The Growing Danger of Illegal White "Militias"

Today's announcement that the F.B.I. had thwarted a plot by people associated with an extremist white militia group in Michigan to kidnap Democrat Governor Gretchen Whitmer - some of their communications suggested assassinating her - and overthrow that state's government underscores the threat posed by these illegal groups.  Yes, illegal groups.  The Second Amendment of the U.S. Constitution (one of the Founders' grave errors, in my view) gives ZERO legal authority for the formation of such groups and, indeed, under the laws of a majority of the states they are flat out illegal.  For example, the only militia authorized under the Code of Virginia is the National Guard which is under the command of the Governor.   A column in the New York Times by a constitutional law professor lays out (i) the danger posed by these vigilante groups, and (ii) the reality that they are 100% illegal and need to be closed down by state and federal authorities notwithstanding Donald Trump's encouragement of such extremists to take the law into their own hands. Here are column highlights:

In the swirls of disinformation that now pollute our political discourse, one is particularly dangerous: that private militias are constitutionally protected.

Although these vigilante groups often cite the Second Amendment’s “well regulated militia” for their authority, history and Supreme Court precedent make clear that the phrase was not intended to — and does not — authorize private militias outside of government control.

Indeed, these armed groups have no authority to call themselves forth into militia service; the Second Amendment does not protect such activity; and all 50 states prohibit it.

The danger of these groups was brought home on Thursday with the announcement that the F.B.I. had thwarted a plot by people associated with an extremist group in Michigan to kidnap Gov. Gretchen Whitmer and overthrow the government.

Court documents say that the group discussed trying the governor for treason and murdering “tyrants.” Six men now face federal kidnapping conspiracy charges, but unauthorized militia activity continues in Michigan and elsewhere.

The unnamed militia involved in the kidnapping plot is part of a growing number of private paramilitary groups mobilizing across the country, wholly outside of lawful authority or governmental accountability.

Sometimes they want to fight against the perceived tyranny of the states, as when they stormed the Capitol in Lansing, Mich., this spring to demand the end of the governor’s pandemic shutdown order, egged on by President Trump’s tweets to “LIBERATE MICHIGAN!”

Sometimes they want to usurp the functions of law enforcement, as they’ve done in Kenosha, Wis., and elsewhere, purporting to “protect” property during racial justice protests, often in response to false rumors about leftist violence, rumors stoked by the president’s calls to designate “antifa” as a terrorist organization.

Most alarmingly, some of them are planning their own poll-watching and openly training in preparation for the post-election period.

Whatever their stated purpose, their conduct is unlawful and not constitutionally protected. . . . . “well regulated” meant that the militias were trained, armed and controlled by the state. Indeed, 48 states have provisions in their constitutions that explicitly require the militia to be strictly subordinate to the civil authority.

Likewise, state constitutions and laws then and now generally name the governor as the commander in chief of its armed forces — and only the governor or a designee has the power to call forth the able-bodied residents for militia service.

The federal and state government control of the militia has also been confirmed by the Supreme Court. In 1886, the court upheld the constitutionality of a state criminal law that made it unlawful for “any body of men” outside state or federal governmental authority to “associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of the state.”

This criminal statute and others were enacted after the Civil War and are on the books of 29 states. The Supreme Court said without question that states had authority to control and regulate military bodies and associations as “necessary to the public peace, safety and good order.”

The court’s 1886 decision was reaffirmed in 2008 in Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller. That case established that the Second Amendment protects an individual right to bear arms for self-defense, but “does not prevent the prohibition of private paramilitary organizations.” Although there are many gray areas about Second Amendment rights, this is not one of them.

Twenty-five states prohibit teaching, demonstrating or practicing in the use of firearms or “techniques” capable of causing injury or death for use during a civil disorder. Eighteen states prohibit either the false assumption of the duties of public officials, including law-enforcement officials, or the wearing of uniforms similar to military uniforms.

All these laws point to a single conclusion: There is no right in any state for groups of individuals to arm themselves and organize either to oppose or augment the government.

Now, more than ever, state and local officials must enforce these statutes. In battleground states like Pennsylvania, Michigan and Wisconsin, as well as other hotbeds of militia activity like Oregon, Idaho, Virginia and Texas, they must ready themselves for unlawful private militias showing up at the polls and on the streets during ballot counting and beyond.

Those groups, like the Three Percenters, Oath Keepers and others that claim to be “patriots” but answer to their own interpretation of the Constitution, are likely to hear [Trump's] the president’s unsupported claims about election fraud as their license to deploy to the polls to “protect” or “patrol” the vote.

State and local leaders, in both parties, must denounce armed militia activity, whether from the right or the left.

These leaders may also have to take swift action to protect public safety and preserve constitutional rights. But the law is on their side — private armed militias find no support in the U.S. or state constitutions or in American history. They must not be tolerated in our society.