America Has a Militia Problem

Militias don’t exist in any meaningful way in any developed country other than the United States. It’s time for Congress to step up and restore law and order to America

Image by Clker-Free-Vector-Images from Pixabay

Another week, another militia-affiliated murderer in court, this time over the drive-by shooting of Federal Protection Services officer Pat Underwood in California by a member of the Boogaloo movement. “Cowards like you fear true bravery,” the officer’s wife told the killer as he was sentenced. “(Pat) will live on through his family and friends. … You no longer deserve your freedom.”

At the same time in Idaho, where the guy who pointed a rifle at federal officers in one of the two Bundy standoffs is proudly leveraging his infamy into a run for the state senate, the governor is considering repealing that state’s law against any “parade in public with firearms in any city or town of this state.”

In just the past two weeks an Illinois militia member has pleaded guilty to bombing an abortion clinic; a second Michigan militia member pleaded guilty to attempting to kidnap and murder Governor Gretchen Whitmer; and a California militia group is on the verge of taking control of an entire county.

In Pennsylvania a militia “commander” was indicted for illegal weapons possession, including “machine guns, armor-piercing ammunition and bombs. He also had maps of airports.” Three weeks ago 11 militia members from six states were indicted for the crime of seditious conspiracy, the US government asserting they helped lead an attempt to seize the US Capitol on January 6th.

America has a militia problem.

After the Civil War, every state in the union (and every one since) decided there are some behaviors that are sufficiently harmful to American society that we don’t allow them in public.

Exposing yourself. Brawling. Disturbing the peace. Pretending to be the police. Playing soldier in ways that go beyond theater (in other words, Confederate battle reenactments are fine but practicing with live ammunition to overthrow the government is not).

Forty-eight of the fifty states’ constitutions explicitly prohibit people carrying weapons to perform police or military duties unless they are under the employ and/or control of the civilian authorities in the state.

All fifty states outlaw militia cosplay in anticipation of insurrection, intimidating voters, or street brawls. 

Militias that engage or even prepare to engage in “civil disorder” are, in a word, illegal in every state in the USA. Thus, “unlawful paramilitary activity” is a crime nationwide.

The language in the Oregon Constitution, for example, (which is nearly identical to those in 47 other states) unambiguously says in its Article I, § 27:

“[T]he Military shall be kept in strict subordination to the civil power.”

Further, Oregon law — again in nearly identical language to the other 49 states — explicitly says:

(1) A person commits the crime of unlawful paramilitary activity if the person:

(a)   Exhibits, displays or demonstrates to another person the use, application or making of any firearm, explosive or incendiary device or any technique capable of causing injury or death to persons and intends or knows that such firearm, explosive or incendiary device or technique will be unlawfully employed for use in a civil disorder; or

(b)  Assembles with one or more other persons for the purpose of training with, practicing with or being instructed in the use of any firearm, explosive or incendiary device or technique capable of causing injury or death to persons with the intent to unlawfully employ such firearm, explosive or incendiary device or technique in a civil disorder.

The law adds:

(3) Unlawful paramilitary activity is a Class C felony.

There is not a single state in this country that allows people to dress up and carry weapons to play soldier with the goal of performing law enforcement duties or engaging in street brawls. 

(You can find the laws for your state at the Institute for Constitutional Advocacy and Protection of the Georgetown Law school.)

America has a long history of these laws being ignored. 

Our most famous militia group, which emerged long before today’s crop of wannabee Delta Ops, was the Ku Klux Klan.  The Klan terrorized Black and Brown people and Jews for generations, before the modern-day militias emerged in the 1990s.

The Clinton Administration taking on David Koresh and his assault weapon cult in 1993 triggered both Tim McVeigh and today’s militia movement.  At first it was just fringe groups convinced the US government — and, particularly, the Democratic Party — had become an arm of an international “New World Order.” 

Theories about exactly what that New World Order was and how it would affect people varied from group to group, although it usually featured wealthy Jews and people of color “replacing” (as Tucker would say) white people.

Donald Trump’s presidency added a new dimension to the movement, bringing white Evangelical Christians, woman-hating/fearing men, and armed white supremacists into the movement, all eager to explain how unAmerican were Muslims and Jews, Femanazis, and the browning of America.

The Bundys backing down the Obama administration twice in two years gave the movement a huge shot in the arm, as Amanda Marcotte documents at Salon, mainstreaming conspiracy- and social media-driven armed militia fervor within the GOP.  

Now neofascist Republicans like Thomas Massie in the House and Josh Hawley in the Senate are running for re-election with pictures of themselves with assault weapons or fist-saluting the militias involved in trying to murder Vice President Mike Pence and Speaker Nancy Pelosi.

Into this scrum steps the Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP) and Visiting Professor of Law at Georgetown University Law Center, Mary McCord. 

A former Acting Assistant Attorney General for National Security and Principal Deputy Assistant Attorney General for National Security as well as Chief of the Criminal Division and Deputy Chief of the Appellate Division of the DC District, McCord knows a thing or two about militias, the threats they present, and the law.

Three weeks ago McCord published an important article at Just Security about how the lack of state law enforcement of anti-militia laws means that a federal law is necessary to prohibit “unauthorized militia activity.”

Professor McCord notes:

“Increasingly since the 2017 Unite the Right rally in Charlottesville, Virginia, heavily armed, unauthorized private militias have used shows of force and paramilitary tactics to intimidate and coerce. They have risen up against governmental authorities by storming statehouses in opposition to pandemic-related public health measures, terrorizing lawmakers and constituents seeking to participate in the democratic process.

“They have usurped legitimate law enforcement functions by providing unauthorized and unrequested armed security at public demonstrations, intimidating others from exercising their freedoms of expression and peaceful assembly. And as the allegations in the seditious conspiracy indictment of 11 members of the Oath Keepers make plain, they have recruited, trained, planned, and used violence in an attempt to prevent the peaceful transfer of power from one president to the next.”

She points out that 48 states constitution’s and all 50 states’ laws expressly prohibit unauthorized militia activity, and the Supreme Court has determined these private militias have no claim whatsoever to the Second Amendment, which refers only to state-authorized “well regulated” militias run by elected or appointed civilian authorities in the states. 

Even the US Constitution, McCord notes, reserves “the appointment of officers and training to the states.”

But states don’t enforce these laws, in part because some militia-infiltrated law enforcement agencies refuse, and in part because state-level politicians are intimidated and frightened by armed men threatening them.  In Idaho, the state’s Lt. Governor has even surrendered and thrown in with them.

Thus, McCord argues, federal legislation is necessary.

Congress has, she notes, “the power under the Commerce Clause as well as the Militia Clauses and Necessary and Proper Clause to enact such legislation”:

“It should bar people—while armed and in conjunction with an unauthorized paramilitary organization—from publicly patrolling, drilling, or engaging in paramilitary techniques; interfering with government proceedings; asserting authority over others without legal right; intimidating others in the exercise of their constitutional rights; or training to do any of these acts.”

Such prohibitions, she notes, would not violate the individual right to bear arms the Supreme Court discovered in the Constitution with their Heller decision, and wouldn’t run afoul of the First Amendment’s right to free speech and peaceable assembly.

She suggests the law would not only provide for criminal sanctions, but also give average citizens who’ve been intimidated, threatened or harmed by unauthorized militias the means to sue them for damages. 

When we look around the world, one of the signs that a country is in deep trouble is the appearance of armed militias. 

Usually, they pop up in countries that are so undeveloped or poor the government can’t provide protection to its citizens, or in places where drug traffickers, criminal oligarchs or revolutionary ideologues are trying to take over. 

Such militias don’t exist in any meaningful way in any developed country other than the United States, and they’ve grown here significantly since they got Trump’s embrace. 

It’s time for Congress — which itself suffered an assault organized in part by armed militia groups — to step up and restore law and order to America.