Paranoia, Patriotism, and the Citizen Militia Movement: Constitutional Right or Criminal Conduct? - R.j. Larizza

• Citation: Vol. 47 No. 2
• Publication year: 1996

COMMENT

Paranoia, Patriotism, and the Citizen Militia Movement: Constitutional Right or Criminal Conduct?

I. Introduction

As this country rushes towards the twenty first century, a growing cloud of civil unrest has found its way into the hearts of many Americans. In a bold move to challenge the power of the federal government, a significant number of American citizens have sought refuge from perceived government injustice by forming citizen militias. These self styled militia groups fear that the liberties guaranteed by the United States Constitution are rapidly evaporating in the wake of a federal government that has grown too large and powerful. For example, while addressing the Senate Subcommittee on terrorism, Norman Olson (Commander of the Michigan Regional Militias) characterized the federal government as the "child of the armed citizen" and stated that "[t]he increasing amount of federal encroachment into our lives indicates the need for parental corrective action."¹ While Olson and other militia activists claim as their purpose restoration of the republican form of government envisioned by the founding fathers, the tragic bombing of the Murrah Building in Oklahoma City has called their methods into question.² Conversely, citizen militia groups have denounced the bombing and deny any involvement in the event.³ In response to the bombing and other alleged acts of violence, two congressional hearings have been conducted in an effort to gather information on the citizen militia movement to determine if they pose a criminal threat to our society.⁴ Furthermore, several bills have been proposed to prohibit the formation of citizen militias.⁵ Finally, several states have enacted laws that regulate or otherwise prohibit the formation of citizen militias, training associated with militia activities, and the participation in such training activities.⁶

At this time an uneasy truce has developed between militia groups and law enforcement agencies. Militia activists continue to preach their interpretation of the Constitution while politicians, law enforcement agencies and various watchdog organizations seek to prohibit the continued existence of the militia movement. The fact that a significant number of American citizens have reached the point of arming themselves to defend against a perceived government threat (whether real or imagined) reflects a current of government suspicion that should not be summarily dismissed. Professor Glenn Harlan Reynolds eloquently makes this point:

When large numbers of Americans begin arming themselves against their own government and are ready to believe even the silliest rumors about that government's willingness to evade the Constitution, there is a problem that goes beyond gullibility. This country's political establishment should think about what it has done to inspire such distrust—and what it can do to regain the trust and loyalty of many Americans who no longer grant it either.⁷

Ultimately, resolution of the issues implicated by the citizen militia movement requires a balancing of First and Second Amendment rights against governmental interests in public health and safety. This comment proposes that armed citizen militia groups have the right to exist based on a two part theory. First, that the Second Amendment confers (i) an individual right to keep and bear arms, and (ii) a collective right of the people to form citizen militias in order to protect against oppressive and tyrannical government practices. Second, that the First Amendment protects the speech and associational activities of citizen militias. By combining the respective rights enumerated in the First and Second Amendments, citizen militia groups arguably have the constitutional right to associate, and engage in armed activities, so long as their activities are not otherwise unlawful.⁸

The first portion of this Comment will focus on the organization, philosophy, purpose, and activities of the various citizen militias. This background information is necessary to identify the constitutional arguments in support of the movement's continued existence. The second portion of this Comment will identify and discuss state and federal laws prohibiting the formation of citizen militia groups. Pending federal legislation will also be discussed. The third portion will consist of a general summary of the conclusions reached regarding the constitutional implications of laws designed to prohibit the activities of citizen militia groups.

II. The Citizen Militia Movement Defined

Citizen militia activists consider the formation of citizen armies as the legitimate exercise of the constitutional right to keep and bear arms. As a result, citizen militia groups have been created in a number of states. In order to determine the validity of claims by militia leaders that the formation of citizen armies is constitutionally protected, an overview of the types of activities typical of the movement is necessary. It is hoped that by denning the essential structure, philosophy, activities, and objectives of the movement, the constitutional implications of restricting or, alternatively, eliminating citizen militia groups will become clearer.

A. Structure, Organization, and Numbers

To date the militia movement has not established nationwide uniformity in the sense of a centralized governing body, but efforts to create a nationwide network are growing. For example, on November 18, 1995, Macon, Georgia was the site of a self proclaimed citizen militia conference where movement notables such as J. J. Johnson,⁹ Bob Fletcher,¹⁰ Nancy Lord,¹¹ and Bob Starr¹² sought to educate the general public as to the activities and goals of the militia movement and recruit militia members. This conference illustrates an effort on the part of militia activists to organize on a national level.

Towards this end an organization known as the National Confederation of Citizen Militias¹³ has been created to assist the various local militia groups in organizing, recruiting, and retaining members. In a telephone interview with the executive director of the confederation—Mr. Ken Adams—he stated that the confederation assists persons attempting to establish a citizen militia in their locality as well as providing current documents and other paraphernalia to existing militia groups. The

NCCM claims to be a non-denominational, non-political, and non-racial organization constituting an alliance of patriotic defense groups.¹⁴

In response to efforts by militia leaders and support groups to spread pro militia propaganda, several organizations are attempting to track militia groups. Perhaps the most zealous of these watchdog organization is the Klanwatch project.¹⁵ In June 1995 the Klanwatch Project reported that approximately 131 individual militia groups were present throughout the United States with approximately 23 of those groups possessing racist ties.¹⁶ Brian Levin (Associate Director Klanwatch Project), during testimony before the House Subcommittee on crime, stated that almost 272 militia groups are operating in 48 states, with at least 66 of those groups having ties to the white supremacist movement.¹⁷ Levin informed members of the subcommittee that Klanwatch shares its information with over 6,000 law enforcement agencies including the FBI and ATF.¹⁸ The substantial increase in militia activity, if numerically accurate, could be the result of continuing efforts by militia activists to organize and recruit mainstream Americans to the movement.

Estimates of the actual number of militia members varies. Norman Olson estimates that approximately 4.6 million Americans have signed on to the militia movement.¹⁹ Hard and fast figures concerning the number of militia members nationwide are currently unavailable but government officials are seeking to obtain more hard data on the size and strength of the citizen militia movement. For example, Senator Spectre, Chairman of the Senate Subcommittee on Terrorism, asked militia leaders to provide his committee (in writing) with information regarding, "where the militias are, how many there are in each state, what their names are, what their membership is, what their purposes are, . . . [and] what weapons they have."²⁰ Conversely, militia activists are not inclined to share what they consider to be tactical information with government agencies or officials. Consider this warning provided to would be militia members during the November 18, 1995 militia conference in Macon, Ga.: "Never divulge firepower, specialties of individuals, or any information that would breach the security of your unit."²¹ Thus, efforts to nail down accurate membership figures are speculative at best.

The structure of individual militia groups vary to some degree, but are typically of standard military design. For example, the state of Georgia is divided into six areas, each area consisting of four sections, and each section divided up by county.²² The Michigan Militia has an elaborate organizational scheme. First, the state is physically divided into nine divisions. Each division has a low of seven and a high of thirteen counties within its jurisdiction. The state commander serves as the ultimate authority, with a subordinate command structure consisting of a chief of staff (serving the state commander), divisional officers, and brigade commanders.²³ At this time it appears that centralization of the command structure has been confined to individual states. By limiting its command structure to the state level, autonomy and security concerns are satisfied.

To further the integrity of individual militia groups, militia leaders have set up a scheme designed to protect the identities and numbers of individual members. Members are urged to muster in squad sized community units of eight to ten individuals. The squad leader must appoint a liaison officer, other than him or herself, to communicate with two neighboring squads. The individual members of each squad are...