MILITIA - HISTORY AND LAW FAQ
Web Version 2.0
Part 1. -
Introduction & Summary Material
Part 5. - Legal Issues for the New Militia
5.0 This FAQ has shown that nothing in the Constitution or state and federal law either authorizes or advocates the actions of the new militia.
A. But that doesn't mean their actions are illegal. Whether or not their actions are illegal depend on:
These laws have been always been found constitutional, although there have been few reported cases. The most important cases are Presser v.Illinois in 1886 and Vietnamese Fishermen v. KKK in 1982. Both cases are discussed extensively below. The view that these laws are not constitutional is also examined below.
Assuming these laws are valid, the differences in state law and the wide variety of behavior of individual militia units means that many new militia units are not violating the laws of their state. And finally, as long as the militia mostly talk, there may not be much legal concern about their behavior, even if it is illegal. Prosecutors may not lay charges, especially if they have doubts about local juries convicting. However, if circumstances change, the public mood and hence that of prosecutors can quickly change.
5.1 What concerns should a member of a new militia have, even if they live in a state without laws against unauthorized military or paramilitary organizations?
A. The new militia have no rights or privileges over and above those of the general public. The criminal law looks carefully at acts by organized groups. It takes very little to find a person criminally liable when others in the same organized group take part in criminal activity.
There is also the potential for being sued in the civil courts and held liable for punitive damages in addition to any compensatory damages for any actions by members of a militia. This danger of lawsuit comes not only from civilians, but also from other new militia members. As Carl D. & Nancy E. Haggard say in Soldier of Fortune Magazine, May 1995:
In other words, militia training can be dangerous.
5.2 Which states have laws regulating or prohibiting unauthorized paramilitary organization?
A. The New York Times (5/10/95) states:
The laws clearly distinguish paramilitary groups from Boy Scouts and hunting clubs organized for lawful purposes. They have been used to stop the KKK and other white supremacist organizations in the early 80's, and against the Texas Emergency Reserve in 1982. States without anti-militia OR anti-paramilitary laws are: Hawaii, Alaska, Utah, S.Dakota, Wisconsin, Ohio, Vermont, Delaware. [This list is not definitive - check your own state law]
The state laws fall into a number of categories. Some states have no laws regarding unauthorized military groups. Some, such as Connecticut, require the groups to register with the state and annually file a membership list. Others ban unauthorized military organizations regardless of the purpose of the organization. Some states only ban these organizations if the purpose of the group is meant to or likely to produce civil disorder. Many of these same states prohibit parading by unauthorized armed groups through towns or cities.
Here is a listing of the statutory sources for each state law.
States with Both Anti-Militia and Anti-Paramilitary Training Laws (7)
-Florida. FLA. STAT. ANN. ch. 870.06, 790.29. -Georgia. GA. CODE ANN. ss 38-2-277, 16-11-150 to -152. -Idaho. IDAHO CODE ss 46-802, 18-8101 to -8105. -Illinois. ILL. REV. STAT. ch. 1805, para. 94-95. -New York. N.Y. MIL. LAW s 240. -North Carolina. N.C. GEN. STAT. ss 127A-151, 14-288.20. -Rhode Island. R.I. GEN. LAWS ss 30-12-7, 11-55-1 to -3.
States with Anti-Militia Laws Only (17)
-Alabama. ALA. CODE s 31-2-125. -Arizona. ARIZ. REV. STAT. ANN. s 26-123. -Iowa. IOWA CODE s 29A.31. -Kansas. KAN. STAT. ANN. s 48-203. -Kentucky. KY. REV. STAT. ANN. s 38.440. -Maine. ME. REV. STAT. ANN. tit. 37-B, s 342.2. -Maryland. MD. CODE ANN. art. 65, s 35. -Massachusetts. MASS. GEN. L. ch. 33, s 129-132. -Minnesota. MINN. STAT. s 624.61. -Mississippi. MISS. CODE ANN. $ 33-1-31. -Nevada. NEV. REV. STAT. s 203-080. -New Hampshire. N.H. REV. STAT. ANN. s 111:15. -North Dakota. N.D. CENT. CODE s 37-01-21. -Texas. TEX. GOV'T CODE ANN. s 431.010. -Washington. WASH. REV. CODE s 38.40.120. -West Virginia. W. VA. CODE s 15-1F-7. -Wyoming. WYO. STAT. s 19-1-106.
States with Anti-Paramilitary Training Laws Only (17)
-Arkansas. ARK. CODE s 5-71-301 to -303. -California. CAL. PENAL CODE s 11460. -Colorado. COLO. REV. STAT. s 18-9-120. -Connecticut. CONN. GEN. STAT. s 53-206b. -Louisiana. LA. REV. STAT. ANN. s 117.1. -Michigan. MICH. COMP. LAWS s 750.528a. -Missouri. MO. REV. STAT. s 574.070. -Montana. MONT. CODE ANN. s 45-8-109. -Nebraska. NEB. REV. STAT. s 28-1480 to -1482. -New Jersey. N.J. REV. STAT. s 2C:39-14. -New Mexico. N.M. STAT. ANN. s 30-20A-1 to -4. -Oklahoma. OKLA. STAT. ANN. tit. 21, s 1321.10. -Oregon. OR. REV. STAT. s 166.660. -Pennsylvania. 18 PA. CONS. STAT. s 5515. -South Carolina. S.C. CODE ANN. s 16-8-10 to -30. -Tennessee. TENN. CODE ANN. s 39-17-314. -Virginia. VA. CODE ANN. s 18.2-433.1 to -433.3.
5.3 Is there a federal law against unauthorized military organization?
A. Not at the present time, although in May, 1995, one was introduced into Congress:
5.4 What are the reasons for stating that these anti-militia laws are unconstitutional?
A. Here is one view by someone who believes that these laws are unconstitutional, from "A Well-Regulated and Legal Militia," by Carl D. & Nancy E. Haggard, Soldier of Fortune Magazine, May 1995:
"Case law from the Supreme Court defines where the right of association begins and ends. Presser v. Illinois contains a good definition of militias. U.S. v. Verdugo-Urquidez 494 US 259(1990) describes what the Second Amendment means by a "right of the people." NAACP v. Alabama (discussed below) is the premier case on freedom of association. Brandenberg v. Ohio 395 U.S. 444 (1969) holds that the Ku Klux Klan may not only associate as an organization, but members may say just about whatever they want no matter how cross and grumpy it may make the thought police.
"The case is easily made that there is a constitutional right to associatewith others for lawful purposes, including training with lawfully possessed arms in a place where one has the right to be. A few states have militia statutes that purport to prohibit citizens from associating as a "military organization or company." Such legislation either does not apply to organized civilian militias or is clearly unconstitutional in light of legal opinions on freedom of association.
"...At issue is not whether one has a right to keep and bear arms, but whether one may actually exercise that right in unison with others. There is no question that it is an individual right and not a states-only right. Even if there were not several clearly defined U.S. Supreme Court cases, there is ample authority for citizens' militia to be found in common law. The lessons validating the right to an armed citizenry are numerous and compelling. From these and others flow a co-equal right of an armed citizenry to organize for lawful purposes.
"The only clear and present danger to the government from militia activity is that armed citizens trained in the military arts are extremely frustrating to the goal of total enslavement of the population."
There are some problems with this opinion. Under the current case law on the Second Amendment, it only applies to federal laws. So the Second Amendment is irrelevant to the state anti-militia laws. Granted, state constitutions could invalidate these state laws.
However, anti-militia laws have been introduced into Congress and it is interesting to see how they would interpret the the Second Amendment. The current interpretation of the 1939 Supreme Court opinion in U.S. v. Miller by the lower federal courts is that is a restriction on the ability of the federal government to deny the states a 'well-regulated' militia(But see U.S. v. Tot). This 'well-regulated' militia has been expressly held to have nothing at all to do with either a citizens' militia or the 'unorganized militia': U.S. v. Warin, 530 F. 2d. 103 (6th Circuit,1976) and U.S. v. Oakes, 564 F. 2d 384 (10th Circuit,1977). Accordingly, the Second Amendment alone would not make a federal law unconstitutional.
The last two paragraphs describe the current case law, which is entirely separate from whether these interpretations of the Second Amendment are 'correct' or whether the U.S. Supreme Court might decide differently in a future case. As to the 1990 case of U.S. v. Verdugo-Urquidez cited by the Haggards; at most it suggests that the U.S. Supreme Court might take a different view of the Second Amendment, if it were ever necessary to a decision. Without Second Amendment support, the issue of association for lawful purposes then becomes much more difficult. Weapons use and training then become areas where it is much easier for the state to regulate.
The Brandenberg case holds that simply advocating unpopular views is not illegal. But the issue with the anti-militia laws is not the views they advocate, but their behavior. There are many 'militia' groups that have not formed military organizations nor are doing armed training. These groups would not be caught by these laws.
In the NAACP v. Alabama case 357 U.S. 454 (1957),the underlying issue was whether Alabama could force the NAACP out of Alabama. The state had chosen to use a corporation registration statute as the method. The state alleged that the NAACP was not complying with a state law and sought an injunction to stop the NAACP from operating in Alabama. The NAACP, according to the state:
The injunction was not only granted without notice to the NAACP but it forbid the NAACP from filing the papers to fulfill the state law. When the NAACP tried to get the order lifted, the State got an order requiring the NAACP to provide its membership list as part of the discovery procedure.
After deciding they could rule on the merits of the case, the Supreme Court began:
"It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process clause of the Fourteenth Amendment, which embraces freedom of speech...Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."
The Court found that Alabama had no justification for seeking the membership list and it therefore failed the 'closest scrutiny' test.
However, in the only recent case on militias (see 5.10) the court involved had little difficulty in rejecting freedom of association or freedom of speech arguments on behalf of armed, disciplined paramilitary groups.
5.5 The laws against private armies do not apply to the new militia. These laws came about as a result of the Ku Klux Klan's attempts to create a "militia" (I use quotation marks because the KKK's goal in organizing was to subvert the laws of the United States under the Constitution, thus making it illegal) in the aftermath of the Civil War. So states began to outlaw private armies. However, since the [new] militias are not private armies, but in fact are regulated to certain extent in that they may be federalized, these laws do not affect them.
A. Laws against unauthorized military organizations or armed parading did arise out of the post-civil war period and sometimes were designed to stop the activities of the KKK. In other states, such as Illinois, they were enacted to stop the formation of unofficial armed groups in the labor disputes of the 1870's.
However, there is no legal reason why they cannot be used against the new militia. These laws do not concern themselves with the reason for the activity, whether it is intimidating Vietnamese fishermen in Texas or forming an armed group to become "extremely frustrating to a [government] goal of total enslavement of the population." Obviously, the more blatant the actions of the group, and the more it involves outsiders, the easier it is to prove that they are violating the law. And the more likely they are to be prosecuted.
5.6 Typical state law against unauthorized paramilitary activity.
New Hampshire Statutes
5.7 Many state constitututions have 'Second Amendment' type articles very different from the federal Constitution. Do these state constitutions make the state laws invalid?
A. This may vary from state to state. In Texas, in North Carolina, and in Illinois, the state constitution has not been an issue.
5.8 Can a state prohibit unauthorized military organizations for actions that they take on private land?
A. They have. The Texas case (at 5.10) was concerned in part with activities on private land.
5.9 In the 1886 case of Presser v. Illinois, 116 U.S. 615. the U.S. Supreme Court found constitutional an Illinois law against unauthorized military organizations and unauthorized armed parading. In doing so, the Court discussed the First and Second Amendments.
A. Herman Presser was indicted in September, 1879 for violating the Illinois law that stated:
At this time, under Illinois law those subject to militia duty were those defined in the 1792 Uniform Militia Act. However, as was common, only the regular organized volunteer militia served. It was limited by statute to 8,000 men and officers. The "license of the Governor" means that the Governor could grant permission to unauthorized groups.
Presser belonged to a private organization called Lehr und Wehr Verein, a corporation organized under Illinois law in 1875 for the purpose of "improving the mental and bodily condition of its members...Its members shall therefore obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in military and gymnastics exercises."
The Court determined that the Illinois law was not made invalid by the federal militia laws.
Then the Court disposed of the Second Amendment argument by saying:
The Court could have stopped there with its discussion of the Second Amendment and these laws. In fact, this statement means that the Second Amendment cannot be used against either federal or state anti-militia laws.
However, the Court then nails down the issue as far as state law is concerned. In 1879, the Court followed the the non-incorporation doctrine that held the restrictions of the Bill of Rights applicable to the federal government alone, not to the states. Nonincorporation has been abandoned for many of the rights under the Bill of Rights, but under current case law still applies to the Second Amendment.
The Court goes on:
The next paragraph is often misinterpreted. The context is that Illinois must comply with federal law, in this case the 1792 Uniform Militia Act. The state cannot restrict the militia beyond the limits set by federal law. As the federal law changes, within its constitutional boundaries, the state law must also change. The issue is that the state (surprise, surprise) cannot interfere with the federal right to 'provide for the organizing, arming and disciplining' of the militia.
The Court also discussed the First Amendment, again in terms of the nonincorporation doctrine. That is, the only free speech issue for the Court dealt with the federal government. Since the Presser case, the First Amendment has been held to apply to the state governments. However, much the same language could be used to discuss whether this state law is valid when state laws must also meet the freedom of assembly test. Part of this passage, is quoted 100 years later in the Vietnamese Fisherman case.
"The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without and independent of an Act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military operation and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.
"It cannot be successfully questioned that the State governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States; and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the State is necessary to the public peace, safety and good order. To deny the power would be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine." [pp 619-620]
The last paragraphs quoted make clear that the Court did not, as some have argued, deal only with 'unauthorized armed parading.' The Court was equally concerned and found equally valid the provisions dealing with 'unauthorized military company or organization.'
5.10 In the early 1980's large numbers of Vietnamese fishermen were competing with local Texans for the shrimp fishery. Things got very rough and the Ku Klux Klan became involved in acts of intimidation against the Vietnamese fishermen. A class action suit was brought, that amongst other things sought an injunction against the KKK's military organization for violating Texas law Article 5780(6) against unauthorized military organizations and unauthorized armed parading. The State of Texas intervened to support the application for the injunction, which was granted. In doing so, the Court provided some definitions for the term 'military organization.'
A. The following excerpts are from Vietnamese Fishermen's Ass'n v. Knights, Etc. 543 F. Supp 198 (1982) opinion of Federal District Judge McDonald.
Article 5780(6) provides in full:
"The Texas Emergency Reserve (TER) is a military operation. Plaintiffs' expert witness, Mr. Walter Thomas Wilkinson, testified ...that the TER had all the elements of a military organization which he defined as "any unit with command structure, training and discipline so as to function as a combat or combat support unit"...The command structure was defined by Mr. Wilkinson as the presence of a leader who takes responsibility and delegates responsibility to subordinates. He describes discipline as the ingredient which enables a military unit to function, and he defined military training as training in the "art of war, the functions of a soldier," including combat and support roles.
"As noted in the Court's prior opinion, the Court has viewed four hours of film which includes footage of defendant Beam instructing persons dressed in military type uniforms in the art of psychological warfare, ambush and counterambush, reconaissance patrol and other types of military movements...Mr. Wilkinson testified that after viewing the videotape he considers that Beam is training a viable military organization for combat as opposed to survival." [pp.203-204]
The Court then determines that the TER is the military wing of the KKK and then comes to the conclusions of law.
"The Court's research has disclosed no authority for the proposition that military operations, of the type in issue here, are protected by the First Amendment rights of free speech and freedom of assembly. As a preliminary matter, it is not clear that defendants' military activities involve 'speech' at all, as distinguished from conduct.' While the line between these two is not alway clear, the Supreme Court has explicitly endorsed the distinction...
"...Even if defendants' military operations were characterized as "speech" [which the Court denied], defendants would still not be able to be avail themselves of First Amendment protection [their actions of intimidation were held to be "fighting words" by the Court].
"Even if the Court were to assume that the defendants conduct was an exercise of free speech, this conduct could be properly regulated under the standards of U.S. v O'Brien 391 U.S. 367 (1968). Under O'Brien:
"Here, the State of Texas has attempted to regulate the type of military 'communication' engaged in by defendants. By virtue of [the Texas statute], the State of Texas has statutorily prohibited the very conduct which plaintiff urge the Court to enjoin. The State has the power to regulate the formation of private armies. In Presser v. Ilinois, the Supreme Court declared that:
"An injunction against defendants' military activities does no violence to the Second Amendment. By its express language, that Amendment prohibits only such infringement on the bearing of weapons as would interfere with "the preservation or efficiency of a well regulated militia" organized by the State [Cites U.S. v. Miller (1939) and U.S. v. Birmley (1976)]. Here, the State of Texas, which absent contrary federal action is "the sole judge" of the steps to be taken to maintain its militia [cites Hamilton v. Regents, discussed in this FAQ at 4.16] has itself statutorily prohibited the operation of private armies...In short, the Second Amendment does not imply any general constitutional right for individuals to bear arms and form private armies." [p.210]
The Court then discusses the Texas statute and determines that it makes illegal unauthorized : "(1)individuals associating as a military company; (2) individuals associating as a military organization; and (3) individuals parading in public with firearms in any city or Town of Texas." [p.217]
The Court then went on to grant an injunction against the TER and the KKK as follows at p. 220:
a) Continuing to maintain or to associate themselves into private military or paramilitary companies or organizations, including, but not limited to, the Texas Emergency Reserve; b) Carrying on military or paramilitary training, including all forms of combat and combat-related training; c) Parading in public on land or water, with firearms in any city or town of the State of Texas; and d) Engaging in any other activities which have as their purpose or reasonably forseeable effect the use or threatened use of military or paramilitary force to infringe upon the civil rights of the plaintiff class."
Note that the injunction applies to each part of the Texas statute, maintaining or associating as a military company or organization or armed parading.
5.11 Are there any groups that could be charged under the state laws?
A. The easiest groups would be those in Texas because of the Vietnamese Fishermen case. Among groups that are probably violating the state law are the Texas Light Infantry (TLI). It should be noted that a Federal District Court decision is not binding on a state court, it is merely persuasive. The District Court's criteria for a military organization are "any unit with command structure, training and discipline so as to function as a combat or combat support unit." Here is a description of the TLI from the April 1995, Soldier of Fortune Magazine:
"Training activities for the various TLI units include field operations, map and compass instruction, night tactical problems and live-fire exercises. An urban assault training house is also used during Military Operations in Urban Terrain tests. All units train a minimum of once a month..."
5.12 What kind of a reception are these groups likely to find from judges if they ever get to court?
A. They may not find the courts very friendly. Put bluntly, unauthorized self-selected paramilitary organizations are considered by the courts to be a danger to American democracy and the Constitution. Accordingly, the courts will work hard to avoid finding these laws unconstitutional.
Re Application of Cassidy shows why the courts have taken this view. In Re Application of Cassidy 51 NYS 2d 202 (1944), affirmed by the New York State Court of Appeal , the court held that Cassidy was unfit to become a lawyer in New York state. It should be noted that the actual decision in Re Cassidy might be different today, to the extent that the court's decision was based on what Cassidy advocated (see Brandenberg v. Ohio above at 5.4).
"Conceding that the applicant was sincere in his avowed purpose of preparing to suppress an imminent insurrection, the means which he advocated were directly contrary to the State [New York] and federal Constitution [authorities deleted] The plain and inevitable effect of the consummation of the applicant's plans or beliefs would be to displace our constitutional form of government and to permit him and his associates to arrogate to themselves the powers of the government. No matter how altruistic the claimed motive may be, such a plan is illegal.
"...Before the Committee the applicant stated that the armed units he advocated were intended to be placed at the disposal of the government in suppressing a threatened insurrection. Conceding the bona fides of such belated expression of intention, the very fact that he advocated the creation of such a private army demonstrates his unfitness to become a member of the Bar of this State. There can be no justification for the organization of such an armed force. Its existence would be incompatible with the fundamental concept of our form of government. The inherent potential danger of any organized private militia, even if never used or even if ultimately placed at the disposal of government, is obvious. Its existence would be sufficient, without more, to prevent a democratic form of government, without coercion, and in accordance with constitutional mandates." [pp.203-204]