Ask The Trace: Are Militias Legal?

The Second Amendment of the U.S. Constitution necessitates “a well regulated Militia” for the security of a free state, and Americans have been parsing the language ever since.  

Here at The Trace, particularly after the January 6 insurrection, we’ve gotten a lot of questions about the scope and the limits of militias. Some of our recent coverage addresses this, but a reader’s recent inquiry about what, exactly, a militia is prompted us to take a closer look.

What is a militia?

The term means different things to different people. To some, these groups are an intimidating and unnecessary show of force. To a certain subset of gun rights advocates in the U.S. who note their existence pre-dates the Constitution, militias are the physical embodiment of the right to keep and bear arms. This discrepancy is why the ultimate interpretation of the militia rests on the law.

Groups that track militia activity look to certain defining characteristics to differentiate them from other armed groups. Militias operate independently of established governments. Members are united by shared political beliefs, follow a hierarchical command structure, don military-style uniforms and tactical gear, and conduct armed drills. 

The first militia regiments — antecedents to the National Guard — were organized in Massachusetts in 1636. “The colonies established militias because they didn’t want to have standing armies,” explains Mary McCord, a former acting assistant attorney general at the Department of Justice’s national security division. 

Militias were not meant to be deployed against a sitting government, but in defense of the state, “reportable to the governor, trained and armed by the governor,” said McCord, who is now the executive director at Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP), which advises government officials on the enforcement of anti-militia laws.

But as gun rights hardliners argue that paramilitary activity is constitutionally protected, and camouflaged, rifle-toting people joined protests at state capitols in opposition to pandemic-related lockdowns, the legal interpretation of that constitutional right is increasingly coming into question.

How many militias are there in the U.S.?

The Armed Conflict Location & Event Data Project (ACLED), which compiles data on armed protests from news outlets, social media, and human rights organizations, has identified 80 militias operating in the United States today. The vast majority are far-right groups, like the Oath Keepers and the Three Percenters. 

ACLED identified 633 armed demonstrations in the United States between January 2020 and April 1, 2022. Members of far-right militia groups and what it describes as militant social movements, like the Proud Boys and “Boogaloo” adherents, were active in 37 percent of those demonstrations, according to our analysis of ACLED data.

Are modern-day ‘militias’ anti-government?

Many of them are. In the early 1990s, the fade-out of Ku Klux Klan activity gave way to the modern militia movement, a distinctly anti-government, far-right paramilitary outgrowth. Born in Michigan, the groups numbered more than 800 at their peak in 1996, and were largely a reaction to federal gun control measures like the 1993 Brady background check bill, and botched enforcement actions by the federal government, like the raids on armed compounds in Ruby Ridge, Idaho, and Waco, Texas. (Those raids are what also prompted the National Rifle Association to dub federal agents “jack-booted thugs,” cementing the group’s insurrectionist view of the Second Amendment.)

Back then, armed paramilitary groups were united in opposition to the federal government. The difference now, McCord says, is that they’re facing off with their fellow citizens.

“The danger from militias comes from usurping law enforcement’s role and imposing their will on other people,” McCord said. “It’s illegal to project authority over others without their consent. It infringes on people’s civil rights.” That includes the right to free assembly. After the January 6 assault on the U.S. Capitol, we examined how gun-wielding protesters can intimidate unarmed demonstrators into changing their plans — or not showing up at all. In those cases, the Second Amendment is being used to suppress the First.

Two months after the 2017 Unite the Right rally in Charlottesville, Virginia, ICAP filed suit on behalf of the city of Charlottesville arguing that all the armed militia groups that appeared there constituted paramilitary organizations, and claiming that they violated three different Virginia laws that specifically bar unregulated militias. In 2018, commanders of five paramilitary groups — Pennsylvania Light Foot, the New York Light Foot Militia, the III% People’s Militia of Maryland, American Warrior Revolution, and American Freedom Keepers — agreed never to return to the city. (McCord is currently working on a similar case in Albuquerque, New Mexico, where members of the New Mexico Civil Guard were patrolling a June 2020 rally when a demonstrator was shot.)

“[Militia members] are coming out in public having an intimidating and coercive impact on citizens trying to go about their lives, exercise their freedom of speech, exercise their freedom to petition their government — anytime they are are surrounding a capitol or going into a capitol and taking up space with their guns,” McCord said. That includes voting. Anti-militia laws can also be used to prohibit armed intimidation at the polls.

In recent years militias have done more than demonstrate. They’ve provided security for far-right lawmakers. They’ve also self-deployed to the U.S.-Mexico border, where “they’re just detaining people,” McCord said, even though they lack the legal authority to do so. Militia members also patrol social justice protests, which has led to incidents of violence — and unease among local residents.

When Idaho legislators moved to repeal the state’s 94-year-old anti-militia provision last year, residents implored them to resist the move. At a February hearing, they described a “weeklong occupation” by armed groups hunting Antifa protesters in the aftermath of the May 2020 police killing of George Floyd. A Coeur d’Alene resident said motorcycle gangs drank at bars with AR-15s on the table, and “at least 300 or 400 armed men and women” were “marching up and down [the streets] … simply to intimidate. We were terrified.” Another resident told the committee, “I can think of no time in our history when this law is more needed than today.” Despite the pushback, the bill was passed by the House, but it failed to get a Senate vote before the legislative session adjourned. McCord said the opposition was remarkable in red-state Idaho. “Most everyone who testified started with “I’m a gun owner, but.’ Many were ‘I’m a gun owner and a veteran’ or ‘I’m a gun owner and the son of a veteran.’” 

Are militias constitutionally protected?

No, McCord says. The Supreme Court ruled in 1886 in Presser v. Illinois that the Second Amendment does not prevent states from banning private paramilitary organizations, a finding that was restated in District of Columbia v. Heller, the 2008 decision that established an individual’s right to bear arms for self-defense.

“‘Militia’ has never meant ‘private militia answerable to themselves,’” McCord said. “It always meant well-regulated by the state. People focus on the Second Amendment while ignoring Congress’s Article One powers to organize and train the militia, and call forth the militia,” she said. In other words, a private militia that deploys itself, without the permission of the state or federal government, is illegal.

How is militia activity regulated?

Militias are allowed to exist as private groups, so long as they don’t take their activities into the public realm — or plan to do so. Militias cross the line into illegal activity “if they are training on private property in order to engage in unlawful activity in public,” she said. That includes training to assume law enforcement functions, attack government buildings, interfere with official government proceedings, or harm lawmakers. “That training could violate state and federal criminal laws and presents a public safety threat,” McCord said.

There is no federal law that regulates militia groups. But all 50 states have some kind of anti-paramilitary law on the books. After the 2017 Unite the Right rally in Charlottesville, McCord and her 10-person team at ICAP examined state constitutions and statutes and identified four types of laws that prosecutors can use to restrict paramilitary activity.

The first is a constitutional provision that requires military activity to be governed by civil authorities. This subordination clause exists in 48 states; only Georgia and New York do not have one. The second is a statute that prohibits private militia activity without the authorization of a state government, which 29 states have on the books. The third is a statute held by 25 states, including Michigan, New Mexico, Oregon, and Pennsylvania, that criminalizes certain paramilitary activity, including public drills and demonstrating the use of firearms, or techniques capable of causing death. And the fourth is a prohibition on falsely assuming the uniforms or functions of law enforcement. Seventeen states, including Arizona, Alabama, and Florida, ban either the assumption of police duties by civilians or the wearing of uniforms similar to military uniforms.

Most states have more than one of these laws, giving prosecutors several possible avenues for criminal charges, with penalties ranging from fines to prison time.

If militia activity is illegal, why isn’t it prosecuted more?

Essentially, ignorance of the laws, a lack of political will, and fear of angering constituents, McCord says.

It’s up to local prosecutors to press charges against militia members, and many don’t know what laws are available to them, she said. Anti-militia prosecutions have little benefit, and prosecutors are relatively green when it comes to building such cases. In her two decades as a federal prosecutor, McCord herself focused on violent crime, property crime, and drugs. “How many people honestly really know what’s in their state constitution? In fact, until Charlottesville, I couldn’t have told you [which anti-militia provision] was in the Virginia constitution.”

Anti-paramilitary bans, which half of the states have, were used to sue the Ku Klux Klan in the 1980s to prevent them from opening training camps. But after successive legal victories, “the laws just kind of fell into disuse and people forgot about them.” And militia crackdowns are not exactly the “bread and butter” of local law enforcement, McCord says. Resource-strapped sheriffs and district attorneys aren’t going to devote resources to such cases when they’re needed to tackle more serious crimes. 

In some communities, particularly in rural, gun-friendly states, bringing anti-militia prosecutions can be politically risky for sheriffs and district attorneys, who are elected by voters. “Oftentimes, the areas where militia activity is the most common happen to be pretty anti-government,” McCord said. “If you’re an elected official, and a prosecution is going to potentially piss off a whole bunch of the people who elect you, it’s just not going to be your high priority.”

Given the reluctance of prosecutors to regulate paramilitary activity, civil litigation might be a better option, McCord said. To that end, she’s working with House Democrat Jamie Raskin to craft a federal law that would make it illegal for armed militias to patrol, drill, engage in paramilitary techniques, or assume law enforcement or security functions. U.S. Attorney’s offices would be responsible for enforcing the law, which would also include a civil enforcement option, so private citizens can sue.

https://www.thetrace.org/2022/04/militias-legal-armed-demonstration/