3

18 USC 2383:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The terms "rebellion" and "insurrection" are not defined. Is there federal judicial precedent that sheds light on the meaning of these words as used in this statute? More generally, what elements or circumstances are necessary for an act to qualify as an act of rebellion or insurrection?

Edit: The supposed duplicate question (What prevents the DOJ from charging Democrats in Congress under U.S. Code § 2383?) is different, and its answer does not answer this question. It explains that a particular incident is not rebellion or insurrection, but it does not enumerate the elements that must be present for an act to constitute rebellion or insurrection. In other words, it describes in part what rebellion and insurrection are not, but it does not describe what they are.

6
  • @phoog what do you mean? You asked how are these terms defined. The accepted answer explains that "interpreting the meaning of these terms arises in litigating insurance claims" and gives relevant case precedent. The question is not the same. But as the reason for closing says "this question already has answers" in the linked question. The answer to that question is broad enough that it answers your question, too.
    – grovkin
    Jan 7, 2021 at 1:12
  • 1
    @grovkin the answer gives links to resources that might lead to a definition of the terms, but it does not actually define the terms. An answer that says "go look over there for the answer" is no answer.
    – phoog
    Jan 7, 2021 at 1:20
  • @phoog actually it is the answer if a precise definition does not in fact exist. The references are there only to support this by showing that the case law has relied on the plain-English meaning of the word and has rejected giving a precise definition. And the answer itself starts out by asserting this... and then demonstrates it by referring to the cases. That is the courts have rejected opportunities to create the kind of litmus test that you are asking about.
    – grovkin
    Jan 7, 2021 at 1:25
  • @grovkin no, it doesn't say that at all. It says that the terms "have their ordinary meanings," but it does not say what those meanings are. It only says that Congressional excess and illegal acts by a public official don't count. Also, this isn't a question about insurance coverage, it's a question about criminal law. Different tests could well exist (or not) in the two instances.
    – phoog
    Jan 7, 2021 at 1:59
  • "have their ordinary meaning" and "case law has relied on the plain-English meaning" are synonymous. And both this question, the linked question, and the answer address in the context of USC 2383. So the answer already address it in the context of criminal law.
    – grovkin
    Jan 7, 2021 at 8:17

1 Answer 1

1

A Congressional Research article provides insight into the meaning of insurrection in the context of US federal law.

The U.S. Constitution does not define insurrection or rebellion. Article 1, Section 8, clause 15, of the U.S. Constitution does empower Congress to call forth the militia “to suppress Insurrection.” It seems to follow that Congress has the authority to define insurrection for that purpose, which it has arguably done through enactment of the Insurrection Act. Part of that Act authorizes the President to call up the militia and armed forces in the event of “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings. . . .” [. . .] Another part of the Insurrection Act, enacted approximately three years after the Fourteenth Amendment [. . .], authorizes the use of armed forces in cases where insurrectionists “oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws.”

It seems likely that courts would consider these expressions as intent of Congress when hearing cases.

An addition reference is from a Lawfare blog,

One grand jury instruction on criminal insurrection, for instance, approved by a federal circuit court in Illinois in 1894, easily encompasses the events of that day:

Insurrection is a rising against civil or political authority,-- the open and active opposition of a number of persons to the execution of law in a city or state. … It is not necessary that there should be bloodshed; it is not necessary that its dimensions should be so portentous as to insure probable success, to constitute an insurrection. It is necessary, however, that the rising should be in opposition to the execution of the laws of the United States, and should be so formidable as for the time being to defy the authority of the United States.

4
  • So, armed conflict intending to overthrow the government is fine, as long as you don't impede the judiciary or the enforcement of laws in the process?
    – nick012000
    Dec 27, 2022 at 2:45
  • @nick012000 - Armed conflict intending to overthrow the government is treason.
    – Rick Smith
    Dec 27, 2022 at 2:50
  • No, you need to side with an enemy state during am officially-declared war for that. It's the only crime mentioned in the US Constitution.
    – nick012000
    Dec 27, 2022 at 4:34
  • @nick012000 - In 18 U.S. Code § 2381 - Treason, Whoever, owing allegiance to the United States, levies war against them . . . includes a US citizen attempting to overthrow the government. A further explanation is provided at Article III, Section 3, Clause 1 where armed conflict ("the actual waging of war") is a necessary component of the charge.
    – Rick Smith
    Dec 27, 2022 at 13:14

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .