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Editor’s note: This article is the first in a series from leading experts with practical solutions to democratic backsliding, polarization, and political violence.

A year after the January 6 attack on the U.S. Capitol, the United States remains politically and culturally polarized. Recent polling suggests alarming numbers of Americans believe that violence against the government may be justified. Many factors have led to this, requiring many different solutions, but one of the most dangerous developments has been the proliferation of unauthorized paramilitary organizations. Such organizations have been a significant contributor to the growing perception that political violence is acceptable, if not inevitable. The growth of these groups is also a result of these public sentiments, creating a vicious cycle. The threat posed by unauthorized paramilitary organizations—frequently referred to as “militias”—is an identifiable problem that can be addressed at least in part through federal legislation. Now is the time for Congress to enact a federal prohibition on unauthorized paramilitary activity.

The Growing Threats to Public Safety

A federal law would serve important public safety and national security purposes.  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.

The ideology of unauthorized militias does not stack up on only one side of the political spectrum. In Charlottesville, the efforts of heavily armed private militias to protect the white nationalists protesting the removal of confederate monuments were met with heavily armed private militia members seeking to protect those of opposing views. In Louisville, Kentucky, unauthorized heavily armed rival militias faced off against each other during demonstrations for racial justice after the police shooting of Breonna Taylor, with police donning riot gear to keep them separate. Although the protesters and counterprotesters demonstrating in Charlottesville, Louisville, and at the U.S. Capitol have a right to make their views known, they do not have a right to deploy in public as private armies, arrogating to themselves when and under what circumstances to use lethal force.

Within Reach of the Law

Notwithstanding the mythology promoted by unauthorized militia organizations, 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.

Nor does the Second Amendment protect private militias. The Supreme Court has been clear since the 1886 case of Presser v. Illinois that the government must be able to prohibit private paramilitary organizations as “necessary to the public peace, safety, and good order.” Upholding an Illinois statute barring groups of men from associating together as military organizations or drilling or parading with arms in public, the Court said it was clear that the statute did “not infringe the right of the people to keep and bear arms,” and, indeed, that “[m]ilitary organization and military drill and parade under arms … are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers.” The 1886 decision has maintained its validity to this day with its central premise reiterated in the Court’s 2008 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protects an individual right to bear arms for self-defense. The Court pointedly contrasted that result with private militia groups, restating that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.”

State Law Prohibitions

Indeed, all 50 states have prohibitions on private paramilitary activity. They do this through the strict subordination clauses in their constitutions; anti-militia statutes like the one upheld in Presser, which remain on the books in 29 states; and anti-paramilitary-activity laws in 25 states that generally bar teaching, demonstrating, instructing, training, and practicing in the use of firearms, explosives, or techniques capable of causing injury or death for use during or in furtherance of civil disorder. Some states also prohibit falsely assuming the functions of law enforcement or wearing military uniforms or uniforms confusingly similar to military uniforms.

The Need for Federal Legislation

With this robust body of state law, one might ask why a federal law is necessary. Simply put, with rare exceptions, these state laws are not used. There are likely many reasons for this.

First, state officials responsible for public safety may be unaware of provisions of their state constitutions that subordinate all military organizations to the civilian governmental authority. These provisions often date to the founding of the states and have received very little attention. Moreover, even if state officials are aware that their state constitution does not permit rogue militias, they may question whether implementing legislation is needed for enforcement. Although recent precedent in Virginia and New Mexico confirms that the strict subordination clauses in those states’ constitutions are self-executing, there is little, if any, case law making that clear elsewhere.

Similarly, state public safety officials may not be aware of their own state’s anti-militia or anti-paramilitary-activity laws. The anti-militia laws date to the late nineteenth and early twentieth centuries and have been used only infrequently in the last 50 years. The anti-paramilitary-activity laws had their genesis in the proliferation of Ku Klux Klan (KKK) training camps in the 1970s and 1980s and, although used successfully after their passage, gathered dust on the shelf as KKK activity waned.

Moreover, these laws are criminal statutes, which require local law enforcement resources to investigate and prosecute. They are not the bread-and-butter of most local law enforcement, whose work includes a steady diet of drug, assault, and property crimes. Resource-strapped police departments, sheriffs’ offices, and prosecutors’ offices may prioritize building the kinds of cases with which they are most familiar and know how to prove at trial. Although it would be logical for state attorneys general to launch investigations into paramilitary organizations operating in their states, many state attorneys general do not have general criminal law enforcement authority. And although some of the most recent successful uses of these laws have been in civil cases seeking injunctive relief (i.e., court orders to prohibit the unauthorized activity in the future), the use of criminal statutes as a basis for civil enforcement remains relatively novel.

Finally, politics undoubtedly plays a role. The enforcement of state laws is the responsibility of elected prosecutors, elected sheriffs, and police chiefs either elected or appointed by local elected officials. Where their constituents support unauthorized militias—as is often the case in jurisdictions where anti-government ideology predominates and the population is heavily in favor of expansive gun rights—it is no surprise that local officials would choose not to enforce the anti-militia laws they have available. Worse, in some areas of the country, elected sheriffs who call themselves “constitutional sheriffs,” in reference to their view that they answer to no one except the constitution as they interpret it, openly support unauthorized militia activity as necessary to counter the purported tyranny of government as they see it.

Even if none of these barriers to state and local enforcement existed, there would still be a compelling need for federal action. As the mobilizations from well before Charlottesville have shown, unauthorized paramilitary organizations regularly travel across state lines, join with other paramilitary organizations in their armed activity, and create a public safety and national security threat that transcends the boundaries of any local or state jurisdiction. When Cliven Bundy called for help after the federal government attempted to seize his cattle for non-payment of decades of grazing fees on federal lands in Nevada in 2014, hundreds of unauthorized militia members came from multiple states. The armed standoff, during which militia members trained their rifles on federal agents, ended with the federal government relinquishing the cattle and retreating. Unauthorized militia members acted similarly a few years later, traveling from across the country to take over the Malheur Wildlife Refuge in Oregon in protest against the imprisonment of a father and son convicted of arson for setting fires on federal land more than a decade earlier. The ensuing standoff ended only after a militia member fleeing law enforcement was shot and killed.

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.

Designing a New Federal Statute

A federal statute prohibiting unauthorized paramilitary activity should provide not only criminal penalties, but perhaps more importantly, civil enforcement mechanisms. Criminal prosecutions, while necessary for accountability, apply solely to the individuals or entities who are prosecuted. They do not provide the kind of forward-looking relief that civil enforcement can provide. A federal statute should authorize the U.S. Attorney General and U.S. Attorneys nationwide to institute a civil action for preventive relief, including by injunction or restraining order, against those engaged in prohibited paramilitary activity. Moreover, people who have been injured as a result of unlawful paramilitary activity should have a cause of action for preventive relief, monetary damages, or both.

Congress has 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.  These prohibitions would not infringe the Second Amendment’s individual right to bear arms for self-defense. Nor would prohibitions on conduct infringe First Amendment rights; even if the conduct contains elements of speech or expression, it may be regulated as long as the restriction is tailored to further an important government interest.

The government interests here are obvious and paramount. Unauthorized paramilitary organizations, regardless of ideology, threaten the constitutional rights and physical safety of members of the public, elected officials, law enforcement officers, and even the military. Congress should act now to defuse the powder keg of violence these militias present.