Most militias consider themselves legally legitimate organizations, although all 50 states prohibit private paramilitary activities. [25] [26] [27] Others subscribe to the theory of «insurrection,» which describes the right of the body politic to rebel against the established government in the face of tyranny. (In the 1951 case of Dennis v. United States, the U.S. Supreme Court rejected the insurrection theory, stating that as long as the government provides for free elections and juries, no «political self-defense» can be conducted.) [28] These groups are not inherently illegal. But they become targets for law enforcement because they engage in other illegal activities such as gun offenses, tax evasion or threats of violence. The Southern Poverty Law Center estimates that there are 276 anti-government militias nationwide, and while mere militia membership is not illegal, some actions (such as an armed takeover of a federal building) may be illegal. A 1999 U.S. Department of Justice analysis of the potential militia threat over the millennium recognized that the vast majority of militias were reactive (not proactive) and posed no threat. [14] In 2001, the militia movement appeared to be in decline, peaking in 1996 with 858 groups. [15] With the global financial crisis after 2007 and the election of Barack Obama as President of the United States in 2008, militia activities experienced a resurgence. [16] [17] [18] Militias have been involved in several high-profile clashes recently, including the Bundy clash in 2014 and the occupation of the Malheur National Wildlife Refuge in 2016.
The Southern Poverty Law Center reports that there were about 180 active «militias» in the United States in 2019 — defined by the Law Center as anti-government groups in military formation. As the fact sheets explain, the U.S. Constitution and state laws use the term «militia» to refer to all able-bodied residents of certain age groups who can be called by the government when there is a special need; However, individuals do not have the legal authority to engage in militia service outside the jurisdiction of the federal or state government. The fact sheets also state that the Second Amendment does not protect the activity of private militias and refer to U.S. Supreme Court decisions in 1886 and 2008 that state that the Second Amendment «does not preclude the prohibition of private paramilitary organizations.» And of course, we saw it with the 17-year-old. And, you know, some people said, well, he wasn`t really part of that militia. He was, you know, a disciple. But I think it only illustrates the danger of private militias – because it encourages others, followers, to join them.
These self-proclaimed security forces said they were in Kenosha to protect a gas station. But these untrained and irresponsible civilian militias are breaking the law, according to Mary McCord. She is the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, and she is with us now. WASHINGTON, Sept. 22, 2020 /PRNewswire/ — In anticipation of possible illegal militias intimidating voters at the ballot box, Georgetown Law`s Institute for Constitutional Advocacy and Protection (ICAP) has released fact sheets on illegal militias for all 50 states. The fact sheets contain important information about legal and illegal militias, state laws prohibiting private militias and paramilitary activities, and what to do when citizens see groups of armed people near polling stations. A proposal to strengthen the U.S. government`s ability to counter violent extremism from militias was presented by Professor Mary McCord of Georgetown University School of Law. McCord is the former Assistant Attorney General of the National Security Division of the U.S. Department of Justice. In a congressional statement about the Jan.
6 attack, McCord put forward a proposal that would allow for a civil injunction (i.e., allowing the government to file a civil lawsuit against militia members) and the forfeiture of assets for paramilitary militia activities. The prohibited behaviors could resemble state laws that prohibit private groups from breaking through or parading with guns in public, falsely performing law enforcement functions while performing police duties, or wearing U.S. military uniforms or similar imitations. Given the preponderance of the evidence against those involved in such prohibited activities, a judge could make an order prohibiting them from continuing to engage in this behaviour. Confiscation laws allow the government to seize assets used as instruments of illegal activities. However, this concern should not interfere with the enforcement of state laws and, with sufficient factual findings from Congress, federal laws could be enacted within Congress` explicit or implied powers under the Constitution. For example, intelligence on interstate communications between militia members or the transportation of weapons across state borders would provide a sufficient basis for congressional action under the trade clause. In fact, the latest indictment against the Oath Keepers alleged that the group was using messaging apps and transporting weapons across state borders to prepare for the Jan. 6 attack on the U.S.
Capitol and impede the legal transfer of presidential power. In June 2021, the Biden administration released the nation`s first national strategy to combat domestic terrorism. The strategy contains some important recommendations, but an additional step that seems urgent is a plan to address the threat posed by violent extremist militias. They are members of private paramilitary organizations who have no legal authority. In recent years, private militias have become more visible and courageous. Social media and access to powerful weapons have allowed these groups to band together to create a deadly risk to the U.S. government and public safety. To reduce the threat of domestic terrorism by violent extremist militias, two important steps are needed: first, the enforcement of existing State laws that restrict militia activities; Second, enact new federal legislation that allows federal law enforcement agencies to neutralize this serious threat.