From the outset in the 1990s, “Patriot” militia groups have claimed a constitutional birthright from the Second Amendment’s language regarding the necessity of “a well-regulated militia”—and when pressed on how they are “well-regulated,” contend that their regular practices and drilling comprise all the regulation required by the Constitution. This argument has been broadly accepted by state and local authorities, as well as media institutions.
However, as McCord explains, “there is no federal or state authority for groups of individuals to form their own private armies.”:
The “well regulated Militia” referenced in the Second Amendment has since before the founding meant regulated by the government, not private actors, as early militia laws in the colonies made very clear. The constitutions of 48 states memorialized this understanding, providing that in all cases the military must be strictly subordinate to civilian governmental authority. And the U.S. Constitution further solidified these institutional relationships, giving Congress the authority “[t]o provide for calling forth the Militia” and “[t]o provide for organizing, arming, and disciplining, the Militia,” while reserving the appointment of officers and training to the states. Congress then exercised its authority to create the state National Guard system while also authorizing the states to form additional state militias as necessary. Over the years, states have exercised their authority by enacting legislation establishing the state militias and making them answerable to the governor as commander in chief. But there is simply no authority—under federal or state law—for private groups to form their own militias.
McCord and her colleagues at Georgetown Law’s Institute for Constitutional Advocacy and Protection have compiled a list of the different kinds of state laws that already prohibit such activity. All but two states (Georgia and New York) have constitutional provisions that require all military bodies to be governed by civil authorities. Some 28 states (including Georgia and New York) also prohibit the formation of private military organizations without being authorized by the state government. Another 25 states criminalize paramilitary activity organized with the intention of furthering civil disorder. And 17 states prohibit ordinary citizens from wearing either real or imitative military and police uniforms.
A fact sheet accompanying the study explains that the term “militia” in the Constitution (as well as state laws) refers to “all able-bodied residents between certain ages who may be called forth by the government when there is a specific need,” and private individuals lack any kind of legal authority to “activate themselves for militia.” Moreover, multiple Supreme Court rulings—including the 2008 D.C. v. Heller ruling, which found an inherent right to self-defense in the Second Amendment—have routinely found that the Constitution “does not prevent the prohibition of private paramilitary organizations.”
"What we're seeing in the kinds of militias that we see today, these sort of self-appointed militias that have no relationship with the state government whatsoever, no authority to speak for the state or for the people of the state, these are not the kinds of militias that are referenced by the Second Amendment," Adam Winkler, a University of California at Los Angeles law professor, told U.S. News and World Report.
McCord explains that this ignorance is a product of the "mythology" around the Second Amendment. "I think the NRA and other Second Amendment absolutists have been remarkably successful over the last several decades at sort of just convincing people that the Second Amendment protects private militia activity, especially in open carry states," she told USNWR.
The same mythology includes the notion that “citizen militias” are informal adjuncts to the military and law enforcement.
Many paramilitary outfits, particularly the Oath Keepers, see themselves as "supplementary to the military," sociologist Amy Cooter of Vanderbilt University told USA Today. "Most of them see themselves as doing exactly what's required of them. … From the militia's perspective, as long as they have some sort of overarching training, some structure, that's sufficient to maintain that legal structure."
"I think in many states, there's not only a lack of political will, but we also have so-called 'constitutional sheriffs' who refused to enforce the laws," Brian Levin, director of the Center for the Study of Hate & Extremism at California State University-San Bernardino, told USA Today. "I think some law enforcement executives are sympathetic (to these groups' causes). I think most are just not very aware of militias that are operating within their jurisdictions, particularly in rural areas, and also of what the law is."
The fact that all of these multiple state laws comprise a kind of legal hodgepodge that often creates inconsistent enforcement—or in this case, consistent non-enforcement—forms a strong argument for creating a federal statute that would erase the problem. But as McCord explains, the most powerful reason to do so arises from the fact that these militias now regularly cross state lines and join forces from around the nation, often while engaging in threatening or violent activity. And that’s more than enough reason for Congress to step in:
The list goes on and on. Militia members from states as far away as Washington traveled to Charlottesville to join with others who used their paramilitary tactics and assault-style rifles to interpose themselves between protesters and counterprotesters. Members of an accelerationist militia trained in Georgia, built a machine gun in Delaware, and planned to start a civil war in Virginia to hasten their effort to create a white ethno-state in the Pacific Northwest. Militia members from multiple states conducted planning in Ohio and trained in Michigan to kidnap Michigan Governor Gretchen Whitmer because of public health measures she ordered in response to the COVID-19 pandemic. Militia members from Texas, Florida, Ohio, Alabama, Georgia, Virginia, and Arizona trained for, traveled to, and assaulted the U.S. Capitol, while also manning an arsenal of weapons for a Quick Reaction Force just outside Washington, D.C. The threat involves interstate activity, and the response requires the superior resources and capacity of the federal government.
The federal statute that McCord proposes would not simply cover criminal enforcement but also civil-court mechanisms, enabling people injured by paramilitary activity to hold these groups liable and to enjoin them from future activity, while federal authorities could also obtain injunctions or restraining orders as preventive relief as well.
Its wording, as she envisions it, would prohibit armed people acting in conjunction with an unauthorized paramilitary group “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.”
The bottom line, as we’ve remarked previously, of all such “citizen militias”—whether flag-waving “Oath Keepers,” gun-brandishing “3 Percenters,” or border-watching “Minutemen,” as well as every locally organized “Patriot” group—is that they are vigilantes who take the law into their own hands and yet are accountable to exactly no one. Every single one of these groups likes to present themselves to public view as civic-minded defenders of their communities, but the harsh reality is that they are toxic, violent presences that cause their communities to fall apart, and their democratic institutions to crumble.
The same is true of the nation as a whole. As McCord concludes: “Congress should act now to defuse the powder keg of violence these militias present.”