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Democratic bill to bar militia activities faces constitutional questions

Jan 18

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During the American Revolution, militias — known as “Minutemen” — formed the backbone of the revolutionary forces. These groups, comprised of men aged 16 to 60, were tasked with serving, keeping arms and training for the defense of their towns.

While historical militias were state-operated and answered to the government, today’s militias operate without government regulation.

For Sen. Ed Markey, D-Mass., and Rep. Jamie Raskin, D-Md., militia groups evoke images of far-right extremist organizations like the Proud Boys and the Oath Keepers. Some of these groups’ members were involved in the storming of the U.S. Capitol on Jan. 6, 2021.

In response to such incidents, Markey and Raskin introduced the “Preventing Private Paramilitary Activity Act,” aiming to federally prohibit private militia activity. All 50 states have laws prohibiting unauthorized groups from engaging in activities reserved for the state militia, but the proposed bill seeks to enhance federal enforcement.

If enacted, the bill would criminalize armed militia groups engaging in harmful or deadly paramilitary techniques, interfering with government proceedings, violating constitutional rights, assuming law enforcement functions and training for such behaviors.

According to Eric Berger, an Earl Dunlap Distinguished Professor of Law at the University of Nebraska-Lincoln, modern militias differ significantly from their 18th-century counterparts. Berger noted potential constitutional challenges.

“One would be to argue that this is beyond the scope of Congress’s power,” Berger said. “I think that’s probably pretty unlikely to succeed since the Constitution gives Congress the authority to discipline the militia.”

Berger also stressed there could be concerns about this bill infringing on individual rights protected under the First and Second Amendments. Despite the challenges, he suggested that a narrowly written bill could withstand these constitutional tests.

There is a Second Amendment right to keep and bear arms, but it’s not an unlimited right and it does not include the right to keep and bear arms to try and overthrow the U.S. government, or even to try to assume governmental functions or supplant the government.

Eric Berger, professor of law

“There is a Second Amendment right to keep and bear arms, but it’s not an unlimited right and it does not include the right to keep and bear arms to try and overthrow the U.S. government, or even to try to assume governmental functions or supplant the government,” Berger said. “For the First Amendment freedom of speech, there is obviously important freedom of speech in this country and that does include the right to criticize the government and criticize the government strenuously, but it does not include the right to advocate or incite attempts to overthrow the government or to incite other illegal behavior.”

Berger acknowledged the current political challenges in passing such a bill.

“I think it’s not an exaggeration to say that contemporary Congress is pretty dysfunctional,” Berger said. “So, the odds of getting it through the Senate and especially the House right now given that Republicans control the House, is unlikely. Not impossible but pretty unlikely.”

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 [LAUREN TAYLOR]

ORGANIZED MILITIAS HAVE BEEN a part of America SINCE BEFORE IT’S INCEPTION. 

IN FACT – DURING THE AMERICAN REVOLUTION – MILITIAS WERE THE BACKBONE OF THE FORCES.

THEY WERE CALLED “MINUTEMEN” AND WERE groups of MEN – BETWEEN THE AGES OF 16 AND 60 – WHO WERE EXPECTED TO SERVE, KEEP ARMS AND TRAIN. 

EVERY TOWN WAS EXPECTED TO MAINTAIN AT LEAST ONE MILITIA, COMPRISED OF 60 MEN – AND WOULD SERVE AS THE IMMEDIATE DEFENSE DURING AN ATTACK. THEY WERE LEGAL and designed TO PROTECT THE STATE.

TODAY’S MILITIAS AREN’T REGULATED BY THE GOVERNMENT.

AS UNIVERSITY OF LAW PROFESSOR ERIC BERGER NOTES, TODAY’S SO-CALLED MILITIAS ARE VERY DIFFERENT FROM THOSE OF OUR NATION’S HISTORY  

[ERIC BERGER / EARL DUNLAP DISTINGUISHED PROFESSOR OF LAW, AT UNIVERSITY OF NEBRASKA AT LINCOLN]

“So in the 18th century, for context, militias usually were state-operated groups. They often directly answered to the government. So, the 18th century militia was a pretty different animal than contemporary or what one might call, militia groups.”

 [LAUREN TAYLOR] 

MILITIA GROUPS.

FOR YOU – WHAT COMES TO MIND?

FOR SENATOR ED MARKEY OF MASSACHUSETTS AND REPRESENTATIVE JAMIE RASKIN OF MARYLAND – MILITIA GROUPS ARE FAR-RIGHT EXTREMIST GROUPS LIKE THE PROUD BOYS AND THE OATH KEEPERS.

 SOME OF THEIR MEMBERS STORMED THE U.S. CAPITOL ON JAN. 6 2021 – THEY WERE DECKED OUT IN TACTICAL GEAR, breaking barriers, scaling walls and bursting into Senate chambers.

TRYING TO PREVENT CONGRESS FROM CERTIFYING THE 2020 PRESIDENTIAL ELECTION RESULTS.

ENRIQUE TARRIO, THE FORMER NATIONAL CHAIRMAN FOR THE PROUD BOYS, WAS CONVICTED OF SEDITIOUS CONSPIRACY AND SENTENCED TO 22 YEARS IN PRISON.

 OATH KEEPERS FOUNDER -STEWART RHODES-WAS CONVICTED FOR THE SAME – AND HE’S SERVING 18 YEARS. 

 HUNDREDS more RIOTERS HAVE BEEN sentenced FOR THEIR ROLES IN THE ATTACK AND HUNDREDS MORE REMAIN UNDER INVESTIGATION.

 ON THE THIRD ANNIVERSARY OF THE RIOTS —

THE TWO DEMOCRATIC LAWMAKERS INTRODUCED A BILL TITLED “PREVENTING PRIVATE PARAMILITARY ACTIVITY” 

ITS GOAL – TO FEDERALLY PROHIBIT PRIVATE MILITIA ACTIVITY.

RIGHT NOW – “ALL 50 STATES PROHIBIT PRIVATE, UNAUTHORIZED GROUPS FROM ENGAGING IN ACTIVITIES RESERVED FOR THE STATE MILITIA” ACCORDING TO GEORGETOWN LAW SCHOOL – AND THE LAWS DIFFER FROM STATE-TO-STATE.

SENATOR MARKEY AND CONGRESSMAN RASKIN WOULD LIKE TO SEE PARAMILITARY ACTIVITY BE CRIMINALLY PROSECUTED on the federal level SAYING STATE LAWS ON THE BOOKS NOW ARE OUTDATED, UNENFORCED, AND SOMETIMES, IGNORED.

THEY SAY THEIR PROPOSED BILL WOULD PROHIBIT ARMED MILITIA GROUPS FROM ORGANIZING AND CARRYING OUT THEIR MISSION – TO OVERTHROW THE GOVERNMENT. 

THE BILL WOULD PROHIBIT THE FOLLOWING…

 “PUBLICLY PATROLLING, DRILLING OR ENGAGING IN HARMFUL OR DEADLY PARAMILITARY TECHNIQUES”

“INTERFERING WITH OR INTERRUPTING GOVERNMENT PROCEEDINGS”

“INTERFERING WITH THE EXERCISE OF SOMEONE ELSE’S CONSTITUTIONAL RIGHTS”

“FALSELY ASSUMING THE FUNCTIONS OF LAW ENFORCEMENT AND ASSERTING AUTHORITY OVER OTHERS”

AND “TRAINING TO ENGAGE IN SUCH BEHAVIOR”

PROFESSOR BERGER SAY IF A BILL LIKE THIS WERE TO BECOME LAW – IT WOULD HAVE TO BE NARROWLY WRITTEN BECAUSE IT WOULD FACE THREE CONSTITUTIONAL CHALLENGES.

THE FIRST? THE ARGUMENT THAT THIS WOULD BE BEYOND THE SCOPE OF CONGRESS’ POWERS.

[ERIC BERGER]

“One would be to argue that this is beyond the scope of Congress’s power. I think that’s probably pretty unlikely to succeed since the constitution gives Congress the authority to discipline the militia.”

 [LAUREN TAYLOR] 

THE OTHER TWO CHALLENGES INCLUDE THE POSSIBLE INFRINGEMENT OF INDIVIDUAL RIGHTS PROTECTED UNDER THE FIRST AND SECOND AMENDMENTS.

[ERIC BERGER]

“There is a second amendment right to keep and bear arms but its not an unlimited right and it does not include the right to keep and bear arms to try and overthrow the U.S. government or even to try to assume governmental functions or supplant the government.”

“For the First Amendment freedom of speech, there is obviously important freedom of speech in this country and that does include the right to criticize the government and criticize the government strenuously, but it does not include the right to advocate or incite the tempts to overthrow the government or to incite other illegal behavior.”

[LAUREN TAYLOR] 

SO – THE “PREVENTING PRIVATE PARAMILITARY ACTIVITY” ACT COULD BECOME REALITY.

[ERIC BERGER] 

“It depends hat the bill says, the specifics of the language would matter a lot and how the Department of Justice chooses to prosecute cases under it, but again, I think if the bill were framed narrowly, it could probably survive both of those constitutional challenges.”

 [LAUREN TAYLOR]

HOWEVER – PROFESSOR BERGER SAYS – IT’S UNLIKELY CONGRESS WOULD BE ABLE TO PASS THE BILL AT THIS TIME.

[ERIC BERGER]

“I think it’s not an exaggeration to say that contemporary Congress is pretty dysfunctional. So the odds of getting it through the senate and especially the House right now given that Republicans control the House, is unlikely. Not impossible but pretty unlikely.”