acts undertaken to this end were criminal

even though the institution itself was patently odious and derelict to the core ideas

upon which this country was founded.

208

Black History Boston: The Hero of the Boston Massacre, Crispus Attucks, CITY OF

BOS. (last updated Feb. 21, 2020), https://www.boston.gov/news/black-history-boston-hero

-boston-massacre-crispus-attucks [https://perma.cc/KJ8Y-SLUL].

209

Id.

210

LESLIE ALEXANDER &WALTER C. RUCKER JR., ENCYCLOPEDIA OF AFRICAN AMERI-

CAN HISTORY 328 (2010).

211

LAWRENCE GROSSBERG ET AL., CULTURAL STUDIES 191 (1992).

212

RAY RAPHAEL,APEOPLE’S HISTORY OF THE AMERICAN REVOLUTION:HOW COMMON

PEOPLE SHAPED THE FIGHT FOR INDEPENDENCE 281 (2011); see also John Adams, Speech

by John Adams at the Boston Massacre Trial, B

OS.MASSACRE HIST.SOC’Y, http://www

.bostonmassacre.net/trial/acct-adams3.htm [https://perma.cc/DM3E-DAP2].

213

HILLER B. ZOBEL,THE BOSTON MASSACRE 301 (1st ed. 1970).

2023] LET MY PEOPLE GO,PART ONE 789

The first major slave revolt occurred well before the American Revolution in

1712 in what is now known as New York City.

214

The province at the time was

home to one of the largest enslaved populations in the colonies.

215

It was a Dutch

colony until 1664,

216

and the Dutch enslaved had a measure of rights greater than

enslaved Americans would have under English colonial rule.

217

When the English

took over, they required enslaved people to carry a pass, prohibited marriage, and

outlawed gatherings among groups of more than three persons.

218

Twenty-three

enslaved Africans took to the streets in protest.

219

They killed nine whites and

wounded five to six others,

220

and the colonial government retaliated by arresting

over seventy Blacks during the revolt, most of whom had nothing to do with the

rebellion.

221

The colonial government tried twenty-seven of the rebels, sentenced

twenty-one of them to death, and then burned twenty of them at the stake—a

punishment reserved for Blacks sentenced to death.

222

More than two decades later, in September of 1739, a group of enslaved Afri-

cans from the Central African Kingdom of the Kongo, an area the colonists believed

nurtured a less pliable brand of slave than some other African countries, met near

the Stono River near Charleston, South Carolina, on the day following the Feast of

Nativity of May.

223

The group organized and planned a military campaign to St.

Augustine, Florida, a Catholic city the Spanish had established as a free zone, under

the leadership of Jemmy Cato.

224

Cato, like most leaders of slave rebellions (includ-

ing Toussaint Louverture of Haiti), was literate, a fact of which the white planter

214

Letter from Robert Hunter, The New York Slave Revolt of 1712, SLAVE REBELLION

WEBSITE (citing E.B. CALLAGHAN,DOCUMENTS RELATIVE TO THE COLONIAL HISTORY OF

THE

STATE OF NEW YORK (1885)), https://web.archive.org/web/20160614121602/http://slave

rebellion.org/index.php?page=new-york-slave-revolt-1712 [https://perma.cc/B7ZN-ELBV]

(last visited Mar. 1, 2023).

215

Id.

216

Dana Schulz, 356 Years Ago, New Amsterdam Became New York City, 6SQFT (Sept. 8,

2020), https://www.6sqft.com/353-years-ago-new-amsterdam-became-new-york-city [https://

perma.cc/RU24-985Y].

217

Michael Pollak, Determining the Legal Rights of Slaves, N.Y. TIMES (Mar. 27, 2014),

https://www.nytimes.com/2014/03/30/nyregion/determining-the-legal-rights-of-slaves.html

[https://perma.cc/4YJP-4UBC].

218

Lorraine B. Diehl, Skeletons in the Closet, N.Y. MAG., Oct. 5, 1992, at 78, 80.

219

Id.

220

JESSIE CARNEY SMITH,BLACK FIRSTS: 4,000 GROUND-BREAKING AND PIONEERING

HISTORICAL EVENTS 126 (3d ed. 2012).

221

WILLIAM PENCAK,HISTORICAL DICTIONARY OF COLONIAL AMERICA 161 (2011).

222

Id.

223

Marjoleine Kars, 1739 Stono Rebellion, in DISASTERS,ACCIDENTS, AND CRISES IN

AMERICAN HISTORY:AREFERENCE GUIDE TO THE NATION’S MOST CATASTROPHIC EVENTS

22, 22–23 (2008).

224

Id. at 23.

790 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

class was acutely aware.

225

He and his followers had been Catholic soldiers in their

home country.

226

The army commenced its campaign by openly marching down the

road, chanting “Liberty!” and bearing a banner that bore the word.

227

An additional

sixty or so joined them on this march.

228

The army destroyed six plantations and neutralized approximately twenty whites

along the way before the South Carolina militia intercepted them.

229

In the battle that

followed, twenty-five white militia members and thirty-five of the rebels were

killed.

230

Those who were captured were tried.

231

However, the trials were not re-

ported, so there is no record of the proceedings.

232

The colonial government mounted

the severed heads of the rebel leaders on stakes along the most populous roadways

near the sites of capture as an unmistakable omen to aspiring insurgents.

233

To this

day, the roadway is called “Blackhead Signpost Road.”

234

In addition to the multitude of consummated slave rebellions, several planned

rebellions were thwarted before coming to fruition. One of the most notable of these

is commonly known as Gabriel’s Rebellion, organized by Gabriel Prosser in 1800.

235

Like Cato, Prosser was literate.

236

He was also a tradesman.

237

He and a small

group of others planned to attack Richmond, the capital of Virginia.

238

The plan was

to target Federalists and prominent white business owners and traders in order to

further democratize Virginia.

239

The group planned to gather additional soldiers as

225

See NATIONAL HUMANITIES CENTER,TWO VIEWS OF THE STONO SLAVE REBELLION:

OUTH CAROLINA 1739 4 (2009) (describing that Cato was literate); SMITH, supra note 220

(describing Toussaint Louverture as a “self-educated slave”).

226

Steven J. Niven, Jemmy, ENSLAVED.ORG (May 31, 2013), https://enslaved.org/full

Story/16-23-92889/ [https://perma.cc/B867-MHS7].

227

Id.

228

Kars, supra note 223, at 23.

229

James Moore, South Carolina, DIGITAL HIST. (2021), https://www.digitalhistory.uh

.edu/disp_textbook.cfm?smtID=3&psId=89 [https://perma.cc/J3C2-Q2NA].

230

Kars, supra note 223, at 23.

231

See PAUL FINKELMAN, SLAVERY IN THE COURTROOM: AN ANNOTATED BIBLIOGRAPHY

AMERICAN CASES 197 (1998).

232

Id.

233

NATIONAL HUMANITIES CENTER, supra note 225, at 1.

234

MANNING MARABLE,LIVING BLACK HISTORY:HOW REIMAGINING THE AFRICAN-

MERICAN PAST CAN REMAKE AMERICA’S RACIAL FUTURE 4 (2006).

235

See generally James O’Neil Spady, Power and Confession: On the Credibility of the

Earliest Reports of the Denmark Vesey Slave Conspiracy, 63 W

M.&MARY Q. 287, 287–304

(2011).

236

Simon Newman, The World Turned Upside Down: Revolutionary Politics, Fries’ and

Gabriel’s Rebellions, and the Fears of the Federalists, 67 J. M

ID-ATLANTIC STUD. 5, 6

(2000).

237

Id.

238

Id.

239

Id.

2023] LET MY PEOPLE GO,PART ONE 791

they progressed, marching under a banner that read “Death or Liberty.”

240

However,

they were betrayed.

241

Prosser and his twenty-five soldiers were hanged.

242

After thwarting Gabriel’s Rebellion, South Carolina lawmakers made the

education of Black Americans, free and enslaved alike, more difficult to prevent

additional revolts.

243

Knowledge was thought to lead to elevated self-worth and to

the development of the type of critical thinking that illuminated conceptual inconsis-

tencies, ultimately aggravating a latent rage and desire for freedom.

244

South

Carolina lawmakers also placed draconian restrictions on travel and prohibited

Blacks from assembling for any reason in an effort to thwart opportunities for

planning and organization.

245

Lawmakers likely understood Denmark Vesey’s thwarted slave rebellion as

further proof of the dangers of Black education, for he was also literate. Like

Prosser, Vesey was exposed by a turncoat.

246

His elaborate military plan necessarily

included many moving parts and demanded the cooperation and confidentiality of

several individuals.

247

This, in turn, made the plan vulnerable to infiltrators, cow-

ards, and the slow-witted who loved their masters more than they loved freedom,

probably more than they loved themselves, and definitely more than they loved

those similarly situated to them. Indeed, George Wilson informed due to an inexpli-

cable, emotion-soaked loyalty to his master.

248

Joe LaRoche, who had originally

supported the uprising, informed because he was a coward.

249

Vesey and five of his

soldiers were convicted post-haste and promptly hanged.

250

In addition to literacy, South Carolina lawmakers attributed the rebellion to the

influence of Christianity and the African Methodist Episcopal (AME) Church,

240

Mark Weakley, RVA50 Object 10: “Death or Liberty, 1933”, VALENTINE (Jan. 3, 2014),

https://thevalentine.org/rva50-object-10-death-or-liberty-1993 [https://perma.cc/TC5S-48AL].

241

Id.

242

Jchaverswric, Memorial Service Held for Gabriel Prosser and Other Slaves Hanged,

ABC8N

EWS (Aug. 31, 2017, 8:47 PM), https://www.wric.com/news/memorial-service-held

-for-gabriel-prosser-and-other-slaves-hanged/ [https://perma.cc/T5Q3-2MYQ].

243

Antonio T. Bly, Slave Literacy and Education in Virginia, ENCYCLOPEDIA VA. (Apr. 26,

2021), https://encyclopediavirginia.org/entries/slave-literacy-and-education-in-virginia/ [https://

perma.cc/ZL9S-J7HU].

244

See PATRICK RAEL,EIGHTY-EIGHT YEARS:THE LONG DEATH OF SLAVERY IN THE

UNITED STATES, 1777–1865, at 166 (2015).

245

See BRITISH AND FOREIGN ANTI-SLAVERY SOCIETY,SLAVERY AND THE INTERNAL

SLAVE TRADE IN THE UNITED STATES OF NORTH AMERICA 194 (1841).

246

Philip Rubio, “Though He Had a White Face, He Was a Negro in Heart”: Examining

the White Men Convicted of Supporting the 1822 Denmark Vesey Slave Insurrection

Conspiracy, 113 S.C. H

IST.MAG. 50, 55 (2012).

247

Id. at 53–55.

248

See Spady, supra note 235, at 289.

249

See id. at 294–95.

250

Richard C. Wade, The Vesey Plot: A Reconsideration, 30 J. S. HIST. 143, 144 (1964).

792 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

where Vesey was a pastor.

251

As a result, government officials, many, no doubt, self-

professed Christians, razed the AME church and prohibited the congregation from

assembling elsewhere, effectively curtailing the practice of religion and forcing the

worship of their own God underground.

252

The South Carolina government also

placed severe restrictions on travel and passed legislation that effectively made it

impossible for enslaved Black Americans to obtain their freedom.

253

The most successful insurrection precipitated by government oppression in

African American history was led by one of the most enigmatic figures in American

history. As a toddler, Nat Turner would eerily provide details about events that

occurred before his birth.

254

He would also, according to some, have visions of

things to come.

255

One of his visions, one that undoubtedly fueled his later rebel-

lions, appeared when he:

[H]eard a loud noise in the heavens, and the Spirit instantly

appeared to me and said the serpent was loosened, and Christ

had laid down the yoke he had borne for the sins of men, and

that I should take it on and fight against the serpent for the time

was fast approaching when the first should be last and the last

should be first.

256

While the visions are not known to be typical, like other leaders of slave

rebellions, (1) he was literate, (2) he was a minister, (3) he was hanged for his

crimes, and (4) his rebellion resulted in anti-American laws suppressing the right to

read, the right to assemble, and the right to travel.

257

Turner famously said prior to the rebellion that he was going to “slay my

enemies with their own weapons.”

258

One wonders whether Turner understood the

overall political import of this statement, the irony it revealed, and the American

hypocrisy it fossilized. No doubt Turner meant it quite literally; he and his soldiers

would turn any weapons used against them on their capturers. The figurative import

251

Lacy Ford, An Interpretation of the Denmark Vesey Insurrection Scare, in THE

PROCEEDINGS OF THE SOUTH CAROLINA HISTORICAL ASSOCIATION 7, 9 (2012).

252

See id. at 14–15.

253

The Southern “Black Codes” of 1856–66, CONST.RTS.FOUND., https://www.crf-usa

.org/brown-v-board-50th-anniversary/southern-black-codes.html [https://perma.cc/5DSG

-LEDA] (last visited Mar. 1, 2023).

254

Christopher Klein, 10 Things You May or May Not Know About Nat Turners Rebellion,

ISTORY.COM (May 24, 2016), https://www.history.com/news/10-things-you-may-not-know

-about-nat-turners-rebellion [https://perma.cc/K865-96N9].

255

Id.

256

Id.

257

Id.

258

Stephen Oates, Children of Darkness, AM.HERITAGE (Oct. 1973), https://www.ameri

canheritage.com/children-darkness [https://perma.cc/V3K7-BPXN] (last visited Mar. 1, 2023).

2023] LET MY PEOPLE GO,PART ONE 793

of the statement, however, highlights one of the less conspicuous themes of this

Article: underscoring how the laws erected by the status quo to effect their ends can

be equally applicable to subvert those ends.

On February 12, 1831, Nat Turner looked up towards the heavens and envisaged

an incredible blue-green-colored sun.

259

He interpreted this stunning, mysterious

solar eclipse as a sign from God to commence the rebellion that he had been consid-

ering for some time.

260

He began organizing his troops and coordinating a plan. On

August 21, Turner gathered his most trustworthy advisors as well as his most loyal

troops.

261

The revolt began successfully enough the next day. The ranks of Turner’s

rebel army swelled as they swerved from house to house, emancipating other

enslaved African Americans.

262

Turner and his rebel army neutralized 55–65 people,

the overwhelming majority of whom were wealthy, landed individuals of the planter

class.

263

They granted clemency to impoverished whites and their families, believing

them to be relatively blameless.

264

Ultimately, the state militia quelled the rebellion

through overwhelming force.

265

The effort took thousands of militiamen, hundreds

of federal troops,

266

and mobile artillery units.

267

Per usual, the retaliation was barbarous, alarmingly disproportionate, and im-

posed on the Black community, collaborators, civilians, and bootlickers alike.

Suspected participants were beheaded, and “their severed heads were mounted on

poles as a grisly form of intimidation.”

268

As many as 200 Black people were killed,

most of whom had no part in the uprising.

269

Turner, himself, evaded capture for several weeks. When he was finally appre-

hended, he was charged and convicted for “conspiring to rebel and making insurrec-

tion.”

270

In addition to being hanged, his dead body was drawn and quartered.

271

But

what happened next shocks the conscience.

259

Klein, supra note 254.

260

Oates, supra note 258.

261

Id.

262

Id.

263

Id.

264

Id.

265

ROBERT W. COAKLEY, THE ROLE OF FEDERAL MILITARY FORCES IN DOMESTIC DIS-

ORDERS 1789–1878, at 94 (1988).

266

Klein, supra note 254.

267

Id.

268

THOMAS C.PARRAMORE,TRIAL SEPARATION:MURFREESBORO,NORTH CAROLINA AND

THE

CIVIL WAR 10 (1998).

269

Christine Gibson, Nat Turner: Lightning Rod, AM.HERITAGE (Nov. 11, 2005), http://

www.americanheritage.com/articles/web/20051111-nat-turner-slavery-rebellion-virginia

-civil-war-thomas-r-gray-abolitionist.shtml [https://perma.cc/A5AL-ASCL] (last visited

Mar. 1, 2023).

270

Klein, supra note 254.

271

Id.

794 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

According to John W. Cromwell, “Turner was skinned to supply such souvenirs

as purses, his flesh made into grease, and his bones divided as trophies to be handed

down as heirlooms.”

272

Other sources report that Turner’s body was dissected and

portions of his body parts given to doctors for study, and the remaining parts

distributed to white slave owners as memorabilia.

273

Still others claim that not only

was Turner’s body boiled down to grease, but that it was then consumed by white,

slave-owning elites.

274

In typical fashion, the Virginia state legislature passed a law making it a crime

to teach African Americans, including both the free and the bonded, to read and

write.

275

It prevented all Black Americans from congregating for religious services.

This restriction had one exception that was, of course, devoured by the rule

276

African American South Carolinians could worship their Lord so long as they were

chaperoned by a licensed, white minister.

277

The draconian laws passed by the South Carolina legislature in the wake of the

Turner rebellion were mimicked by other slaveholding states. All the states that

would later comprise the confederacy now prohibited African Americans from

reading, writing, assembling, and worshiping.

278

The only successful slave rebellion, both in terms of the immediate objective

and the legal outcome, occurred on the high seas on board the slave ship Amistad

in 1839.

279

Cinque and other citizens of Sierra Leone were unlawfully kidnapped by

slavers, illegally sold into slavery, and transported from their mother country to

Cuba, where they were to be sold at retail.

280

At some point, near the coast of Cuba,

Cinque and his compatriots gained the upper hand on their capturers. They managed

to escape their manacles and overtake their kidnappers. They killed two slavers, the

captain, and the ship’s cook, in the process.

281

The crew, upon witnessing the car-

nage, abandoned ship, save the navigators whom Cinque and his soldiers captured

then strategically preserved to shuttle them back to Sierra Leon.

282

Instead of taking them back to Sierra Leone, however, the navigators surrepti-

tiously sailed north under the cover of night.

283

When the ship neared the East Coast

272

Id.

273

Id.

274

VINCENT WOODARD, THE DELECTABLE NEGRO:HUMAN CONSUMPTION AND HOMO-

EROTICISM WITHIN US SLAVE CULTURE 91 (2014).

275

ALTON HORNSBY, A COMPANION TO AFRICAN AMERICAN HISTORY 296 (2008).

276

Nicholas May, Holy Rebellion: Religious Assembly Laws in Antebellum South Carolina

and Virginia, 3 A

M.J.LEGAL HIST., 237, 237 (2007).

277

Id. at 239, 242.

278

ANGELA Y. DAVIS,WOMEN,RACE, AND CLASS 106 (1981).

279

HOWARD JONES, MUTINY ON THE AMISTAD:THE SAGA OF A SLAVE REVOLT AND ITS

IMPACT ON AMERICAN ABOLITION,LAW, AND DIPLOMACY 12–13 (1997).

280

United States v. Amistad, 40 U.S. 518, 593 (1841).

281

JONES, supra note 279, at 5.

282

Amistad, 40 U.S. at 522.

283

JONES, supra note 279, at 5.

2023] LET MY PEOPLE GO,PART ONE 795

of the United States, it was boarded by the 1831 equivalent of the U.S. Coast Guard.

284

Cinque and his compatriots were apprehended, arrested, and tried for mutiny, a

capital crime.

285

In 1840, a federal district court held that the men were unlawfully kidnapped

and illegally transported to the Americas in violation of international law.

286

The

court further found that, since their subjugation was illegal, they had the right of

freemen to use any means necessary, including killing, to escape their illegal con-

finement.

287

The U.S. Supreme Court denied the government’s appeal.

288

The last major slave rebellion was John Brown’s raid on Harpers Ferry, dis-

cussed in detail in the introduction. Brown’s rebellion helped to hasten the end of

slavery by fomenting tensions between the North and South, which soon escalated

into the Civil War. The Civil War brought an end to chattel slavery, constitutional-

ized by the Thirteenth Amendment. However, right from its inception, it was clear

that the end of chattel slavery did not mean the end of involuntary servitude for Black

folks. In prohibiting enslavement, the Thirteenth Amendment contained one gaping

exception: It did not apply to those “duly” convicted of a crime—regardless of how

ridiculous, oppressive, and unfair the law violated.

289

As long as the law was manufac-

tured by the proper legislative process and implemented according to the precepts,

principles, and procedural safeguards of the criminal justice system, it supported the

massive chasm created by the convict exception to the Thirteenth Amendment.

290

The convict exception begot a perpetual effort by racial conservatives to return

African Americans to the whip end of the white landed class’s dominion.

291

It is an

effort, according to many commentators and scholars, that continues to this day.

292

What is indisputable, however, is the astonishing adaptability and relentlessness of

this effort from the passage of the Thirteenth Amendment in 1865 right up until the

turn of the new millennium, some 135 years later.

Almost immediately after the passage of the Thirteenth Amendment, the South

began to contrive artifices to circumvent the amendment by exploiting the amend-

ment itself.

293

Southern lawmakers first instituted the Black Codes in 1865 and 1866,

284

Amistad, 40 U.S. at 526–27.

285

Samuel Momodu, The Amistad Mutiny, BLACKPAST (Aug. 23, 2017), https://www.black

past.org/african-american-history/amistad-mutiny-1839/ [https://perma.cc/CY63-WNPV].

286

The Supreme Court Rules on Amistad Slave Ship Mutiny Case, HISTORY.COM, https://

www.history.com/this-day-in-history/supreme-court-rules-on-amistad-mutiny [https://perma

.cc/3EBT-WBHK].

287

Id.

288

Id.

289

U.S. CONST. amend. XIII.

290

Id.

291

MICHELLE ALEXANDER, THE NEW JIM CROW MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS 39 (2020).

292

Id.

293

5 SCOTT W. GAYLORD ET AL., FEDERAL CONSTITUTIONAL LAW:THE FOURTEENTH

AMENDMENT 29 (2d ed. 2017).

796 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

a series of laws attaching petty offenses, like vagrancy, to inordinate sentences and

fabricating completely new crimes, like being out at night without a work permit.

294

The purpose of the Black Codes was to return African Americans to slavery in effect

with agency by law.

295

They compelled African Americans to work for emaciated

wages by requiring them to sign annual labor contracts to avoid vagrancy charges,

requiring permission to travel and permission to sell farm produce. The Black Codes

also compelled Black Americans to work for phantom wages by consigning them

to jail upon conviction of vagrancy, one of the recently fabricated criminal offenses,

or upon conviction of trumped charges.

296

While in jail, of course, African American

prisoners were forced to work for the state, county, or local government that manu-

factured the laws underlying their sentences.

297

As a result of the Black Codes, outraged Republican national legislators passed

the Civil Rights Act of 1866 and the Fourteenth Amendment, which expressly af-

forded citizenship to the newly freed, the right to equal protection under the law, and

the right to due process.

298

The former rebel states responded by refusing Blacks the

franchise or erecting insurmountable barriers to voting, allowing white southerners

to preserve the political power they had prior to the Civil War.

299

The Republican Congress countered with the Fifteenth Amendment, which

guaranteed African American men the right to vote.

300

This particularly stoked the

wrath of white southerners, giving rise to the Ku Klux Klan who reigned terror

down on Black folk and white Republican legislators alike.

301

The Klan murdered

several Republican officials and outspoken Blacks during their warpath.

302

Incensed Republicans responded with the Enforcement Acts, also known as the

Ku Klux Klan acts, and, in 1867, the Reconstruction Acts, which placed the former

Confederate states under military jurisdiction.

303

As a result, federal troops were

dispatched to the South to protect the newly minted constitutional rights of African

Americans.

304

The troops monitored local governments, supervised elections, and

worked to protect the newly freed, as well as Republican elected officials, from

white supremacist vigilantes, white supremacist organizations, and law enforcement

294

ALEXANDER, supra note 291, at 46.

295

How the Black Codes Limited African American Progress After the Civil War, HIS

TORY

.COM (Oct. 1, 2020), https://www.history.com/news/black-codes-reconstruction-slavery

[https://perma.cc/6SKK-YTL3].

296

Id.

297

ALEXANDER, supra note 291, at 39; id.

298

RICHARD ZUCZEK, ENCYCLOPEDIA OF THE RECONSTRUCTION ERA 166 (2006).

299

Id.

300

Id. at 250.

301

Id. at 358–59.

302

Id.

303

Id. at 171, 244, 365.

304

Id. at 245.

2023] LET MY PEOPLE GO,PART ONE 797

officials.

305

The military presence gave rise to an unprecedented explosion in Black

political power.

306

At the beginning of 1867, African Americans did not occupy a single seat in any

elective office in the South.

307

In a few years, African Americans held over fifteen

percent of public offices in the South. This was a larger percentage of Black office-

holders in the region than in 1990.

308

From 1867 to 1877, over 600 Black Americans

were elected to state legislatures and seventeen Black men were elected to the U.S.

Congress or Senate.

309

Another 900 or so occupied elective offices in local govern-

ment.

310

This period from 1867 to 1877, known as Reconstruction, was an oasis for

African Americans in a desert of deprivation, repression, and disenfranchisement.

311

Yet it was only an oasis.

312

Reconstruction ended after the Republicans cut a backroom deal with Democrats

that allowed the Republican Rutherford B. Hayes to be seated as President in

exchange for the removal of the federal troops in the South.

313

The troops were the

last line of defense between African Americans and the despotism of white suprem-

acy. Public support for Reconstruction in the North had long waned, and the Repub-

lican Party misplaced its stomach for eliminating the injustices slavery left in its

wake.

314

Predictably, when the federal troops were removed, the nightmare for

African Americans resumed in the South, ushering in a new era of terror, repression,

and disenfranchisement. This era, commonly known as Jim Crow, would last nearly

a hundred years.

315

Legal segregation, an unprecedented number of lynchings, and

the near complete disembowelment of Black political power marked the era.

316

Southern lawmakers also gave slavery a new face during Jim Crow: convict leas-

ing. Convict leasing resembled its cousin, the Black Codes, insofar as the contriv-

ance of criminal offenses and the bestowal of wildly disproportionate sentences.

317

305

Id. at 362.

306

Id.

307

History.com Editors, Black Leaders During Reconstruction, HISTORY.COM (June 24,

2010), https://www.history.com/topics/american-civil-war/black-leaders-during-reconstruc

tion [https://perma.cc/Z4EE-NYEM].

308

Id.

309

Id.

310

Id.

311

Id.

312

C. VANN WOODWARD,REUNION AND REACTION:THE COMPROMISE OF 1877 AND THE

END OF RECONSTRUCTION 3–21 (1991).

313

Id. at 7–8.

314

See id. at 9–10.

315

What Was Jim Crow, FERRIS STATE UNIV., https://www.ferris.edu/HTMLS/news/jim

crow/what.htm [https://perma.cc/TSC7-AJ8N] (last visited Mar. 1, 2023).

316

See Michael O’Malley, Jim Crow and the 1890s, FERRIS STATE UNIV. (Spring 1999),

https://www.ferris.edu/HTMLS/news/jimcrow/links/misclink/1980s.htm [https://perma.cc

/87Z5-29Y5].

317

William Andrew Todd, Convict Lease System, NEW GA.ENCYCLOPEDIA (2005),

798 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

However, instead of the government directly exploiting the labor of inmates, the

state would lease the prisoners out to private businesses for a fee, and the private

entities then exploited the inmates for capital gain.

318

This system endured for

several decades, making only incremental adjustments to survive.

319

In the early 1970s, convict leasing mutated into mass incarceration. Mass in-

carceration is described by Michele Alexander as “a stunningly comprehensive and

well-disguised system of racialized social control that functions in a manner strik-

ingly similar to Jim Crow.”

320

Spurred by the racially coded language of “law and

order,” an alleged “war on drugs” led to an exponential rise in incarceration rates.

It continues today, although a new awareness is developing, and a consensus is

beginning to form that mass incarceration is an unqualified social ill.

From 1865 until the 1950s, the Black community’s response to the various

permutations of slavery was relatively docile. There were no Nat Turners, Denmark

Veseys, or Gabriel Prossers. This was the case in part because of the effectiveness

of white domestic terror perpetrated by white doctors, lawyers, businessmen, and

other respected members of the white establishment, including police officers,

doubling as KKK members. The primary vehicles of this white domestic terrorism

were lynching, and ironically, riots. These riots, these white riots, unlike the riots

of their forefathers, were not used to protest tyranny but, indeed, to impose it.

Sparked mostly by Black social, political, and economic advances,

321

the 100-year

white riot sought to and was successful at almost completely wiping out any politi-

cal and economic monuments of Black advancement almost as quickly as these

monuments were erected.

1. The White Riot

Rioting has been the primary vehicle for expressing forcible rage and tumultu-

ous dissent in this country since the Stamp Act Riots of 1765.

322

Prior to the 1960s,

most of the almost innumerable riots involved violent white aggression against

people of color. Disgruntled whites were able to engage in violent acts, including

rioting and lynching with impunity.

323

https://www.georgiaencyclopedia.org/articles/history-archaeology/convict-lease-system

[https://perma.cc/E6M8-UQ43].

318

Id.

319

Id.

320

ALEXANDER, supra note 291, at 4.

321

KLAUS P. FISCHER,AMERICA IN WHITE,BLACK, AND GRAY:AHISTORY OF THE

STORMY 1960S, at 18 (2007).

322

See generally Donna Spindel, The Stamp Act Riots (Jan. 27, 1975) (Ph.D. thesis, Duke

University).

323

See generally VIOLENCE IN AMERICA:AN ENCYCLOPEDIA (Ronald Gottesman &

Richard Maxwell Brown eds., 1989); T

ERENCE FINNEGAN,ADEED SO ACCURSED LYNCHING

MISSISSIPPI AND SOUTH CAROLINA (2013).

2023] LET MY PEOPLE GO,PART ONE 799

In 1863, white rioters in New York went on a killing spree, responding to a federal

announcement of a draft to raise an army for the Civil War.

324

Hell-bent on destruction,

the rioters, in addition to murdering innocent Blacks, set Black-owned businesses

ablaze, ransacked their schools and orphanages, and razed their churches.

325

In 1866, riots broke out in Memphis, Tennessee, after an altercation between a

white cop and Black soldiers recently returned home after the Civil War.

326

White

mobs from around the city stormed Black neighborhoods, raped five, murdered

forty-six, maimed seventy-five (including women and children), committed one-

hundred robberies, and torched ninety-one homes.

327

No charges were ever brought

against either the instigators of the riot or the participants.

328

In Colfax, Louisiana, in 1873, a contingency of white Democrats, enraged about

the resolution of an election dispute which placed a Republican in the governor’s

seat, murdered approximately 150 African Americans, most of whom had surren-

dered peacefully, in what would come to be known as the Colfax Massacre.

329

handful of the perpetrators were convicted,

330

but the defendants appealed to the

Supreme Court, which held that the Enforcement Act, which previously allowed the

federal government the reach to prosecute civilians who committed acts of domestic

terrorism, including the perpetrators in Colfax, was unconstitutional.

331

White paramilitary groups like the White League were now free to pursue their

agendas of terror and intimidation virtually unobstructed. And they did. Not long

thereafter, the Democratic Party, peopled as it were by white supremacists, regained

political power through murder, intimidation, and suppression of the Black vote.

332

In 1898, a prosperous and politically powerful Black elite raised the envy and

ire of white politicians in Wilmington, North Carolina.

333

In an effort to exterminate

324

ERIC FONER,RECONSTRUCTION:AMERICA’S UNFINISHED REVOLUTION, 1863–1877,

at 32 (1988); see generally A

DRIAN COOK,THE ARMIES OF THE STREETS:THE NEW YORK

CITY DRAFT RIOTS OF 1863 (2015).

325

See generally COOK, supra note 324.

326

See generally STEPHEN V.ASH,AMASSACRE IN MEMPHIS:THE RACE RIOT THAT

SHOOK THE NATION ONE YEAR AFTER THE CIVIL WAR (2013).

327

H.R. REP.NO. 101-39, at 34 (1866).

328

May 1–3, 1866: Memphis Massacre, ZINN EDUC.PROJECT (Oct. 28, 2022), https://

www.zinnedproject.org/news/tdih/1866-memphis-riots/ [https://perma.cc/SDR3-6C7N].

329

The Colfax Massacre Occurs, AFRICAN AM.REGISTRY, https://aaregistry.org/story/the

-colfax-massacre-occurs [https://perma.cc/ZRK5-D8KL] (last visited Mar. 1, 2023); see also

EEANNA KEITH,THE COLFAX MASSACRE:THE UNTOLD STORY OF BLACK POWER,WHITE

TERROR, AND THE DEATH OF RECONSTRUCTION (2009).

330

The Colfax Massacre Occurs, supra note 329.

331

United States v. Cruikshank, 92 U.S. 542, 548, 560 (1875).

332

See KEITH, supra note 329, at 60–61.

333

DAVID ZUCCHINO,WILMINGTON’S LIE:THE MURDEROUS COUP OF 1898 AND THE RISE

WHITE SUPREMACY (2020); Ta-Nehisi Coates, Black Pathology Crowdsourced: Why We

Need Historians In Debates About Today’s Cultures, A

TLANTIC (Apr. 4, 2014), https://www

.theatlantic.com/politics/archive/2014/04/black-pathology-crowdsourced/360190 [https://

800 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

Black political power and retake city government, white Democrats staged a coup.

334

The politicians concocted a lie, one that was tried and true, that Black men were

raping a white woman.

335

All hell broke loose.

336

Up to 250 African Americans were

killed in the carnage that followed.

337

The white supremacist Democrats, Dixiecrats,

fully took over the Wilmington government without intervention by either the state

or federal government. It has been the only successful coup d’état in American

history and the most extreme attack on the idea of democracy since the founding of

the British colonies.

338

The Wilmington massacre led to a new era of Jim Crow, an

era of extreme segregation, economic repression, and political disenfranchisement,

and one where the primary means of enforcing all of these were lynching, assassina-

tions, and mass murder.

339

In 1906, playing on the fear of working white Americans of the ascending Black

middle class in Atlanta, the Democratic candidates for Georgia governor, Clark

Howell, and Hoke Smith, ramped up their racial rhetoric.

340

When a newspaper pub-

lished a false story about two white women being raped, a white mob, 10,000

strong, took to the streets, killing as many as 100 African Americans and wounding

several hundred more.

341

perma.cc/J4MB-GAXF]; John DeSantis, Wilmington, N.C., Revisits a Bloody 1898 Day, N.Y.

IMES (June 4, 2006), https://www.nytimes.com/2006/06/04/us/04wilmington.html [https://

perma.cc/3Z4M-8R2V]; Kent McCoury, Alfred Moore Waddell (1834–1912), N.C. H

IST.PROJ-

ECT, https://northcarolinahistory.org/author/kent-mccoury [https://perma.cc/VY45-AAG7];

Richard L. Watson Jr, Furnifold Simmons and the Politics of White Supremacy, in R

ACE,

LASS AND POLITICS IN SOUTHERN HISTORY 133 (Lindsey Butler & Alan Watson eds., 1989).

334

Lauren Collins, A Buried Coup d’État in the United States, NEW YORKER (Sept. 19,

2016), https://www.newyorker.com/magazine/2016/09/19/a-buried-coup-detat-in-the-united

-states [https://perma.cc/KTE7-ALD4].

335

1898 WILMINGTON RACE RIOT COMMISSION, 1898 WILMINGTON RACE RIOT REPORT

349 (2006), https://digital.ncdcr.gov/digital/collection/p249901coll22/id/5353 [https://perma

.cc/AZM5-2A46].

336

Id.

337

Scott Neuman, Wilmington Marks 123 Years Since Coup and Massacre, NPR (Nov. 10,

2021), https://www.npr.org/2021/11/10/1053562371/1898-wilmington-coup-massacre [https://

perma.cc/GY5E-E32X].

338

Will Doran, White Supremacists Took Over a City—Now NC Is Doing More to Re-

member the Deadly Attack, W

INSTON-SALEM J. (Jan. 1, 2018), https://journalnow.com/white

-supremacists-took-over-a-city-now-nc-is-doing-more-to-remember-the-deadly/article_a9d

267b6-4b8c-5710-8548-c6c40af495a4.html [https://perma.cc/5Y24-GLFR].

339

James Loewen, Democracy Betrayed: The Wilmington Race Riot of 1898 and Its Legacy,

6 S

OUTHERN CULTURES 90, 90–91 (Fall 2000) (reviewing DAVID N. CECELSKI &TIMOTHY

B. TYSON,DEMOCRACY BETRAYED (1998)).

340

Gregory Mixon & Clifford Kuhn, Atlanta Race Riot of 1906, NEW GA.ENCYCLOPEDIA

(Sept. 23, 2005), https://www.georgiaencyclopedia.org/articles/history-archaeology/atlanta

-race-riot-1906 [https://perma.cc/8AHS-N9LL]; see generally M

ARK BAUERLEIN,NEGRO-

PHOBIA ARACE RIOT IN ATLANTA 1906 (2001).

341

Id.

2023] LET MY PEOPLE GO,PART ONE 801

In 1917, several white massacres occurred in East St. Louis, Illinois and Chester,

Pennsylvania, claiming over a hundred of Black lives.

342

In 1919, one of the greatest massacres in American history was perpetrated in

Elaine, Arkansas. White Negrophobes murdered over 200 Black men, women, and

children after Black workers dared to unionize.

343

Not only did the state and federal

government not intervene, both governments actually participated in the slaughter

of dozens of American citizens.

344

The death toll increased after whites surrounded both sides of a church where

Blacks had taken cover. The lynch mob began to fire into the church so recklessly

that they ended up shooting one another.

345

The friendly fire killed one of the mob

members.

346

However, the word went out throughout the state and neighboring states

that Blacks were shooting back in Elaine, Arkansas.

347

Lynch mobs comprised of

plantation owners formed throughout the area.

348

Then white supremacist murderers

formed posses around Arkansas and neighboring states and flooded Elaine. Their

first target was an elderly Black woman standing on her porch.

349

After murdering

her, they continued down the road and started shooting at random Black people they

found working in the fields.

350

The Governor of Arkansas contacted the White

House and requested the military to come down and quash the rebellion—Elaine’s

Black people.

351

The White House complied, and federal troops started firing in-

discriminately at Black folks on sight. They shot down workers tending the fields

in a spectacle that observers likened to hunting “rabbits . . . with machine guns” and

others who were held up in their homes, scared to death, but who hoped that the

military was there to protect them.

352

The Elaine Massacre was only one of twenty-

six incidents of racial violence that took place in the Red Summer of 1919.

353

342

The East St. Louis Riot, PBS, https://www.pbs.org/wgbh/americanexperience/features

/garvey-riot/ [https://perma.cc/T9DV-RHS8]; Will Mack, The Chester, Pennsylvania Race

Riot (1917), B

LACKPAST (Nov. 22, 2017), https://www.blackpast.org/african-american-his

tory/1917-race-riot-chester-pennsylvania-1917/ [https://perma.cc/KMB2-B799].

343

Clay Cane, Not Just Tulsa: Race Massacres That Devastated Black Communities In

Rosewood, Atlanta and Other American Cities, BET (July 19, 2020), https://www.bet.com

/news/national/2019/12/17/not-just-tulsa--five-other-race-massacres-that-devastated-black

.html [https://perma.cc/6P4N-MJZ9].

344

THE ELAIN MASSACRE:THE RED SUMMER OF 1919 (MjrVisuals 2019).

345

Id.

346

Id.

347

Id.

348

Id. at 28:52.

349

Id. at 29:42.

350

Id. at 29:45.

351

Id.

352

Id. at 31:28.

353

Red Summer, NAT’L WWI MUSEUM &MEM’L (Oct. 19, 2022, 5:43 PM), https://www

.theworldwar.org/learn/about-wwi/red-summer [https://perma.cc/4PFC-96TH].

802 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

In 1921, white rioters in Tulsa, Oklahoma obliterated one of the most prosper-

ous Black communities in the history of the country.

354

The rioters dropped bombs

on Black businesses and homes from aircraft and shredded innocent Black people

with hot lead, discharged from rapid-fire machine guns.

355

When it was complete,

several hundred innocent Black Americans, citizens of Tulsa, lay slain, riddled with

bullets or sheathed in charred skin.

356

In 1923, in Rosewood, Florida, an estimated 150 African Americans were mur-

dered in cold blood after a white woman claimed she had been assaulted by an

African American man.

357

There were also several white massacres in the 1940s, most related to African

Americans moving into white neighborhoods and integrating other spaces. These

include the Airport Homes white riots in Chicago, the Fernwood Park White Mas-

sacre in Chicago, the Fairground Park Riots, the Anacostia Pool Riot in Washington

D.C., the Peekskill White Riots in Peekskill, New York, and the Englewood White

Riot in Englewood, Chicago.

358

Additionally, in the 1950s there was the Cicero

White Riot in Cicero, Illinois.

359

It is estimated that white domestic terrorists murdered close to 50,000 African

Americans over the course of 1865–1895 alone.

360

None of the perpetrators ultimately

received a criminal sentence,

361

an impunity never extended to Black Americans.

362

Indeed, forcible dissent has been met not only with criminal penalties, following

354

See generally TIM MADIGAN,THE BURNING:MASSACRE,DESTRUCTION, AND THE

TULSA RACE RIOT OF 1921 (2013).

355

See generally id.

356

See generally id.

357

Cane, supra note 343.

358

Caroline Harney & James Charlton, The Siege on South Peoria Street, CHI.READER

(Jan. 13, 2000), https://chicagoreader.com/news-politics/the-siege-on-south-peoria-street/

[https://perma.cc/ZX7L-HL6B]; Emma Newcombe, The Legacy of the St. Louis Municipal

Pool Race Riots, G

OVERNING (Aug. 15, 2021), https://www.governing.com/now/the-legacy

-of-the-st-louis-municipal-pool-race-riots [https://perma.cc/45QB-GK84]; John Kelly, Bathing

Suits and Civil Rights, W

ASH.POST (June 10, 2017), https://www.washingtonpost.com

/local/bathing-suits-and-civil-rights-integrating-the-districts-pools-was-not-easy/2017/06/10

/e3efcf3a-4c4c-11e7-a186-60c031eab644_story.html [https://perma.cc/FNG4-AAU7]; Ross

Coen, Peekskill Riot (1949), B

LACKPAST (Sept. 19, 2022), https://www.blackpast.org/afri

can-american-history/peekskill-riot-1949/ [https://perma.cc/E9V3-N49R].

359

Samuel Momodu, The Cicero Riot of 1951, BLACKPAST (Jan. 22, 2022), https://www

.blackpast.org/african-american-history/events-african-american-history/the-cicero-riot-of

-1951/ [https://perma.cc/RR63-NEZ7].

360

Gregory P. Downs, Why the Second American Revolution Deserves as Much Attention

as the First, W

ASH.POST (July 19, 2017, 6:00 AM), https://www.washingtonpost.com/news

/made-by-history/wp/2017/07/19/why-the-second-american-revolution-deserves-as-much

-attention-as-the-first/ [https://perma.cc/FP8D-7WJQ].

361

Cane, supra note 343.

362

See infra Section II.C.

2023] LET MY PEOPLE GO,PART ONE 803

convictions by all-white juries, but also with murders by the police, the militia,

white rioters, or domestic terrorists.

363

One of the few group acts of forcible Black resistance between the prohibition

of slavery and the 1960s was orchestrated by Black soldiers in 1917 in Houston. By

virtue of their military service, they developed a more elevated sense of self as well

as a more accurate sentiment of entitlement.

364

The incident unfolded after a compli-

cated series of events, but the ire of the soldiers was raised after white police officers

beat a Black woman and dragged her out of her home, then beat a soldier who at-

tempted to come to her aid.

365

The soldiers, members of the Twenty-Fourth Infantry,

apparently decided to commit revolutionary suicide.

366

Records suggest the plan was

to march on Houston with the goal of either taking the city or dying trying.

367

Several officers raided an army supply tent and recovered a number of rifles and

several rounds of ammunition.

368

Sergeant Vida Henry led the men towards Hous-

ton.

369

They marched over two miles before facing six police, one of whom had been

involved in the earlier beating.

370

They killed the policeman and two others; records

are not clear as to what happened to the other three.

371

The soldiers then shot and

killed a National Guard captain, mistaking him for a police officer. Upon realizing he

was a military officer like them, they decided to retreat, morale having plunged.

372

Sergeant Henry led them back to their camp, shook their hands, and apprised them

of his lugubrious plan.

373

He disappeared and did as he had promised—put a gun to

his head and pulled the trigger.

374

The death toll was nineteen, including Henry and

363

See generally WILLIAM G. JORDAN,BLACK NEWSPAPERS AND AMERICA’S WAR FOR

DEMOCRACY, 1914–1920 (2003); GREGG ANDREWS,THYRA J. EDWARDS:BLACK ACTIVIST

IN THE

GLOBAL FREEDOM STRUGGLE (2011).

364

The 1917 Houston Riots/Camp Logan Mutiny, TEX.A&M UNIV.PRAIRIE VIEW, https://

www.pvamu.edu/tiphc/research-projects/the-1917-houston-riotscamp-logan-mutiny/ [https://

perma.cc/S6PH-8FRK].

365

JORDAN, supra note 363, at 85.

366

Id.

367

See id. (“[B]ut marched deliberately into town with a specific purpose in mind—to take

revenge on police officers and streetcar conductors.”).

368

The 1917 Houston Riots/Camp Logan Mutiny, supra note 364.

369

See JORDAN, supra note 363, at 85.

370

Transcript of Record at 7–8, United States v. Sergeant William Nesbit, C.M. No. 1299

(C.M.R. trial Nov. 1, 1917).

371

United States v. Corporal Robert Tillman, 2 General Court Martial Case 114575, at

535 (1918).

372

Id. at 644, 650.

373

United States v. Corporal Robert Tillman, 3 General Court Martial Case 114575, at

1322 (1918).

374

Edgar Sandoval, A Deadly Riot, and Then 3 Trials, 100 Convictions and 19 Executions,

N.Y.T

IMES (Feb. 28, 2022), https://www.nytimes.com/2022/02/26/us/houston-riot-black-sol

diers.html [https://perma.cc/8FQR-748U].

804 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

two other soldiers, four police officers, and nine others killed by the soldiers during

the rebellion.

375

The next day, the government placed Houston under martial law. The remaining

thirteen soldiers were captured and court-martialed.

376

All were taken to an undis-

closed location and lynched a minute before sunrise the next day.

377

The Houston rebellion was an aberration in the forms Black resistance took

during the 100-year period from the end of slavery until the 1960s.

378

Given the

inevitable outcome of violent resistance, it was not popular. Indeed, peaceful re-

sistance could be suicidal as well.

379

The terror wrought by the Ku Klux Klan and

the brutality promised by law enforcement officials, many of whom were Klan

members, especially in the South, had kept forcible resistance in check.

380

However, after several more decades of Jim Crow, Black Americans began to

reach the limits of their apprehension. The top on the pressure pot of oppression,

boiling over the last 100 years, was about to blow.

2. The Black Riot

The 1960s birthed an unprecedented number of movements addressing social,

cultural, and economic problems. These diverse movements were accompanied by

diverse strategies.

381

At the heart of each approach was some version, often less

literal, of Nat Turner’s strategy to use the enemy’s weapons against him.

382

The civil

rights movement weaponized the U.S. Constitution, intentionally displaying for all

to see the stark contradiction between the promise of America and the country’s

unadorned face. Aware that the rabid racists of the South could not control them-

selves when challenged by people they believed inferiors, movement leaders crafted

a non-violent strategy that was just as confrontational as it was non-violent.

The civil rights movement’s greatest weapons were civil disobedience and the

rise of live news. Leaders such as Dr. Martin Luther King Jr., C.T. Vivian, Reverend

James Orange, and James Bevel knew they had to appeal to the nation’s conscience

375

ROBERT HAYNES,A NIGHT OF VIOLENCE:THE HOUSTON RIOT OF 1917, at 169 (1976).

376

Thirteen Negro Soldiers Hanged for Rioting in Houston, Texas, N.Y. TIMES (Dec. 2,

1917), https://www.nytimes.com/2022/02/26/us/houston-riot-black-soldiers.html [https://

perma.cc/8FQR-748U].

377

Id.

378

The 1931 Chicago Housing Protests, the Harlem Riot of 1935, and the Harlem Riot of

1943 are also notable exceptions.

379

Social Protests, CONST.RTS.FOUND., https://www.crf-usa.org/black-history-month/so

cial-protests [https://perma.cc/VA54-FA6R] (last visited Mar. 1, 2023).

380

See GLADYS-MARIE FRY, NIGHT RIDERS IN BLACK FOLK HISTORY 114, 154, 158–59,

165–68 (2001).

381

See generally TODD GITLIN, THE SIXTIES: YEARS OF HOPE, DAYS OF RAGE 411–16

(2013).

382

CHRISTOPHER TOMLINS, INTHE MATTER OF NAT TURNER: A SPECULATIVE HISTORY

85 (2020).

2023] LET MY PEOPLE GO,PART ONE 805

to achieve their goals of desegregation and voting rights (Bevel was arguably the

most brilliant strategist connected to the civil rights movement, though also severely

morally disturbed). They orchestrated ingenious, non-violent attacks on segregated

lunch counters, busses, and public accommodations, and on police and government

officials restricting access to the polls, provoking the violent response they were

counting on. They employed rhetoric appealing to fundamental American principles

like democracy, freedom, justice, and equality, seeking to weaponize these ideals

by intensifying the cognitive dissonance of white America, which seemed to want

it both ways: a country where all men are created equal and endowed by their

creator with certain inalienable rights and a country where the white masses’

economic, political, social, and physical safety advantages would be protected.

The tipping point for the voting rights movement was Bloody Sunday. In 1965,

county deputies, led by the infamous Jim Clark, beat civil rights marchers, including

women and children, with cattle prods and bullwhips while Alabama state troopers

trampled them with police horses on the Edmund Pettus Bridge in Selma, Alabama.

383

As a result of this, and a subsequent march in Selma led by Dr. Martin Luther King

Jr., Lyndon Johnson forced the Voting Rights Act into law.

384

But the civil rights movement would not have been as effective if it were not for

a concurrent movement offering a less peaceful solution that made its approach

seem reasonable by comparison. This movement, the Black nationalist/Black Power

movement, tethered closer to the literal Nat Turner approach. It focused primarily

on economic justice and police brutality. These movements birthed over 100 Black

riots in the 1960s.

385

The major voice in the Sixties championing this approach was activist/icon and

national spokesman for the Nation of Islam, Malcolm X. Malcolm’s life experiences

mirrored, in many ways, the experience of the urban poor, the group at the helm of

all urban rebellions. As Henry Louis Gates explains, “Malcolm X spent much of his

youth in northern cities and became radicalized by his experiences in prison. While

there, he converted to the Nation of Islam and embraced the concept of armed self-

defense.”

386

Malcolm spoke directly to the urban poor and working class. He

“appealed to those impatient with the pace of the movement unfolding in the South.

To them, non-violence looked like capitulation.”

387

In one of his most acclaimed

speeches, “Message to the Grass Roots,” Malcolm famously remarked: “There’s no

such thing as a nonviolent revolution. Whoever heard of a revolution where they

lock arms, and sing ‘we shall overcome.’ Revolution is bloody. Revolution is hostile.

383

See GARY DONALDSON, THE SECOND RECONSTRUCTION: A HISTORY OF THE MODERN

CIVIL RIGHTS MOVEMENT 43 (2000).

384

See id. at 43–44.

385

See infra text accompanying note 399.

386

The African Americans: Many Rivers to Cross: Rise! (PBS television broadcast Nov. 19,

2013) at 36:13.

387

Id. at 36:45.

806 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

Revolution knows no compromise. Revolution overturns and destroys anything that

gets in its way.”

388

Counterintuitively to many, Black riots, like the Stamp Act Riots of 1765, have

been a surprisingly effective tool for catalyzing social change. This, of course, calls

into question the common perception of riots as irredeemably destructive.

389

The Birmingham riot of 1963, for instance, was pivotal in compelling President

John F. Kennedy to propose a major civil rights bill that targeted discrimination in

public accommodations.

390

More importantly, the urban eruptions the following year

compelled then-President Lyndon Johnson to ensure the passage of the Civil Rights

Act of 1964, which was based, in large part, on the Kennedy proposal.

391

Kennedy biographer Nick Bryant explains:

It was the black-on-white violence of May 11 . . . that repre-

sented the real watershed in Kennedy’s thinking, and the turning

point in administration policy. Kennedy had grown used to segre-

gationist attacks against civil rights protesters. But he—along

with his brother and other administration officials—was far

more troubled by black mobs running amok.

392

Timothy B. Tyson affirms this position, writing that “[t]he violence threatened . . .

helped cement White House support for civil rights. It was one of the enduring

ironies of the civil rights movement that the threat of violence was so critical to the

success of nonviolence.”

393

Dr. King referred to riots as “the language of the unheard.”

394

Malcolm called

them “the chickens coming home to roost.”

395

Riots represented both the language

of the poor, oppressed, and powerless and a creature of American history, policy,

and indifference.

Beginning in the early 1960s, in response to decades of subjugation, suppres-

sion, and repressed rage, massive numbers of African Americans in major cities

388

Id. at 36:00, 36:29.

389

MARABLE, supra note 234, at 1359.

390

Social Protests, CONST.RTS.FOUND., https://www.crf-usa.org/black-history-month

/social-protests [https://perma.cc/9GDL-3NNN] (last visited Mar. 1, 2023).

391

See DONALDSON, supra note 383, at 37.

392

NICK BRYANT,THE BYSTANDER:JOHN F. KENNEDY AND THE STRUGGLE FOR BLACK

EQUALITY 393 (2006) (explaining that the photograph referenced shows a Birmingham police

dog attacking a young protester (386–87)).

393

Timothy B. Tyson, The Civil Rights Movement, in THE OXFORD COMPANION TO

AFRICAN-AMERICAN LITERATURE 147–50 (William L. Andrews et al. eds, 147, 150 1997).

394

Martin Luther King, Jr., The Other America (Apr. 14, 1967), https://www.crmvet.org

/docs/otheram.htm [https://perma.cc/CXF5-QWYP].

395

Michael Kirkpatrick, “Chickens Come Home To Roost”



Malcolm X, YOUTUBE,

https://www.youtube.com/watch?v=oD6aX3dHR2k [https://perma.cc/7S7N-5R53].

2023] LET MY PEOPLE GO,PART ONE 807

around the country stormed the streets, setting buildings ablaze, appropriating goods,

and assaulting their perceived enemies, just as their colonial predecessors did before

them in response to the Stamp Act Riots of 1765.

396

However, unlike the white riots

that had terrorized Black folk since the end of slavery, Black riots were almost always

justifiable philosophically, even if not administratively, because these uprisings

were, generally, based on legitimate concerns and historically grounded in the ideas

and ideals underlying the Declaration of Independence and the Bill of Rights, ideas

and ideals made applicable to all by the Fourteenth Amendment.

397

Furthermore,

Black riots have, for the most part, kept with the tradition of the Country’s founding

riots, a tradition perverted by a hundred years of murderous white rampages.

398

Major urban upheavals have continued since, coming at least once a decade, and

most have influenced public policy to some degree.

399

The immediate causes almost

invariably involve allegations of police brutality,

400

although the solutions are rarely

directed at urban policing.

401

The Birmingham riot of 1963 was typical. It began after members of the Ku

Klux Klan terrorist organization, in cahoots with notorious bigot Bull Connor (the

Birmingham Commissioner of Public Safety), bombed the homes of several promi-

nent African American business and civil rights leaders.

402

It was the night of May 11,

1963, and violence began with the home where Martin Luther King’s brother, A.D.

King, lived with his wife and five small children.

403

When the caravan arrived, a

uniformed police officer placed a bomb on the front porch.

404

Moments later, the

bomb exploded, shattering the front of the home to smithereens.

405

Fortunately, no

one was hurt.

406

396

The Stamp Act Controversy, U.S. HISTORY:PRE-COLUMBIAN TO THE NEW MILLENNIUM

(2020), https://www.ushistory.org/us/9b.asp [https://perma.cc/R4EM-PU6A] (last visited

Mar. 1, 2023).

397

THE DECLARATION OF INDEPENDENCE para. 1–3 (U.S. 1776); U.S. CONST. amend. XIV.

398

Id.

399

See generally TERRY ANDERSON,THE MOVEMENT AND THE SIXTIES 411–16 (1995).

400

13TH (Netflix 2020) at 1:27:07.

401

See Sarah Brady Siff, Policing the Police: A Civil Rights Story, OHIO ST.UNIV., http://

origins.osu.edu/article/policing-police-civil-rights-story [https://perma.cc/Y9ZV-HH6J] (last

visited Mar. 1, 2023).

402

See LISA KLOBUCHAR, 1963 BIRMINGHAM CHURCH BOMBING:THE KU KLUX KLAN’S

HISTORY OF TERROR 58, 60–62 (2009).

403

See id. at 58.

404

Ben Greenberg, From Delmar to Bombingham (6): Coming Forward I, HUNGRY

BLUES (Aug. 19, 2004), https://hungryblues.net/2004/08/19/delmar-to-bombingham-6-com

ing-forward-i/ [https://perma.cc/DHX2-38MG].

405

Ben Greenberg, From Delmar to Bombingham (5): The Bombing, HUNGRY BLUES

(June 28, 2004), http://hungryblues.net/2004/06/28/from-delmar-to-bombingham-5-the-bomb

ing/ [https://perma.cc/V5UU-58A6].

406

Id.

808 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

An hour later, the state-sponsored terrorists performed a bombing by lobbing a

live bomb from a moving vehicle into a room in the Black-owned Gaston Motel

where Martin Luther King, Jr. had only just recently boarded. The bomb detonated

on impact.

407

The sound of the blast reverberated all around the city.

408

When the

rumbling from the explosion reached the city jail, a chorus of police officers broke

out into a celebratory cover of “Dixie,” according to several witnesses.

409

The Black community took to the streets, transforming white businesses into

furnaces, hurling makeshift projectiles at law enforcement officials, and engaging

in hand-to-hand combat with members of the police force.

410

It was the first major

socio-political uprising that combined political protest with urban warfare, in a

decade that would be defined by this brand of urban insurgency.

411

By the end of the

decade, the Black riot had become, arguably, the most transforming and effective

means of social change since the civil war.

412

Malcolm X described the White

House’s response thus:

President Kennedy did not send troops to Alabama when dogs

were biting black babies. He waited three weeks until the situation

exploded. He then sent troops after the Negroes had demonstrated

their ability to defend themselves. In his talk with Alabama editors

Kennedy did not urge that Negroes be treated right because it is

the right thing to do. Instead, he said that if the Negroes are not

well treated the Muslims [meaning the Black Muslims] would

become a threat. He urged a change not because it is right but

because the world is watching this country. Kennedy is wrong be-

cause his motivation is wrong.

413

The Birmingham riot was succeeded by the Philadelphia and Harlem riots of

1964.

414

Much like those that follow in the 1960s and since, all three responded to

social and economic oppression brought to a head by police violence.

415

The revolving

407

DIANE MCWHORTER, CARRY ME HOME 428 (2001).

408

Id.

409

Id.

410

See generally Claude Sitton, 50 Hurt in Negro Rioting After Birmingham Blasts, N.Y.

IMES (May 13, 1963), https://archive.nytimes.com/www.nytimes.com/library/national/race

/051363race-ra.html?scp=15&sq=Birmingham&st=cse [https://perma.cc/R3Y7-7J4T].

411

See JASMIN A. YOUNG,BLACK POWER ENCYCLOPEDIA:FROM “BLACK IS BEAUTIFUL”

TO URBAN UPRISINGS 112 (2018).

412

See id.

413

Malcolm X, Message to the Grass Roots, in MALCOLM XSPEAKS (George Brietman

ed.,1994).

414

See 1964 Harlem Race Riot, N.Y. DAILY NEWS (July 14, 2022, 3:45 PM), https://www

.nydailynews.com/new-york/manhattan/ny-1964-harlem-race-riot-20220714-q6ygh6ijqvfdv

ffjq6cjbhbpme-photogallery.html [https://perma.cc/FP22-7RGQ].

415

Id.

2023] LET MY PEOPLE GO,PART ONE 809

nature of the theme suggests that the problems underlying the riots have yet to be

fundamentally redressed. On the one hand, it is clear that Black political pressure

in the form of civil disobedience, boycotts, and rioting has forced a variety of social

changes

416

: the prohibition of de jure segregation, violence as a means of voter

intimidation, and employment discrimination, to name a few.

417

Additionally, during

the 1960s, the Supreme Court added significant safeguards to the criminal justice

process that benefitted all Americans. These include Miranda rights, the right to an

attorney for indigent defendants, and expanded privacy rights.

418

On the other hand, the disproportionate incarceration of African American citi-

zens, Black men in particular, and the killing of unarmed men of color continue.

419

The political motive and the desired social effect of the Black Codes in 1865 are of

the same political design and predetermined social outcome as mass incarceration

over 150 years later.

420

Furthermore, the underlying social conditions that fueled Black

outrage during the 1960s are the same lingering conditions that stirred Black fury

in Ferguson, Missouri, in 2014.

421

The allegations of police misconduct that lifted the

top off Black rage in the Sixties are the same type of allegations that lit the fuse of

Black indignation in Baltimore in 2015 after the murder of Freddie Gray and all

around the country in 2020 with the asphyxiation of George Floyd by a Minnesota

police officer.

422

The apparent intractability of these particular problems, mass in-

carceration and police misconduct, is not insignificant. It bears directly on the ap-

plicability of the political necessity defense to forcible acts of resistance, stemming

from these same issues today.

The most tumultuous Black riot of the 1960s occurred in the Watts neighbor-

hood of Los Angeles. On August 11, 1965, law enforcement pulled 21-year-old

Marquette Frye over and placed him under arrest for reckless driving.

423

Marquette’s

stepbrother, who was a passenger in the car, walked to their nearby home to fetch

their mother, Rena Frye.

424

She hurried to the scene. At some juncture, an officer

shoved Price and struck Frye.

425

A group of angry community members formed,

after they caught wind of a rumor that police officers had abused a woman.

426

Rena

416

The Civil Rights Act of 1964: A Long Struggle for Freedom, Civil Rights Era

(1950–1963), L

IBR.CONG., https://www.loc.gov/exhibits/civil-rights-act/civil-rights-era.html

[https://perma.cc/88JH-HGDX].

417

Id.

418

See generally Miranda v. Arizona, 384 U.S. 436 (1966); Gideon v. Wainwright, 372

U.S. 335 (1963); Loving v. Virginia, 388 U.S. 1 (1967).

419

YOUNG, supra note 411, at 113.

420

Id.

421

Id.

422

Id.

423

Id.

424

Id.

425

BLACK PANTHER PARTY’S NEWSPAPER, Vol. IV, No. 2, Dec. 1969.

426

YOUNG, supra note 411, at 113.

810 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

Frye, Marquette Frye, and Marquette Frye’s brother were eventually arrested, but

the crowd continued to swell.

427

Police units attempted to subdue the protestors several times that night but were

repelled by rocks and other debris.

428

The next day Chief of Police William Parker

declared that mass protest was an insurgency and as such demanded a paramilitary

response.

429

He even equated the uprising with the Vietnam War, and the protestors

with the Viet Cong,

430

comparing rioters to “monkeys in the zoo.”

431

The police

response was predictably harsh.

432

Resistance continued. Like their predecessors in interest during the Stamp Act

Riots, protestors hurled rocks and other debris at law enforcement, looted the area,

and set buildings ablaze—targeting white-owned businesses.

433

The protestors also

engaged in hand-to-hand combat with the with police officers and attacked white

motorists who drove by yelling racial epithets.

434

Eventually, the rebellion stretched 46 square miles and involved 16,000 law en-

forcement related personnel. To crush it, the chief of police implemented a policy of

mass arrest and imposed a curfew for much of South Central Los Angeles and all of

the Watts community.

435

When it was all said and done, thirty-four people were killed,

of which twenty three had been killed by law enforcement and the National Guard.

436

The police made as many as 3,500 arrests.

437

An estimated 35,000 protestors actively

participated in the rebellion, while another 70,000 provided moral support.

438

As with all Black riots in U.S. history, the immediate events that tipped over

into the Watts riot involved police misconduct, but they only served as a spark. A

somber reality invariably lurked beneath the immediate rage: unemployment, housing

427

Id. at 113–14.

428

Id. at 114.

429

ELIZABETH HINTON,FROM THE WAR ON POVERTY TO THE WAR ON CRIME:THE

MAKING OF MASS INCARCERATION IN AMERICA 68–72 (2016).

430

Stephen Mihm, The Riots of the 1960s Led to Rise in Militarization of Police, BLOOM-

BERG (June 12, 2020), https://www.bloomberg.com/opinion/articles/2020-06-12/militariza

tion-of-police-is-tied-to-1960s-riots-and-race#xj4y7vzkg [https://perma.cc/S396-68ZE].

431

Anthony Oberschall, The Los Angeles Riot of August 1965, 15 SOCIAL PROBLEMS 324

(1968).

432

YOUNG, supra note 411.

433

Id. at 114.

434

Id.

435

HINTON, supra note 429, at 70.

436

RANDALL E. PARKER,ROUTLEDGE HANDBOOK OF MAJOR EVENTS IN ECONOMIC

HISTORY 215 (2013); Courtney Subramanaian, Detroit Recalls Five Days of Violent Unrest

a Half Century Later, BBC (July 26, 2017), https://www.bbc.com/news/world-us-canada-407

11211 [https://perma.cc/LB5V-GEXF].

437

John H. Barnhill, Watts Riots (1965), in REVOLTS,PROTESTS,DEMONSTRATIONS, AND

REBELLIONS IN AMERICAN HISTORY 966 (Steven L. Danver ed., 2011).

438

Id.

2023] LET MY PEOPLE GO,PART ONE 811

discrimination, unequal education, criminal injustice, and a general, overall cloak

of disparity cropping the Black face out of the American dream.

439

Most commentators condemned the Watts riots, as was the case with all Black

riots, as being self-destructive and without redeeming value. At least one report

charged that most of the “rioters” were criminals, although most of those arrested

were without criminal records.

440

The Black community had the opposite view.

African Americans generally understood the rebellion to be an “uprising against an

oppressive system.”

441

The year 1967 saw the outbreak of Black riots in astronomical proportions. A

whopping 164 Black riots erupted across the United States in what was dubbed the

“Long Hot Summer of 1967.”

442

Among these the most turbulent were in Newark

and Detroit. The latter was the bloodiest. The 12th Street riot in Detroit in the end

of July ended in forty three deaths, nearly 1,200 injuries, and over 7,000 arrests.

443

It began with a police raid of an after-hours establishment but was a response to

redlining, disproportionate policing of the Black community, the rhetoric of white

supremacy, and police overzealousness.

444

The Newark riots had similar causes.

445

They began when two Newark police

officers, both white, arrested and assaulted a Black cab driver.

446

Residents of a

nearby housing project witnessed the police officers dragging a Black body into the

police station that seemed lifeless to them.

447

Word quickly spread and within

moments a crowd began to form in front of the precinct.

448

A battalion of police

officers streamed from the building toting Billy clubs.

449

Protestors chucked bottles,

439

Jeanne Theoharis, Alabama on Avalon, in THE BLACK POWER MOVEMENT:RETHINK-

ING THE CIVIL RIGHTS–BLACK POWER ERA 46–49 (Peniel E. Joseph ed., 2011).

440

Art Berman, 21000 Police Wage Guerilla War; 8 p.m. Curfew Invoked, L.A. TIMES,

Aug. 15, 1965; M

CCONE COMMISSION REPORT (2 Dec. 1965).

441

Barnhill, supra note 437.

442

Bethany A. Corbin, Should I Stay or Should I Go?: The Future of Disparate Impact

Liability Under the Fair Housing Act and Implications for the Financial Services Industry,

120 P

A.ST.L.REV. 421, 428 (2015). Some of the cities include: Atlanta, Milwaukee,

Rochester, NY, Boston, New Britain, CT, Plainfield, NJ, Cincinnati, Tampa, Newark, NJ,

and Detroit. M

ALCOLM MCLAUGHLIN,THE LONG,HOT SUMMER OF 1967: URBAN REBELLION

AMERICA (2014).

443

Subramanaian, supra note 436.

444

See generally MCLAUGHLIN, supra note 442.

445

Id.

446

TOM HAYDEN,REBELLION IN NEWARK:OFFICIAL VIOLENCE AND GHETTO RESPONSE

(1967); Veronika Bondarenko, The Newark Riots Began 50 Years Ago Today—Here’s Why

They Still Matter, B

US.INSIDER (July 12, 2017), https://www.businessinsider.com/newark

-riots-anniversary-new-jersey-2017-7 [https://perma.cc/Z7H7-3U9E].

447

HAYDEN, supra note 446, at 10.

448

Id.

449

Id. at 10, 14.

812 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

bricks, and rocks at the onrushing police officers.

450

The police officers upped the

ante with shotguns and were given the order to “fire if necessary.”

451

Twenty-six

people died in the carnage that followed, including 24-year-old William Furr, who

was shot to death by police officers after he was caught pilfering a six-pack of beer

from a liquor store that had been ransacked.

452

As a result of the rebellions during the “Long Hot Summer,” then President

Lyndon B. Johnson established the Kerner Commission. He gave the commission

three charges regarding the riots to find out: “What happened? Why did it happen?

What can be done to prevent it from happening again and again?”

453

The commis-

sion essentially found that institutionalized racism was the root cause of the urban

rebellions cautioning, “[o]ur nation is moving toward two societies one black, one

white—separate and unequal.”

454

They identified racism as the cause for the paucity

of economic opportunities that fomented unrest.

455

The report castigated the federal

government for failed social, economic, and education policies.

456

It recommended

more diverse and empathetic police officers, significant investments into housing

programs, new opportunities for work, and policies aimed at eliminating residential

segregation. These recommendations went largely unheeded.

457

Roughly a month after the Kerner Report was issued, Dr. Martin Luther King

was assassinated in Memphis, Tennessee, and riots occurred en masse throughout

the country in response.

458

Major uprisings took shape in Washington D.C., Baltimore,

and Chicago. Over forty people died, more than 3,500 were injured, and upwards

of 27,000 arrested during the week-length upheaval.

459

The King Assassination

Riots, also dubbed the Holy Week Uprising, comprised the greatest wave of social

upheaval since the Civil War.

460

The traditional socio-economic deprivations fueled the uprisings, but they were

triggered by the Black community’s earned distrust of the American government.

The Black community believed that the federal government was involved in King’s

450

Id. at 10, 14.

451

Id. at 13–14.

452

HAYDEN, supra note 446, at 511; Bondarenko, supra note 446.

453

LYNDON B. JOHNSON,REMARKS UPON SIGNING ORDER ESTABLISHING THE NATIONAL

ADVISORY COMMISSION ON CIVIL DISORDERS, AT THE UNIVERSITY OF SANTA BARBARA

(July 29, 1967) (John T. Woolley & Gerhard Peters eds., 1967).

454

Id.

455

STEVEN M. GILLON,SEPARATE AND UNEQUAL:THE KERNER COMMISSION AND THE

UNRAVELING OF AMERICAN LIBERALISM 151 (2018).

456

Id. at xii, 230–38.

457

Id. at 247–66.

458

Id. at 256.

459

Lorraine Boissoneault, Martin Luther King Jr.’s Assassination Sparked Uprisings in

Cities Across America, S

MITHSONIAN MAG. (Apr. 4, 2018), https://www.smithsonianmag

.com/history/martin-luther-king-jrs-assassination-sparked-uprisings-cities-across-america

-180968665/ [https://perma.cc/LQJ7-DQE5].

460

Id.

2023] LET MY PEOPLE GO,PART ONE 813

assassination. Because King was such a proponent of non-violence and reconcilia-

tion, the irony of his violent death triggered a mindset that only violent resistance

to white supremacy translated,

461

a feeling that violence was the only language

oppression understood.

In the aftermath, President Johnson was apocalyptic: “What did you expect? I

don’t know why we’re so surprised. When you put your foot on a man’s neck and

hold him down for three hundred years, and then you let him up, what’s he going

to do? He’s going to knock your block off.”

462

The riots fast tracked the passage of

the Civil Rights Act of 1968, including the Fair Housing Act.

463

Even President Nixon, elected in 1969, whose taped comments revealed him to

be an unrepentant racist, was compelled to address Black discontent and inequality

by passing the first Affirmative Action legislation and creating various initiatives

centered around the concept of Black capitalism.

464

The curtain-call on the Sixties did not signal the end of forcible Black resistance

as a political response to perceived government tyranny under aegis of law enforce-

ment. During the late 1960s and the early 1970s, organized, paramilitary Black ac-

tivist efforts grew for a time, but covert government efforts to neutralize the leaders

and undermine the groups at the vanguard of the resistance squelched these efforts.

465

Spurred on by the “by-any-means-necessary” rhetoric of Malcolm X groups like the

Black Panther Party for Self-Defense and the Black Liberation Army began to es-

chew non-violence, which they associated with the National Association for the

Advancement of Colored People as well as Dr. Martin Luther King.

466

The Black

Panther Party, formed by Bobby Seal and Huey Newton in 1966, was created

initially to monitor unlawful police aggression in the Black neighborhoods of Oakland,

California.

467

The Panthers would essentially police the police, patrolling the com-

munity and standing guard, holding a copy of the California Penal Code in one hand

461

McKissick Says Nonviolence Has Become Dead Philosophy, N.Y. TIMES (Apr. 5,

1968), https://www.nytimes.com/1968/04/05/archives/mckissich-says-nonviolence-has-be

come-dead-philosophy.html [https://perma.cc/ASG7-3J3X].

462

Kyle Longley, Our Leaders Can Look to Lyndon Johnson to See How to Minimize

Damage Today, W

ASH.POST (May 31, 2020), https://www.washingtonpost.com/outlook

/2020/05/31/our-leaders-can-look-lyndon-johnson-see-how-minimize-damage-today/ [https://

perma.cc/5TG6-HDJZ].

463

PAUL MASON FOTSCH,WATCHING THE TRAFFIC GO BY:TRANSPORTATION AND ISO-

LATION IN URBAN AMERICA 172 (2009).

464

MEHRSA BARADARAN,THE COLOR OF MONEY:BLACK BANKS AND THE RACIAL

WEALTH GAP 186 (2017); Rosie Perper, New Report Highlights Comments Richard Nixon

Made in Favor of a Debunked Racist Theory, B

US.INSIDER (July 31, 2019), https://www

.businessinsider.com/richard-nixon-tapes-supported-theory-on-race-and-iq-2019-7 [https://

perma.cc/5CZ4-PJJY].

465

YOUNG, supra note 411.

466

Id. at 146.

467

Id.

814 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

and a shotgun in the other, when they saw police/citizen interactions that they deemed

to be suspicious.

468

In an unabashed response to the Panther’s invocation of their

right to openly carry arms under California law, staunch, conservative, card-carrying

members of the National Rifle Association enacted a law in 1967, the Mulford Act,

signed into law by then Governor Ronald Reagan, repealing the California law al-

lowing citizens to openly carry firearms in public law, thereby abridging the expanse

of the Second Amendment.

469

It had the appearance of hypocrisy to say the least.

Beginning in 1969 and stretching into the mid-1970s Panther activities focused

almost exclusively on social programs like the Free Breakfast Program for Children,

schools and after-school programs, and community health clinics.

470

Huey Newton’s

philosophy was that the people could not begin to even really think about armed

resistance, if they were hungry, sick, and unaware.

471

These social programs swelled

the ranks of the Black Panther Party to a few thousand and made them heroes in the

Black community.

472

Ironically, they stoked more apprehension among law enforce-

ment, particularly alarming Federal Bureau of Investigation (FBI) Director J. Edgar

Hoover than the Panthers’ brazen advocacy of armed revolution had earlier.

473

Now

disclosed government documents indicate that in 1969, well after the end of the

Party’s armed patrols but before it had swelled beyond a few thousand, Hoover

called the Panthers “the greatest threat to the internal security of the country.”

474

Hoover developed an extensive and highly orchestrated counterintelligence

program (COINTELPRO) to disrupt the programs of the Panther Party.

475

Measures

included, at a minimum, secret surveillance, wiretapping, police harassment, use of

agent provocateurs, and staged inflammatory correspondence.

476

Some have charged

that law enforcement, in conjunction with the FBI, orchestrated the assassination of

key party members.

477

The Panther Party had several armed standoffs with the police, at least one of

which ended with the death of a police officer and the wounding of another.

478

One

468

Id. at 571.

469

Id. at 709.

470

Id. at 106.

471

See generally BLACK PANTHER PARTY’S NEWSPAPER, Vol. IV, No. 2, Dec. 1969.

472

Robert O. Self, The Black Panther Party and the Long Civil Rights Era, 45–47, in IN

SEARCH OF THE BLACK PANTHER PARTY:NEW PERSPECTIVES ON A REVOLUTIONARY

MOVEMENT 5 (Jama Lazerow ed., 2006).

473

Id.

474

Hoover Calls Panthers Top Threat to Security,WASH.POST, July 16, 1969.

475

CHARLES EDWIN JONES,THE BLACK PANTHER PARTY (RECONSIDERED) 366 (1998).

476

Id. at 136.

477

See G. Flint Taylor, The FBI COINTELPRO Program and the Fred Hampton As-

sassination, H

UFFINGTON POST (Feb. 2, 2017), https://www.huffpost.com/entry/the-fbi-coin

telpro-progra_b_4375527 [https://perma.cc/XDE3-GAPK].

478

David Ray Papke, The Black Panther Party’s Narratives of Resistance, 18 VT.L.REV.

645 (1994); see Williams, infra note 480.

2023] LET MY PEOPLE GO,PART ONE 815

standoff in 1967 ended with police capitulation, after several Panthers refused to

relinquish their weapons while reading out loud key provisions from the California

Penal Code.

479

However, a confrontation eight months later, on October 28, 1967,

ended in violence. Huey Newton and another Panther member were returning home

from a late-night event when a notoriously racist cop, John Frey, pulled them over.

480

At some point, backup arrived, and Newton alighted from the vehicle.

481

What hap-

pened next has been the subject of great dispute.

482

But this we know: shots were

fired.

483

Newton was struck in the stomach.

484

Frey was killed.

485

And the other officer

suffered gunshot wounds but survived.

486

Newton was charged with murder and

after several appeals was eventually acquitted.

487

Two years later, the Panthers were at the center of what some consider to be

amongst the biggest shootouts in American history.

488

On the morning of December 9,

1969, 200 Los Angeles police officers, including several members of the newly

formed Special Weapons and Tactics unit, S.W.A.T. (which many charge was cre-

ated to undermine Black resistance), surrounded a building located at 41st and

Central in Los Angeles, where there were six members at the party’s southern

California headquarters.

489

For upwards of four hours, a hail of gunfire volleyed back

and forth between law enforcement and the Panthers barricaded inside; the Panthers

were fortunate and suffered no casualties.

490

The Panthers have probably been the most relevant group since the Revolutionary

War to invoke the right to rebel, a right that pervaded the Revolutionary War rhet-

oric of the founding fathers, a right recently rediscovered in the Second Amendment.

The party’s 10-point program included the statement, “[t]he Second Amendment to

the Constitution of the United States gives a right to bear arms,” and the document

explicitly tied the party to the country’s founders.

491

In fact, if one were to redact the

word “Black” from the 10th point of the 10-point program, it would sound almost

exactly like a colonial demand to the British Crown:

479

Adam Winkler, The Secret History of Guns, ATLANTIC (Sept. 2011), https://www.theat

lantic.com/magazine/archive/2011/09/the-secret-history-of-guns/308608/ [https://perma.cc

/BP2S-BWN7].

480

Yohuru R. Williams, In the Name of the Law: The 1967 Shooting of Huey Newton and

Law Enforcement’s Permissive Environment, 61 N

EGRO HIST.BULL. 6, 13–14 (1998).

481

Id.

482

Id.

483

Id.

484

Id.

485

Id.

486

Id.

487

Id.

488

See RADLEY BALKO,RISE OF THE WARRIOR COP:THE MILITARIZATION OF AMERICA’S

POLICE FORCES 76–80 (2013).

489

Id.

490

Id. at 78.

491

HUEY PNEWTON ET AL., REVOLUTIONARY SUICIDE 117 (1973).

816 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

As our major political objective, [we want] a United

Nations–supervised plebiscite to be held throughout the Black

colony in which only Black colonial subjects will be allowed to

participate, for the purpose of determining the will of Black

people as to their nation destiny.

492

The Panthers hijacked en toto an entire passage from the Declaration of Inde-

pendence, quoting:

We hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain un-

alienable 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 Gov-

ernment becomes destructive of these ends, it is the Right of

the People to alter or to abolish it, and to institute new Gov-

ernment, laying its foundation on such principles and organiz-

ing its powers in such form, as to them shall seem most likely to

effect their Safety and Happiness . . .

Prudence, indeed, will dictate that Governments long estab-

lished should not be changed for light and transient causes;

and accordingly all experience hath shewn that mankind are

more disposed to suffer, while evils are sufferable than to right

themselves by abolishing the forms to which they are accus-

tomed. But when a long train of abuses and usurpations,

pursuing invariably the same Object evinces a design to

reduce them under absolute Despotism, it is their right, it is

their duty, to throw off such Government, and to provide

new Guards for their future security.

493

The 1970s, like the decade that preceded it and the decades that would follow,

also hosted urban rebellions. Systemic issues related to the criminal justice system

and the African American community’s feelings of tainted liberty continued. It had

to appear to Black folks that they were on permanent carousel of injustice, fighting

to remedy one entrenched injustice only to confront another at the very next stop.

Tempers flared. And the uprisings continued.

In 1980, the obligatory riot per decade erupted after another incident of police

misconduct. This time it began in Miami after four Dade County police officers were

492

Id. at 118.

493

Id. at 118–19 (quoting THE DECLARATION OF INDEPENDENCE (U.S. 1776)).

2023] LET MY PEOPLE GO,PART ONE 817

acquitted after murdering Arthur McDuffie, a salesman and former marine, during a

traffic stop; McDuffie had a series of unpaid parking tickets.

494

According to the pros-

ecutor, the officers split McDuffie’s head “like an egg.”

495

The officers tried to cover

up their misconduct by running over McDuffie’s motorcycle with their patrol vehicle

to make it seem as if McDuffie perished as a result of a motorcycle accident.

496

When the jury announced the acquittal, 5,000 Miamians took to the streets in protest.

It quickly morphed into a riot that led to the death of 18 people, nearly 350, including

women and children, injured, and nearly 600 arrests.

497

The officers whose acquittals

had sparked the riot were reinstated to their positions at the police department.

498

Arguably, the most spectacular urban uprising in American history materialized

in Los Angeles, California in 1992.

499

This riot followed the acquittal of four officers

responsible for the brutal beating of motorist Rodney King.

500

The riot lasted an

astounding six days, a time period more indicative of a small-scale war than a riot,

and ended with more than fifty deaths, over 2,000 injuries, and astonishing 12,000

arrests.

501

7,000 fires were also reported.

502

The next decade, in 2001, a series of upheavals unfolded near downtown

Cincinnati after patrol officer Stephen Roach shot unarmed 19-year-old Timothy

Thomas to death during a traffic stop.

503

Roach claimed that Thomas was reaching

for a gun, but a subsequent police investigation dispelled this assertion.

504

The

incident happened amid boiling tension between the community and the police

department growing out of several issues, including police officers killing fifteen

African-Americans within fifteen years.

505

The upheaval lasted four nights during

which protestors employed a tactic that is characteristic of urban rebellions: debris

artillery and rock warfare.

506

Rioters hurled rocks and other street debris at law

enforcement, who countered with tear gas, bean bag bullets, and pepper spray.

507

all, there were 800 arrests. Roach was tried and acquitted of negligent homicide.

508

494

F. CLAYTON COBB,THE PATHS ICHOSE:THE STORIES OF A BROTHA FROM THE SOUTH

SIDE OF ATLANTA (2018).

495

Id.

496

Id.

497

Id.

498

Id.

499

See generally REBECCA RISSMAN,RODNEY KING AND THE L.A. RIOTS (2014).

500

Id. at 48–59.

501

Id. at 73.

502

Id.

503

ROBERT A. CROPF,AMERICAN PUBLIC ADMINISTRATION:PUBLIC SERVICE FOR THE

21ST CENTURY 194 (2015).

504

WALTER C. RUCKER &JAMES N. UPTON,1 ENCYCLOPEDIA OF AMERICAN RACE RIOTS

109 (2006).

505

CROPF, supra note 503, at 194.

506

See id.

507

RUCKER &UPTON, supra note 504, at 109.

508

Id. at 110.

818 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

The last decade has been no more immune to Black riots catalyzed by allega-

tions of police misconduct than the preceding six decades, indicating a problem that

is intransigent, to say the least. On August 9, 2014, for reasons that remain in con-

tention, Darren Wilson of the Ferguson, Missouri, police department fired several

shots at 18-year-old Michael Brown while Brown was in headlong flight away from

him.

509

Several shots ripped through Brown’s flesh ending his young life.

510

Com-

munity members held a memorial for Brown the next day.

511

The memorial morphed

into an uprising, after a police officer allowed his dog to urinate on a makeshift

monument of flowers and candles that aggrieved community members had painstak-

ingly formed on the spot where Brown lay down his final burden.

512

The Ferguson unrest was unique in that the rebellion occurred in waves. The

first, sparked by the shooting of Michael Brown, lasted from August 9, 2014, to

August 21, 2014, when the National Guard was withdrawn from the area.

513

The

second wave came upon the news that Officer Wilson was not indicted.

514

It lasted

from November 24, 2014 to December 2, 2014.

515

The last wave, occurring on the

1-year anniversary of the shooting, raged from August 9, 2015, to August 11,

2015.

516

In all, 321 members of the public were arrested and charged, and six

officers injured.

517

There was a period of interim rage between the second wave and another riot

in Baltimore. From December of 2014 to April of 2015, the spirit of rebellion

ignited by the Michael Brown killing, though still seething beneath the surface, took

509

See MICHAEL GLINT,FERGUSON RIOTS:50FACTS YOU SHOULD KNOW ABOUT THE

SHOOTING OF MICHAEL BROWN ¶ 48 (2014).

510

See generally id.

511

See id. ¶ 6.

512

Id. ¶ 7.

513

Michael Brown’s Shooting and Its Immediate Aftermath in Ferguson, N.Y. TIMES

(Aug. 25, 2014), https://www.nytimes.com/interactive/2014/08/12/us/13police-shooting-of

-black-teenager-michael-brown.html#/#time348_10369 [https://perma.cc/5PJY-BH6Y].

514

Monica Davey & Julie Bosman, Protests Flare After Ferguson Police Officer Is Not

Indicted, N.Y. T

IMES (Nov. 24, 2014), https://www.nytimes.com/2014/11/25/us/ferguson

-darren-wilson-shooting-michael-brown-grand-jury.html [https://perma.cc/R479-HMCF].

515

See Chris Branch, Looking Ahead After Ferguson Protests: What Happens Next?,

UFFINGTON POST (Dec. 2, 2014), https://www.huffpost.com/entry/ferguson-protests-end

-goal_n_6256292 [https://perma.cc/4HRQ-Y7XE].

516

See Elliot C. McLaughlin et al., Ferguson Protestors Arrested as County Declares

State of Emergency, CNN (August 11, 2015, 5:51 PM), https://www.cnn.com/2015/08/10/us

/ferguson-protests/ [https://perma.cc/Y4GY-SSJH].

517

More than 50 Arrested at Ferguson Police Station on “Moral Monday” Other Events

Elsewhere, S

T.LOUIS POST-DISPATCH (Oct. 13, 2014), https://www.stltoday.com/news/local

/crime-and-courts/more-than-50-arrested-at-ferguson-police-station-on-moral-monday-other

-events-elsewhere/article_c1752132-9731-542e-8525-1885fae7fd10.html [https://perma.cc

/PDZ5-RVAW].

2023] LET MY PEOPLE GO,PART ONE 819

on a decidedly less turbulent character. Rage found expression in discussion groups,

social media campaigns and community organizing. These efforts were aimed, for

the most part, at bringing pressure to bear on elected officials, public figures, and

private influencers with hidden hands wrapped around the means of social change

or around the necks of those who controlled the means.

However, on April 12, 2015, Baltimore Police officers arrested 25-year-old

Freddie Gray.

518

They handcuffed Gray’s hands behind his back and threw him into

the back of a police van, intentionally failing to secure him.

519

They then took him

on a punitive excursion known as a “rough ride.”

520

When it ended, he was in a coma,

his spinal cord was ripped, and his vocal box was shattered.

521

Gray died a week

later.

522

When the police department was unable to adequately explain the cause of

Gray’s death, incensed protestors took to the streets.

523

The rebellion resulted in at

least 250 arrests and 20 police casualties.

524

The most recent wave of urban uprisings began on May 25, 2020, after Officer

Derek Chauvin of the Minnesota police department strangled 46-year-old George

Floyd to death.

525

The officer had a history of questionable uses of force but was

retained on the police force nonetheless.

526

By the time Chauvin encountered Floyd,

he amassed seventeen citizen complaints, fifteen of which the internal investigation

bureau had deemed baseless and two warranting only a slap on the wrist.

527

Chauvin

was an active participant in at least three police-involved shootings, in one of which

he and five other officers fatally shot a civilian.

528

Nonetheless, at the time he

asphyxiated Floyd, he supervised two rookie officers who had received their law

enforcement licenses the prior August.

529

Chauvin killed Floyd by mashing his knee into his neck, which he then inten-

tionally reinforced with the full weight of his body, for the better part of ten

minutes.

530

The most disturbing part of the incident was Floyd’s constant cries for

518

YOUNG, supra note 411, at 113.

519

Id.

520

Id.

521

Id.

522

Id.

523

Id. at 300.

524

Id. at 300.

525

Brittany Shammas et al., Murder Charges Filed Against All Four Officers in George

Floyd’s Death as Protests Against Biased Policing Continue,W

ASH.POST (July 3, 2020,

11:45 PM), https://www.washingtonpost.com/nation/2020/06/03/george-floyd-police-officers

-charges [https://perma.cc/28ZW-RKKH].

526

See id.

527

See id.

528

Id.

529

Id.

530

Id.

820 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

help.

531

The entire incident was caught on camera, so heart-wrenching videos of

Floyd begging for his life with the meager breaths he had left, flooded the internet:

“I can’t breathe,” “please, please, please,” and after these cries failed, he called on

his deceased mother for intervention.

532

And when no form of help, from above,

below, or around was forthcoming, he died.

533

The next day unrest broke out in Minneapolis and quickly spread like wildfire

across the nation, and, atypically, across the entire western world. The vast majority

of the unrest took on a more peaceful tact, but initially, following escalating skir-

mishes between law enforcement and protestors, the outrage was so volcanic, so

visceral, it seemed like entire cities might burn. In some cities around the country,

there was widespread rioting and looting.

534

National Guard units were activated in

a whopping thirty-one states across the country.

535

More than eighty localities

around the country imposed curfews on its citizens.

536

The President of the United

States, in a nearly unprecedented move, federalized the national guard and attempted

to unleash the power of U.S. Military on the civilian population in the cities, a

specter of the exact type of action that had frightened this country into existence.

537

The arrest rate was astronomical.

538

An average of over sixty-five protestors

were arrested each hour, for each hour in the day.

539

By the end of the seventh day,

over 11,000 protestors had been jailed.

540

There were twenty-one deaths around the

country, eighteen of which were from gunshots.

541

531

Id.

532

George Floyd’s Sister Says Firing Officers Is Not Enough: ‘They Murdered My Brother’,

NBC P

HILA. (May 28, 2020, 2:01 AM), https://www.nbcphiladelphia.com/news/national-in

ternational/george-floyds-sister-says-firing-officers-is-not-enough-they-murdered-my-brother

/2409047/ [https://perma.cc/M7WG-2DL4].

533

Id.

534

Scott Pham, Police Arrested More Than 11,000 People at Protests Across the US,

UZZFEED NEWS (June 2, 2020, 10:32 PM), https://www.buzzfeednews.com/article/scott

pham/floyd-protests-number-of-police-arrests [https://perma.cc/R6V4-PPQ9].

535

Jack Arnholz, U.S. Protests Map Shows Where Curfews and National Guard Are

Active, ABC N

EWS (June 4, 2020, 5:30 PM), https://abcnews.go.com/US/locations-george

-floyd-protests-curfews-national-guard-deployments/story?id=70997568 [https://perma.cc

/BTK5-MTBB].

536

Id.

537

Thomas Gibbons-Neff et al., Aggressive Tactics by National Guard, Ordered to Appease

Trump, Wounded the Military, Too, N.Y. T

IMES (June 10, 2020), https://www.nytimes.com

/2020/06/10/us/politics/national-guard-protests.html [https://perma.cc/J9N9-GDDK].

538

See Pham, supra note 534.

539

See id.

540

Id.

541

Louis Beckett, At Least 25 Americans Were Killed During Protests and Political

Unrest in 2020, G

UARDIAN (2020), https://www.theguardian.com/world/2020/oct/31/ameri

cans-killed-protests-political-unrest-acled [https://perma.cc/H8QZ-VPA8].

2023] LET MY PEOPLE GO,PART ONE 821

George Floyd’s niece, Brooke Williams, wise beyond her years, speaking at his

funeral, summed up the mood of the people and the lived experience of twenty

generations of Black folk when she preached: “Someone said make America great

again. But when has America ever been great?”

542

Her words poured out over those

in attendance and into the hearts of those connected through the airwaves, sweeping

in their current the tortured hope of twenty generations of Black folk who, if there

is, in fact, a world beyond this one, emoted in unison, “amen.”

543

While civil disobedience and forcible acts of Black resistance set off by the

unarmed killing of African-Americans have, in the past, sparked debate and pulled

at the levers of social change, in some instances even sparking positive government

action, e.g., Lyndon Johnson’s great society programs and Richard Nixon’s Black

Capitalism initiative, policing and police culture have remained virtually impregna-

ble to positive change.

544

The George Floyd rebellion so far has been different or,

perhaps, in essence, the climax of, what can be seen as a continuous wave of

rebellion that has ebbed and flowed, erupting at least once a decade since the

1960s.

545

As of the publishing of this Article, reform measures were enacted in cities

and states across the country by virtually all related government bodies, state

legislatures, governors, attorney generals, city councils, and police departments

themselves.

546

Even Congress has gotten in on the act. The U.S. Senate proposed the

George Floyd Justice in Policing Act of 2020.

547

It includes a national standard for

the use of force, outlaws the use of chokeholds, and prohibits pretextual stops based

on race.

548

Furthermore, the George Floyd riots and protests ended in precipitating

an officer’s conviction for the first time since the Black riot appeared in force during

the Sixties. Derick Chauvin was convicted of second and third-degree murder and

second-degree manslaughter.

549

542

Kelley Taylor Hayes, ‘He’s Going to Change the World’: Family Members Give Tearful

Eulogies for George Floyd in Houston Service, F

OX 5 (June 9, 2020), https://www.fox5ny

.com/news/hes-going-to-change-the-world-family-members-give-tearful-eulogies-for-george

-floyd-in-houston-service [https://perma.cc/BV83-L52K].

543

ABC News, George Floyd’s Niece Delivers Passionate Speech at His Funeral,

OUTUBE (2020), https://www.youtube.com/watch?v=hoUFyOCsuB8 [https://perma.cc

/Q56K-PVNQ].

544

See generally BARADARAN, supra note 464.

545

Danielle Wallace & Michael Ruiz, Hundreds, Including Al Sharpton, Eric Garner’s

Mom, Mourn at George Floyd Memorial in Minneapolis, F

OX NEWS (June 4, 2020, 5:09

PM), https://www.foxnews.com/us/george-floyd-memorial-minneapolis-al-sharpton-eric

-garner-mother [https://perma.cc/2UQ9-WHYG].

546

State Policing Since George Floyd’s Murder, BRENNAN CTR. FOR JUST. (2021), https://

www.brennancenter.org/our-work/research-reports/state-policing-reforms-george-floyds

-murder [https://perma.cc/SNX5-VKT6].

547

See H.R. 7120, 116th Cong. (2020).

548

Id.

549

Erin Donaghue, Ex-cop Derek Chauvin Convicted of All Charges in George Floyd’s

822 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

C. The Slave Rebellion–Black Riot Continuum and the Political Necessity Defense

The continuity of the themes underlying African American acts of rebellion over

the past three hundred years is striking. The Black community, it seems, has been

in a perpetual struggle for equal rights from the state and decreased aggression from

law enforcement. The continuity, or rather intractability, of these themes, has unique

implications for the application of the political necessity defense in the context of

riots and other manifestations of forcible resistance. On a purely doctrinal level, this

continuity impacts at least two elements of the political necessity defense: (1) the

lack of legal alternatives and the causal connection between these acts of forcible

resistance and (2) the change of the relevant laws or policies. These cases will meet

the lack of legal alternatives standard if the seeming intractability of the problem of

police hostility and violence justify the use of force. The causality question concerns

whether riots and other upheavals have the potential to change laws.

The relationship between slave rebellions and Black riots also has interesting

implications. Are both methods of resistance responsive to the same types of depri-

vations of freedom? Counterintuitively, Black riots, in at least some ways, are re-

sponses to even greater deprivations of freedom than slave rebellions. Slave rebellions

responded to the condition of enslavement, a lifelong seizure. Black riots, on the

other hand, are, for the most part, responsive to the ultimate seizure, death. That is,

many police shootings lead to death, which is the ultimate deprivation of freedom.

The relationship between slave rebellions and mass incarceration also has

interesting implications. The deprivations caused by each are similar, although the

justifications differ, in some cases, substantially (enslaved people had absolutely no

hand in bringing about their condition whereas many low-level offenders, while

treated grossly unfairly, have nonetheless offended).

550

Both deprivations involve

encroachment on individual liberty for extended periods of time. And, for a while

at least, convict leasing and other enslavement contraptions sanctioned by law, com-

pelled free labor.

551

Even many systems of incarceration today effectively compel

labor so cheap that it is only a step removed from forced labor.

552

If the relationships between liberty deprivations like slavery, police killings, and

mass incarceration, on the one hand, and responses to the deprivations like slave

rebellions and Black riots are real, this raises the question: Are the type of responses

justified by the one also the types of responses justified by the other? In other words,

if the slave rebellions of the nineteenth century were justifiable, are the Black riots

Death, CBS NEWS (Apr. 21, 2021), https://www.cbsnews.com/live-updates/derek-chauvin

-trial-george-floyd-death-guilty-three-counts-4-20-21/ [https://perma.cc/L3MH-9XV2].

550

See generally DOUGLASS BLACKMON,SLAVERY BY ANOTHER NAME (2008).

551

See id. at 4.

552

See MICHELE ALEXANDER,THE NEW JIM CROW 219–20 (2010); Arthur Delaney, The

‘Modern Day Slavery’ of Prison Labor Really Does Have a Link to Slavery, H

UFFINGTON

POST (Aug. 28, 2018), https://www.huffpost.com/entry/prison-strike-modern-day-slavery_n

_5b857777e4b0511db3d21da8 [https://perma.cc/3PXN-65G6].

2023] LET MY PEOPLE GO,PART ONE 823

of the twenty-first century and, even more interestingly, any future rebellions or acts

of resistance born from other age-old oppressions as well?

There is also the broader issue of whether there is a Constitutional right to riot.

Consistent with the concepts of the right to rebel and the violent veto power of the

Second Amendment discussed in Section III below, it is arguable that there is a con-

stitutional right to riot.

553

As explained in detail in Fired Up: The Right To Riot

(forthcoming), a legitimate argument can be made that the Bill of Rights contains

a right to riot, emanating from the Second Amendment right to rebel as well as from

principles underlying the First Amendment and the Declaration of Independence.

554

Using the methodology the Supreme Court uses to determine whether a constitu-

tional right is a fundamental right, it would be difficult to argue that rioting is not

an integral part of the “history and traditions” of this nation.

555

For example, the riot

as an instrument for social change is at the very heart of the founding of this coun-

try. The Stamp Act Riots of 1765 and the riots precipitating the Boston Massacre

were the opening salvos of the American Revolution.

556

The same can be said of the

Black riots of the Sixties and the revolutionary changes in American political,

economic, and social policy that these riots helped to generate.

Before the questions I have raised can be resolved, questions tackled at length

in other installments of this Article series, it must first be resolved whether any acts

of force are justified in response to group suppression, the focus of this Article.

Slim, if any, case law exists concerning the applicability of the political neces-

sity defense to crimes of violence. However, the common law’s treatment of crimes

of violence committed in response to non-human threats is instructive. At common

law, the necessity defense was applicable, in some instances, to violent crimes but

never to charges of murder.

557

The Model Penal Code, on the other hand, allows for

the necessity defense even when the crime is murder.

558

Given that courts are reluctant to allow the political necessity defense where

mere civil disobedience is involved, it is unlikely that most courts would recognize

it where the crime is one of violence, and certainly not when the crime is murder,

without significant constitutional prodding. The social harm caused by violent crimes

would almost invariably be greater than the harm caused by acts of civil disobedi-

ence, which usually offend only relatively minor laws and produce relatively soft

social consequences.

559

However, if there indeed exists a Second Amendment

553

See Kindaka Sanders, Let My People Go, Part Two: The Second Amendment Political

Necessity Defense and the Storming of Capital Hill, 31 W

M.&MARY BILL RTS. J. (forth-

coming May 2023).

554

See id.

555

See, e.g., Washington v. Glucksberg, 521 U.S. 702, 710 (1997).

556

See ROBERT J. ALLISON,THE AMERICAN REVOLUTION:AVERY SHORT INTRODUCTION

10 (2015).

557

JOSHUA DRESSLER,UNDERSTANDING CRIMINAL LAW 275 (2018).

558

Id. at 277.

559

Id. at 277–82.

824 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 31:765

political necessity defense, judicial opposition to it, whether deployed to justify non-

violent crimes or crimes of violence, is largely unsustainable.

III. I

NTRODUCTION TO PART TWO

Let My People Go, Part Two: The Second Amendment Political Necessity

Defense and the Storming of Capital Hill argues that all forms of purposeful law-

lessness, direct or indirect, forcible, or peaceable, are protected under the Second

Amendment. That is, the Second Amendment embraces its own political necessity

defense. The history of the Second Amendment, as well as the Supreme Court’s two

most influential Second Amendment cases, District of Columbia v. Heller and

McDonald v. Chicago, provide the proof. This Article explores this proof in detail.

Finally, this Article applies the Second Amendment political necessity defense to

the storming of the Capitol on January 6, 2021.