Lauren Boebert
Rep. Lauren Boebert Credit: Gage Skidmore

“Congressman Massie,” former Secretary of State John Kerry tweeted last March, “has tested positive for being an asshole.”

This view of Rep. Thomas Massie (R-KY) is shared across the political spectrum. Massie’s habit of clogging up the House with objections to measures that otherwise would otherwise pass by unanimous consent has made him unpopular with his colleagues. His objection to a coronavirus relief bill last spring required members of the House who were sheltering from the virus to return to the Capitol in person—where, needless to say, they were exposed to fellow members without masks.

This unpopularity may partially explain Massie’s apparent eagerness to arm himself on the House floor. Earlier this month, after Speaker Nancy Pelosi placed metal detectors at the doors to the chamber, Massie pushed through the detectors. He says, by cracky, the Constitution lets him do that. Stopping armed members from entering the chamber, he told the New York Post, violates “the part [of the Constitution] that says you can’t be stopped coming or going, you can’t be detained coming or going from the House. It just says that, very specifically.”

Newly elected Rep. Lauren Boebert (R-CO), half of the House QAnon caucus, also insists on entering the chamber strapped. “The metal detector policy for the House floor is unnecessary, unconstitutional, and endangers members,” she said. Rep. Louis Gohmert (R-TX), a leader of the established crazy caucus, also refused the detector. “Article 1, Section 6 of the U.S. Constitution contains specific language prohibiting Members of Congress from being impeded on the way to a session of the House or to a vote,” Gohmert said.

The idea that the police cannot stop—or arrest—Members of Congress on their way to or from the chamber is widely held. It is based on Article I, Section 6, Clause 1, which provides that members “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.”

Pretty strong protection, huh? Take that, flatfoot! Alas, the pistol packers are reading the clause backward. In fact, the language is the Framers’ roundabout way of saying that members are liable to arrest on any criminal charge. The “privilege” clause protects them only from arrest in civil lawsuits. In the 1908 case of a House member arrested for land fraud, the Supreme Court examined legal authorities stretching from Elizabethan England to Justice Joseph Story, and explained that the “exception” from immunity from arrest—“treason, felony and breach of the peace”—in fact, means any criminal law: “[t]he privilege of immunity extends to civil arrests only and does not apply to any indictable offense.”

The common-law does provide a privilege from civil arrest, not only for legislators but for anyone attending court. As a federal district judge pointed out this year, it “existed as much for the benefit of the courts as it did for the benefit of the individual.” That’s because it would be hard to try a civil case if parties, or witnesses, couldn’t go to the courtroom or were jailed as they entered. Those wrongly arrested by sheriffs on their way to court had to seek a “writ of privilege,” which required the jailer to free the prisoner.

What does this mean for our well-regulated House members? Just this: if they are carrying an unlicensed firearm on their way to the Capitol or on their way to their D.C. home, they can be arrested by D.C. Metropolitan Police. If they try to push their way through a metal detector, they can be arrested by the U.S. Capitol Police. Guns can be banned on the House floor; indeed, anyone who studies the history of violence between members over the years would want them to be. And a federal criminal statute, 40 U.S.C.5104, makes it an offense to carry an unauthorized firearm into the Capitol. The statute does provide an exemption for members of Congress “in the lawful discharge of official duties”—but is carrying a weapon into a prohibited area really a “lawful discharge of official duties”? I confess that I would love to see Louie Gohmert or Tom Massie in handcuffs as part of a test case. And, for that matter, some members—I won’t mention Josh Hawley or Ted Cruz—might want to remember that it’s a crime to “conspire to overthrow, put down, or to destroy by force the Government of the United States . . , or by force to seize, take, or possess any property of the United States.”

So: bad news for the far-right armed caucus and others. And in fact, the news is actually worse than that. Civil detention today is a relatively rare mechanism. As the Library of Congress Annotated Constitution explains, this renders Clause is “practically obsolete.”

But there is one area where civil detention persists.

The recent opinion I quoted above is from an ongoing case in the federal Southern District of New York. Called Doe v. Immigration and Customs Enforcement, it is a challenge to the ICE practice of lurking around state courthouses and arresting allegedly undocumented people who are coming to appear as parties and witnesses, pay fines, or apply for domestic violence restraining orders. The plaintiffs argue that the common-law privilege from arrest should bar those arrests. That’s because detention and deportation of the undocumented usually do not involve a criminal arrest: It is one of the few examples remaining of civil arrest. Most of the undocumented are not charged with crimes but detained pending deportation proceedings.

Four years ago, Christopher N. Lasch, a professor at the University of Denver’s Sturm College of Law, explained the concept in a Yale Law Journal Forum article: “the common-law privilege was typically used to address arrests commencing civil litigation. As immigration proceedings are civil, the privilege maps well onto courthouse arrests for immigration violations.”

The Doe case is ongoing; thus, Representative Massie, a federal court may soon decide that you and your fellow gun-slinging legislators can be arrested but that undocumented immigrants can’t.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.