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 Second 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 tumultuous 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 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.