The rise of private militia: a First and Second Amendment analysis of the right to organize and the right to train.

• Author: Polesky, Joelle E.

Introduction

Copious news coverage of Ruby Ridge,(1) Waco,(2) and the Oklahoma City bombing(3) has prompted a growing concern with the proliferation of paramilitary organizations and paramilitary activity.(4) The public's anxiety is fueled by the belief that private militia pose a threat to society. Private militia are commonly misunderstood and mischaracterized as organizations comprised solely of right-wing militants adhering to Aryan, racist ideology. Although many militia members subscribe to these views, allegiance to the far right is not a prerequisite to membership in a private militia.(5) Instead, ardent belief in the need to protect individual rights from encroachment by the federal government is the predominant attribute of paramilitary organizations.(6) This belief appears to be a simple exercise of the First Amendment guarantees of the freedom of speech and the freedom of association.(7) Moreover, a textual reading of the Second Amendment seemingly confers upon individuals the right to organize and right to train as a militia.(8)

Despite what may at first appear to be a constitutional right to operate as a militia, numerous states have statutes prohibiting the existence of private militia and/or their training activities. To assess the constitutionality of these state statutes, this Comment examines some of the First and Second Amendment issues involved in regulating private militia.(9)

Part I of this Comment provides an abbreviated historical account of the militia movement, starting with its origins in England and its subsequent evolution in the United States. It also explores characteristics common to today's paramilitary organizations. Part II introduces the two types of state statutes - those that prohibit paramilitary organization altogether and those that proscribe only paramilitary training. Part III provides a First Amendment analysis, elaborating on the significance of political speech and association with respect to paramilitary organizations and discussing the fundamental distinction between speech and conduct with respect to paramilitary training. Part IV will conclude that states have the constitutional authority to regulate private militia activity because the Second Amendment, as interpreted, grants states the power to regulate both the militia and the possession of arms as it relates to the militia.

The creation of private militia is a politically expressive means of exercising the First Amendment rights to freedom of speech and association, as paramilitary organization(10) constitutes a pointed expression of anguish about alleged government infringement on individual rights and about the manner in which these rights can be protected.(11) Statutes completely banning the creation of private militia violate the First Amendment because the prohibition directly attacks the message militia members aim to convey.(12)

Paramilitary training is also intended to impart a message about the manner in which individual rights can be protected and government abuses allayed. Nonetheless, expressive conduct can be constitutionally proscribed if there is some valid purpose and the regulation is not aimed at stifling the expressive element. Thus, anti-paramilitary training statutes should pass constitutional muster because their purpose in regulating militia activity is unrelated to the suppression of expression.

Judicial precedent clearly demonstrates that paramilitary organizations cannot rely on the Second Amendment to justify either their existence or their activity.(13) The Second Amendment right to a "well regulated militia" does not encompass an unbridled license for individuals to organize as a private militia independent of the state. Rather, the state is empowered to determine what constitutes a militia(14) and whether the possession of arms is necessary to the maintenance of that which the state deems a militia.(15)

Although the actual creation of paramilitary organizations is not protected by the Second Amendment, per se, militia members can seek constitutional refuge in the First Amendment rights to freedom of speech and association. Paramilitary training, however, can be constitutionally proscribed under both the First and Second Amendments. Hence, although anti-paramilitary organization statutes are an unconstitutional limitation on individual rights, anti-paramilitary training statutes survive constitutional scrutiny.

1. History of the Militia

   The militia first existed to prevent the rise of tyrannical government.(16) Over time, however, the significance of the militia to free society diminished considerably, primarily because of the "emerging . . . belief that the interests of the people . . . could be protected effectively by the establishment of democratic governments, offering legal guarantees of individual rights."(17)

   Militia members today believe that modern government has failed to achieve or sustain this democratic ideal.(18) The fundamental purpose of current paramilitary organizations, therefore, corresponds with the historical justification for maintaining a militia - militia members consider their existence necessary to protect society from the federal government.(19) What was once a viable means of supplying protection against the federal government, however, may no longer be a realistic alternative. The militia may have been an efficient means of protection when the country was small and when only a select portion of society contributed to the democratic process; but modern society simply does not foster an environment conducive to the existence of private, armed groups protecting the citizenry.(20)

   1. Roots of the Militia and an American Metamorphosis

      The militia grew out of an old English custom that was adopted by the colonies, altered to conform to the American experience, and eventually incorporated into the Second Amendment.(21) The citizens' militia developed in England to serve as an effective means of national defense and to counterbalance the strength of a professional army.(22) The English also perceived the militia as a "critical element in their development of `government under law'"(23) and as a means of tempering the strength of the monarchy.(24) Although the view of the militia as a necessary force to balance the strength of the army gradually changed,(25) it continued to be regarded as a politically essential method of regulating the government. During the Enlightenment, the perception that maintaining a citizens' militia was an individual duty was transformed into a belief that militia membership constituted an individual right.(26)

      Colonial acceptance of a militia was compelled by the same concern that led to its existence in England. fear of a standing army.(27) The colonists diverged somewhat from English custom, however, by expanding the right to bear arms to encompass both militia members and individual citizens.(28) In time, as individual constitutions and bills of rights were formulated, a schism over this issue developed among the colonies themselves.(29) The ensuing debate centered on whether to provide solely for a citizens' militia or whether to also provide for an individual right to bear arms.(30)

      Shortly after American independence, the need for a militia was reevaluated. The institution of the new constitutional system of checks and balances, and the provisions for individual rights, prompted Americans to question if a militia was a necessary restraint on a potentially tyrannical government.(31) The significance of the militia waned, and its function changed considerably. In 1792, the first congressional legislation regarding the militia was passed, which emphasized the structured nature that the militia was to assume.(32) The next two centuries witnessed a drastic transformation of the militia's role and general characteristics.(33) Today, the National Guard and similar highly structured and managed military organizations are commonly considered the "militia."(34)

      Modern paramilitary organizations seek to reinvigorate the historical role and function of the militia. In addition to the legal obstacles they may face, their endeavor is complicated by two factors that physically inhibit the reinstitution of a traditional militia: (1) the sheer expanse of the United States, and (2) the diverse and disorganized nature of today's militia movement.

   2. An Inside Look at Today's Militia

      The thrust of the new grassroots movement for a state militia has its roots in the original thirteen colonies and their need to ban together for the common protection of God-given natural Rights. The government then, was becoming too oppressive and tyrannical. The tolerance level was breached. Could we be witnessing history repeating itself?(35)

      Members of private militia groups come from various sectors of society(36) and are spread throughout the United States. Over half the states are believed to have active militia groups and estimates of membership numbers range anywhere from 1000 to 12,000 supporters.(37) Paramilitary organizations engage in a vast spectrum of activities and maintain a variety of structures. Although paramilitary tactics are the focus of most private militia,(38) militia members also engage in other forms of government protest and participate in community programs.(39) With respect to militia structure and operation, some groups prefer a clandestine approach to their activities, while others are more vocal.(40) Possibly the only element common to the operation of paramilitary organizations is their reliance on computers as a means of communication.(41)

      Two predominant complaints about the government provide the rallying cry for private militia groups. First, the militia are infuriated by rampant government abuse, specifically in the areas of law enforcement and taxation.(42) Belief that the government increasingly subjugates individual rights - an impression fueled by the Ruby Ridge and Waco incidents(43) - compels militia to...