Why aren’t militias shut down?
Groups persist despite being illegal in all states
WASHINGTON – “People are getting injured, and our job is to protect this business. And part of my job also is to protect people. If someone is hurt, I’m running into harm’s way. That’s why I have my rifle.”
So said Kyle Rittenhouse as he stood in front of a boarded-up building in Kenosha, Wisconsin, in August.
The 17-year-old, police said, shot three people that night – two of them fatally – as heavily armed civilians who showed up to patrol the streets of Kenosha clashed with demonstrators protesting the police shooting of a Black man. Rittenhouse is now facing homicide charges.
Rittenhouse’s comments to the Daily Caller in August appear to suggest a self-assigned role of protecting people. That’s illegal in Wisconsin, where the state constitution forbids armed civilians from arming themselves to assume the role of law enforcement.
In fact, all 50 states prohibit such private, military-like activities.
Still, militant groups from far-right fringes have proliferated, energized by President Donald Trump, experts say.
As Trump campaigned, he repeatedly claimed, without evidence, that a massive voter fraud conspiracy was underway and called on his supporters “to go into the polls and watch very carefully.” Some groups promised to do so.
The Southern Poverty Law Center reports that in the U.S., there were about 180 “militias” – defined by the law center as anti-government groups that engage in military-style training – active in 2019.
According to the FBI: “Many militia extremists view themselves as protecting the U.S. Constitution, other U.S. laws, or their own individual liberties. They believe that the Constitution grants citizens the power to take back the federal government by force of violence if they feel it’s necessary.”
Legal experts say that belief is wrong.
The constitutions of 48 states require the military to be under the authority of the government. This means citizens do not have the authority to organize in a military-style fashion. Twenty-nine states also don’t allow private militarylike activities such as parading or conducting drills in public using firearms.
“When self-designated private militia organizations attend public rallies purportedly to keep the peace or protect the rights of protesters or counterprotesters, they likely fall within this type of prohibition, particularly if bearing arms and wearing military-style uniforms,” according to Georgetown University’s Institution for Constitutional Advocacy and Protection, or ICAP.
In 25 states, unauthorized military activities are considered a crime. In Colorado, for example, instructing people how to use or make firearms or explosive devices with the intent of causing civil disorder is a class 5 felony.
In 17 states, laws prohibit self-appointed peacekeepers from dressing up in uniforms and assuming the role of law enforcement.
To legally justify their existence, these groups have seized on the Second Amendment, which says: “A well regulated Militia, being necessary to the se
curity of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
But the phrase “well regulated Militia” in this case refers to one that’s sanctioned and regulated by the government, like the National Guard, and not to privately organized paramilitary groups, said Mary Mccord, acting assistant attorney general for the Justice Department’s National Security Division and legal director of Georgetown University’s ICAP.
Still, this phrase has been misinterpreted, particularly in states that don’t explicitly ban or criminalize paramilitary activities, said Amy Cooter, a Vanderbilt University sociology professor who has studied militant groups.
A lot of groups see themselves as “supplementary to the military,” Cooter said. “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.”
The Supreme Court also has been clear thta the Second Amendment does not protect paramilitary activities, Mccord said.
In 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to possess a firearm for self-defense. But the court’s opinion, authored by the late conservative Associate Justice Antonin Scalia, also said the Second Amendment does not guarantee “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Scalia also reiterated a Supreme Court ruling from more than a century earlier: that the Second Amendment does not prevent states from banning paramilitary organizations.
For the most part, it’s because local and state governments have not enforced the laws, experts say.
“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,” said Brian Levin, director of the Center for the Study of Hate & Extremism at California State University-san Bernardino. “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.”
In many places, sheriffs reach out to paramilitary groups for help with law enforcement activities, such as search and rescue efforts, giving them a de facto legal status, Cooter said.
“The way these folks sometimes ensconced themselves, they do so in a manner where they’re trying to cultivate positive relations with law enforcement,” Levin said.
In some places, local law enforcement may simply choose not to go after heavily armed and well-trained groups, said Daryl Johnson, a former Department of Homeland Security analyst who studied right-wing extremists.
“For the most part, most militia groups are defensive in nature. They just want to protect their families and communities,” so local governments have simply allowed them to exist, he said. But Johnson said other groups have proved more brazen and offensive in their actions, particularly in the midst of COVID-19 restrictions that many saw as an infringement on their freedoms.