Mary McCord, a former Justice Department lawyer who currently leads Georgetown University’s Institute for Constitutional Advocacy and Protection, asserts that armed militia groups which assume law enforcement functions unlawfully during protests violate state laws. McCord has identified four laws which can help prosecutors target such militia groups.
The Problem
Militia groups usually form to prepare for and oppose existential violent threats to society as well as oppose government authority. Threats often center around perceived overreach by law enforcement. Events like Oklahoma City bombing and Waco siege have elevated these paramilitary-style organizations that often combine conspiracy theories with antigovernment sentiments into mainstream awareness.
Militia members are also drawn to larger anti-government movements, including sovereign citizen and tax protest movements. Furthermore, mainstream political actors expressing similar viewpoints regarding immigration and gun control has given militia members legitimacy as members.
Analysts warn that Oath Keepers militia have begun appearing at racial justice protests and that their presence makes violence more likely. Markey and Raskin introduced legislation intended to prohibit armed militias from engaging in private paramilitary activities such as public patrolling or drills, falsely assumptive law enforcement functions and interfering or attacking official government proceedings or harming lawmakers.
The Solution
As the gun rights debate rages on, militia-style groups have become a growing presence on America’s public landscape. Armed groups belonging to these militia-like outfits have taken an active part in protesting COVID-19 restrictions, participating in racial justice protests, and conducting neighborhood patrols with weapons armed to defend themselves against potential attackers.
Many states have laws in place against private paramilitary activities, yet prosecutors rarely use them in prosecutions due to ignorance of these laws, fear of public backlash and belief in militia-style activism as being legal.
To address this threat, Georgetown University’s Institute for Constitutional Advocacy and Protection has collaborated with Rep. Jamie Raskin and others on legislation that would prohibit armed militias from conducting public patrols or drills, engaging in harmful paramilitary techniques or performing law enforcement duties without authorization from law enforcement authorities. Furthermore, private citizens would be permitted to file civil suits against these groups based on their actions – an important step toward eliminating private militias as an imminent threat. If adopted into law this legislation could go a long way toward combatting their potential threat of private militias.
The Legislation
People who join militias believe it is their constitutional right to be heavily armed and prepared in case of natural disasters or foreign invasion. Participants often learn military skills like target shooting and land navigation from participating.
Militias provide training and camaraderie that is invaluable, yet their members have a tendency to develop conspiratorial viewpoints against governments they perceive as too big, powerful or corrupt – creating a potentially volatile situation for our nation.
Senator Ed Markey and Representative Jamie Raskin have introduced legislation to combat this threat by prohibiting private militias from patrolling streets, engaging in paramilitary tactics or falsely assuming law enforcement functions. Furthermore, it would include civil forfeiture provisions to seize weapons used illegally for militia activity; federal prosecutors would be empowered to take legal action against individuals engaging in such behavior and federal courts would take appropriate measures against any individuals engaging in this type of behavior. Their legislation builds on Supreme Court precedent which defines “well regulated militia” as meaning official state units such as National Guard rather than privately organized paramilitary groups or private militias.
The Final Words
Since the 1990s, militia membership has fluctuated as members’ interests shift; but their threat remains real, driven by perceived existential threats, paranoia and conspiratorial thinking, and an aim of seizing power over others.
Militias have the tendency to change over time, with most units comprising only a few core members who remain consistent participants. But their influence can grow, and if they assume any qualities associated with larger military-style organizations or engage in law enforcement activities reserved for official agencies (such as patrolling or training), then they could potentially face prosecution under this legislation.
McCord’s bill would make it illegal for private militias to patrol, train or perform law enforcement or security functions without prior approval from federal prosecutors, with U.S. Attorney’s offices responsible for enforcement. This may prove more effective than depending on local law enforcement who may fail to enforce anti-militia legislation due to ignorance, fear of voter backlash or belief in groups’ aims.
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