{"id":2091,"date":"2020-10-09T13:49:30","date_gmt":"2020-10-09T17:49:30","guid":{"rendered":"http:\/\/000af36.netsolhost.com\/wordpress1\/?p=2091"},"modified":"2020-10-09T13:49:30","modified_gmt":"2020-10-09T17:49:30","slug":"ny-times-article-armed-militias-are-not-legally-protected","status":"publish","type":"post","link":"http:\/\/griendling.com\/wordpress1\/2020\/10\/09\/ny-times-article-armed-militias-are-not-legally-protected\/","title":{"rendered":"NY Times article: Armed “militias” are not legally protected"},"content":{"rendered":"\n
This article was published on the NY Times website by a former acting assistant attorney general for national security at the U.S. Department of Justice <\/em><\/h5>\n\n\n\n

In the swirls of\ndisinformation that now pollute our political discourse, one is particularly\ndangerous: that private militias are constitutionally protected.<\/p>\n\n\n\n

Although these vigilante\ngroups often cite the Second Amendment\u2019s \u201cwell regulated militia\u201d for their\nauthority, history and Supreme Court precedent make clear that the phrase was\nnot intended to \u2014 and does not \u2014 authorize private militias outside of\ngovernment control.<\/p>\n\n\n\n

Indeed, these armed groups\nhave no authority to call themselves forth into militia service; the Second\nAmendment does not protect such activity; and all 50 states <\/a>prohibit it.<\/p>\n\n\n\n

The danger of these groups\nwas brought home on Thursday with the announcement that the F.B.I. had thwarted a plot <\/a>by people associated\nwith an extremist group in Michigan to kidnap Gov. Gretchen Whitmer and\noverthrow the government.<\/p>\n\n\n\n

Court documents say that the\ngroup discussed trying the governor for treason and murdering \u201ctyrants.\u201d Six\nmen now face federal kidnapping conspiracy charges, but unauthorized militia\nactivity continues in Michigan and elsewhere.<\/p>\n\n\n\n

The unnamed militia involved\nin the kidnapping plot is part of a growing number of private paramilitary\ngroups mobilizing across the country, wholly outside of lawful authority or\ngovernmental accountability. These organizations \u2014 some of which openly refer\nto themselves as \u201cmilitias,\u201d while others reject the term \u2014 often train\ntogether in the use of firearms and other paramilitary techniques and \u201cdeploy,\u201d\nheavily armed and sometimes in full military gear, when <\/p>\n\n\n\n

Sometimes they want to fight\nagainst the perceived tyranny of the states, as when they stormed the Capitol<\/a> in Lansing, Mich., this\nspring to demand the end of the governor\u2019s pandemic shutdown order, egged on by\nPresident Trump\u2019s tweets to \u201cLIBERATE MICHIGAN!\u201d<\/p>\n\n\n\n

Sometimes they want to usurp\nthe functions of law enforcement, as they\u2019ve done in Kenosha, Wis., and\nelsewhere, purporting to \u201cprotect\u201d property during racial justice protests,\noften in response to false rumors about leftist violence, rumors stoked by the\npresident\u2019s calls to designate \u201cantifa\u201d as a terrorist organization.<\/p>\n\n\n\n

Most alarmingly, some of them\nare planning their own poll-watching and openly training in preparation for the\npost-election period.<\/p>\n\n\n\n

Whatever their stated\npurpose, their conduct is unlawful and not constitutionally protected. Even\nbefore the adoption of the Constitution, the colonies recognized the importance\nof a \u201cwell regulated\u201d militia to defend the state, in preference over standing\narmies, which they perceived as a threat to liberty. The militia consisted of\nable-bodied residents between certain ages who had a duty to respond when\ncalled forth by the government.<\/p>\n\n\n\n

But \u201cwell regulated\u201d meant\nthat the militias were trained, armed and controlled by the state. Indeed, 48\nstates have provisions in their constitutions that explicitly require the\nmilitia to be strictly subordinate to the civil authority.<\/p>\n\n\n\n

Likewise, state constitutions\nand laws then and now generally name the governor as the commander in chief of\nits armed forces \u2014 and only the governor or a designee has the power to call\nforth the able-bodied residents for militia service.<\/p>\n\n\n\n

Emerging from the American\nRevolution, the founders reasonably were wary of insurgencies that could\nthreaten the stability of the new Union. Shays\u2019 Rebellion<\/a> and other\nearly armed uprisings against the states only solidified those fears. Thus, the\n\u201cwell regulated militia\u201d in the Constitution\u2019s Second Amendment refers to the\nmilitia once called forth by the government<\/em>, not by private vigilante\norganizations deciding when and under what circumstances to organize and\nself-deploy.<\/p>\n\n\n\n

The federal and state\ngovernment control of the militia has also been confirmed by the Supreme Court.\nIn 1886, the court upheld the constitutionality of a state criminal law that\nmade it unlawful for \u201cany body of men\u201d outside state or federal governmental\nauthority to \u201cassociate themselves together as a military company or\norganization, or to drill or parade with arms in any city or town of the state.\u201d<\/p>\n\n\n\n

This criminal statute and\nothers were enacted after the Civil War and are on the books of 29 states. The\nSupreme Court said without question that states had authority to control and\nregulate military bodies and associations as \u201cnecessary to the public peace,\nsafety and good order.\u201d<\/p>\n\n\n\n

The court\u2019s 1886 decision was\nreaffirmed in 2008 in Justice Antonin Scalia\u2019s majority opinion in District of\nColumbia v. Heller.That case established that the Second Amendment\nprotects an individual right to bear arms for self-defense, but \u201cdoes not\nprevent the prohibition of private paramilitary organizations.\u201d Although there\nare many gray areas about Second Amendment rights, this is not one of them.<\/p>\n\n\n\n

Which brings us back to the\nauthority of the states. In addition to state constitutional and statutory\nschemes by which only the governor may activate \u201cable-bodied\u201d residents for\nmilitia service, other laws also forbid paramilitary activity and the\nusurpation of law enforcement and peacekeeping authority.<\/p>\n\n\n\n

Twenty-five states prohibit\nteaching, demonstrating or practicing in the use of firearms or \u201ctechniques\u201d\ncapable of causing injury or death for use during a civil disorder. Eighteen\nstates prohibit either the false assumption of the duties of public officials,\nincluding law-enforcement officials, or the wearing of uniforms similar to\nmilitary uniforms.<\/p>\n\n\n\n

All these laws point to a\nsingle conclusion: There is no right in any state for groups of individuals to\narm themselves and organize either to oppose or augment the government.<\/p>\n\n\n\n

Now, more than ever, state\nand local officials must enforce these statutes. In battleground states like\nPennsylvania, Michigan and Wisconsin, as well as other hotbeds of militia\nactivity like Oregon, Idaho, Virginia and Texas, they must ready themselves for\nunlawful private militias showing up at the polls and on the streets during\nballot counting and beyond.<\/p>\n\n\n\n

Those groups, like the Three\nPercenters, Oath Keepers and others that claim to be \u201cpatriots\u201d but answer to\ntheir own interpretation of the Constitution, are likely to hear the\npresident\u2019s unsupported claims about election fraud as their license to deploy\nto the polls to \u201cprotect\u201d or \u201cpatrol\u201d the vote.<\/p>\n\n\n\n

Their armed presence not only\nwould violate state anti-paramilitary laws, it would likely violate laws\nagainst voter intimidation as well. State attorneys general, secretaries of\nstate, local prosecutors, law enforcement officers and election workers must\nknow about these laws and be prepared to enforce them. They should announce\nthis in advance and consider taking pre-emptive action through attorney general\nlegal opinions, cease and desist orders, and prosecutions or civil litigation.<\/p>\n\n\n\n

These efforts must continue\nafter the election, when the threat of civil unrest could be at its greatest.\nState and local leaders, in both parties, must denounce armed militia activity,\nwhether from the right or the left.<\/p>\n\n\n\n

These leaders may also have\nto take swift action to protect public safety and preserve constitutional\nrights. But the law is on their side \u2014 private armed militias find no support\nin the U.S. or state constitutions or in American history. They must not be\ntolerated in our society.<\/p>\n\n\n\n

Mary B. McCord, legal\ndirector for Georgetown Law\u2019s Institute for Constitutional Advocacy and\nProtection and a visiting professor, was the acting assistant attorney general\nfor national security at the Department of Justice from 2016 to 2017.<\/p>\n","protected":false},"excerpt":{"rendered":"

This article was published on the NY Times website by a former acting assistant attorney general for national security at the U.S. Department of Justice 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\u2019s… Read More<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[],"_links":{"self":[{"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/posts\/2091"}],"collection":[{"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/comments?post=2091"}],"version-history":[{"count":1,"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/posts\/2091\/revisions"}],"predecessor-version":[{"id":2092,"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/posts\/2091\/revisions\/2092"}],"wp:attachment":[{"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/media?parent=2091"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/categories?post=2091"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/griendling.com\/wordpress1\/wp-json\/wp\/v2\/tags?post=2091"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}