Opinion
The Plot Against Gretchen Whitmer Shows the
Danger of Private Militias
These groups have no constitutional right to exist.
By Mary B.
McCord
Ms. McCord
was an acting assistant attorney general for national security.
Oct. 8,
2020
A gathering
in Louisville, Ky., in September.Credit...Bryan Woolston/Reuters
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. These organizations — some of which
openly refer to themselves as “militias,” while others reject the term — often
train together in the use of firearms and other paramilitary techniques and
“deploy,” heavily armed and sometimes in full military gear, when they deem it
necessary.
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!”
Armed
demonstrators outside the Michigan Capitol in May protesting stay-at-home
orders.Credit...Scott Olson/Getty Images
Kyle
Rittenhouse, left, was charged with shooting three Black Lives Matter
protesters in Kenosha, Wis., killing two and injuring one.Credit...Adam
Rogan/The Journal Times, via Associated Press
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. Even before the adoption of the Constitution, the colonies
recognized the importance of a “well regulated” militia to defend the state, in
preference over standing armies, which they perceived as a threat to liberty.
The militia consisted of able-bodied residents between certain ages who had a
duty to respond when called forth by the government.
But “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.
Emerging
from the American Revolution, the founders reasonably were wary of insurgencies
that could threaten the stability of the new Union. Shays’ Rebellion and other
early armed uprisings against the states only solidified those fears. Thus, the
“well regulated militia” in the Constitution’s Second Amendment refers to the
militia once called forth by the government, not by private vigilante
organizations deciding when and under what circumstances to organize and
self-deploy.
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.
Which brings
us back to the authority of the states. In addition to state constitutional and
statutory schemes by which only the governor may activate “able-bodied”
residents for militia service, other laws also forbid paramilitary activity and
the usurpation of law enforcement and peacekeeping authority.
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 the president’s unsupported claims about election fraud as their
license to deploy to the polls to “protect” or “patrol” the vote.
A member of
the Oath Keepers in Oregon.Credit...Jim Urquhart/Reuters
Their armed
presence not only would violate state anti-paramilitary laws, it would likely
violate laws against voter intimidation as well. State attorneys general,
secretaries of state, local prosecutors, law enforcement officers and election
workers must know about these laws and be prepared to enforce them. They should
announce this in advance and consider taking pre-emptive action through
attorney general legal opinions, cease and desist orders, and prosecutions or civil
litigation.
These
efforts must continue after the election, when the threat of civil unrest could
be at its greatest. 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.
Mary B.
McCord, legal director for Georgetown Law’s Institute for Constitutional
Advocacy and Protection and a visiting professor, was the acting assistant
attorney general for national security at the Department of Justice from 2016
to 2017.
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