Home > Journals > WMLR > Vol. 63 (2021-2022) > Iss. 2 (2021)
William & Mary Law Review
Abstract
“Yesterday, in my view, was one of the darkest days in the history of our nation.” President Joseph R. Biden spoke these words following the January 6, 2021 riots at the U.S. Capitol Building that left five people, including a police officer, dead. The mob that stormed the Capitol sought to prevent Congress from certifying then-President-elect Biden’s Electoral College victory. In the weeks following the riot, investigators began arresting rioters associated with extremist right-wing militia groups, such as the Oath Keepers and Three Percenters. While January 6, 2021, can accurately be labeled a dark day in American history, the events that unfolded did not necessarily surprise those familiar with the activity of extremist private militia groups in the preceding months.
On October 8, 2020, federal agents arrested seven members of the Wolverine Watchmen militia who plotted to kidnap Michigan Governor Gretchen Whitmer. One week earlier, in front of a national audience, then-President Donald Trump told the Proud Boys, a far-right extremist group, to “stand back and stand by.” In August 2020, seventeen-year-old Kyle Rittenhouse killed two protestors in Kenosha, Wisconsin, where armed militia groups sought to assume security functions during protests for racial justice. Although these incidents differ, they all highlight a troubling reality: the increased presence of armed private militia groups in public spaces.
While elements of private militias have existed since America’s colonial period, the modern militia movement traces its roots to the 1990s. The movement, which is generally “anti-government and radically pro-Second Amendment,” quieted in the early 2000s, but has undergone a resurgence in recent years. Groups vary greatly in ideology and activity, but three recent trends have emerged. First, many groups have shifted from a strict anti-government stance to open support for right-wing politicians. Second, militia members have been emboldened by tacit support from politicians and law enforcement, as demonstrated by the Proud Boys’ positive reaction to then-President Trump’s comments. Third, armed groups recently have appeared more regularly at peaceful protests, particularly those dedicated to racial justice. As one analyst noted, the militia movement has “normaliz[ed] the idea that vigilante justice is not just justifiable but is necessary.”
As demonstrated in Kenosha, as well as in Charlottesville, Virginia, three years earlier, the presence of armed private militias in public spaces can have deadly consequences. Of course, those who go so far as to enact violence, fire a weapon, or take a life can be prosecuted under various laws. However, all fifty states have at least one additional statutory or constitutional provision that they could use to regulate armed private militias. For example, some states criminalize paramilitary activity, such as instructing others to use firearms or explosives knowing the weapons “will be unlawfully used in furtherance of a civil disorder.” Other laws regulate gatherings of armed militia groups. States have failed to effectively use these provisions, likely due in part to a lack of precedent, a lack of political will, and the limited penalties associated with a conviction.
Private militias have contested that these anti-militia laws are unconstitutional. It is likely not merely coincidental that the resurgence of the private militia movement has overlapped with the recent increase in Second Amendment jurisprudence. In 2008, in the foundational case District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to possess a firearm for lawful purposes, such as protection in the home. Two years later, the Court incorporated the Second Amendment right to bear arms to apply its protection to the states.
Nevertheless, over the past decade, lower courts have repeatedly upheld gun safety restrictions as constitutional public safety measures. In fact, Virginia utilized its anti-militia laws in a successful suit that banned some groups from armed public gatherings in Charlottesville following 2017’s violent “Unite the Right” rally. While laws preventing private militias from carrying firearms in public may raise Second Amendment concerns, their application is consistent with the courts’ understanding of the Amendment’s outer limits.
This Note argues that state laws that regulate private militia groups are constitutional and not violative of the Second Amendment. To supplement this argument, this Note proposes that all states should adopt the same standard to consistently regulate armed militia gatherings in public spaces. This standard, modeled on Alabama’s statute regulating unauthorized military organizations, would cover a variety of armed groups gathering at protests, rallies, and public events. Additionally, this proposed law would increase penalties for those convicted to enhance deterrence and give the law more bite. The application of this standard across all fifty states could de-escalate tensions, prevent violence, and save lives.
To begin its analysis of laws regulating armed groups, this Note must first define what constitutes a “private militia,” a term that has taken on new meaning in recent years. Part I defines the term and examines key differences between unofficial private militias and state-sanctioned forces. Part I also traces the origins of militia groups in America, from their colonial roots through the present day, exploring some of the key features animating the modern movement. Part II examines recent Second Amendment jurisprudence to analyze some of the theories that private militias draw on in arguing for their right to gather in public while armed.
Part III describes the existing provisions used to regulate armed groups and examines their constitutionality under the Second Amendment. Part IV then details this Note’s proposed standard, addressing practical challenges of implementation and responding to anticipated counterarguments. Finally, a brief conclusion summarizes this Note’s argument and reexamines the current landscape for private militia groups. States have the tools at their disposal to limit the negative influence of armed private militias. These laws are constitutional, and states can, and should, use them to protect communities.