Armed Right-Wing Groups Aren’t ‘Militias’—We Need to Stop Calling Them That

2020. Louisville, Kentucky. UNITED STATES. A right-wing group gathers in Jefferson Square, the site of the Breonna Taylor Memorial in Louisville. Angry but ultimately non-violent confrontations with BLM and NFAC ensued before the right wing militia withdrew.
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A right-wing group gathers in Jefferson Square, the site of the Breonna Taylor Memorial in Louisville, Kentucky, on September 5, 2020. Photo Credit - Peter van Agtmael - Magnum Photos for TIME
Last month, since 13 men were charged with conspiracy to kidnap the Michigan governor, the word “militia” has appeared on thousands of headlines and television news reports. The Detroit News: "The government says it has foiled the militia conspiracy to kidnap Whitmer." NPR: "The FBI says the militia were planning to kidnap the Michigan governor." ABC-12: "Militia officers charged with kidnapping Whitmer in prison." But all of these headlines are wrong, and almost every case in which journalists - as well as politicians and even law enforcement agencies - used the word militia has been wrong. Why? Because there is no legal private paramilitary militia.
But don't take it from me, this is Mary McCord, a former Justice Department officer who is the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University: “The use of the word 'militia' when you talk about anything other than a state militia like the National Guard is just wrong. Using this term without making the world “illegal” suggests that there is some constitutional authority or legitimacy for its existence that does not exist. "
Let's say it again, and now let's make sure governors and attorneys general and law enforcement agencies watch out: All 50 states ban private militias. You are illegal. Such organizations were banned from the Militia Act of 1903 and then changed by the National Defense Acts of 1920 and 1933. This legislation stated that all "fit for work who could be called upon to defend the state" were now members of the United States National Guard, which is part of the reserve components of the US Army and Air Force. You are the militia. Period.
For the media, be sure to use the word militia for the National Guard, but not for vigilante groups named Oathkeepers or III% he or the Wolverine Watchmen or any other name. Call them what they are: gangs, extremist groups, criminals, even domestic terrorists. You can be sure that if these men who disguise themselves with guns were blacks or Muslims, people wouldn't call them militias. These groups use the name militia as a cover for their often violent and anti-democratic views. The term recalls the Minutemen of the Revolutionary War, civil soldiers who fought against the British. But these guys are not heroes; You don't deserve this historical coverage.
In the middle of a national pandemic, in a nation marked by protests against social justice, with historically high unemployment and controversial presidential elections in the next few days, we are in a moment that experts say is a perfect starting point for intimidation attempts is violence by illegal militias. "The threat level is pretty high," says Jared Holt, who oversees extremist groups at the Atlantic Council. According to the Southern Poverty Law Center, there are around 180 active anti-government paramilitary groups in the US, some claiming thousands of members and some only a handful. Their number is growing.
Election day could be their Super Bowl for these illegal militias. "Local officials, law enforcement and voters," McCord says, "need to know that groups of armed people under federal or state law have no legal authority to show up at polling stations that claim to be protecting or patrolling the elections." Sometimes, says Holt, law enforcement agencies understand these illegal militias. These groups can say they are protecting the public, they can say they are there to help law enforcement - but they are not. They can and should be removed by judicial authorities such as the state militia proper.
Oh, but doesn't the 2nd amendment protect them? Illegal militias always cite the second amendment as the DNA of their creation and the justification for their continuation. That is also wrong. A “well-regulated militia” in the sense of the second amendment to the constitution means exactly that: it is regulated by the state. In 1886, and in the 2008 Heller ruling by Justice Scalia, the Supreme Court expressly permitted states to ban “private paramilitary organizations”. And they do. There are many constitutional debates on the second amendment - this is not one of them.
The first change doesn't offer them much protection either. The freedom of speech and assembly of the first amendment does not conflict with the gun law of the second amendment. Yes, burly white men in camouflage can own weapons, they can freely express their opinion that the federal government will confiscate their weapons, they can "peacefully gather" to protest against this idea, they just cannot swing their weapons and people intimidate, especially voters.
Who are these illegal militias? They are, as Barton Gellman said in his landmark 2010 cover of white extremist groups, "twisted patriots." They are predominantly white men who adopt images of the War of Independence in order to cover up their anti-government views. What they have in common is the idea that the federal government is tyrannical and is not only taking away its weapons, but also its rights. Many claim that the 16th amendment that created federal income tax is unconstitutional. These groups skyrocketed in the 1990s after the federal government launched sieges in Ruby Rudge, Idaho and Waco, Texas. However, after the Oklahoma City bombing in 1995 that killed 168 people, its appeal weakened.
The event of the modern illegal militia movement, according to Gellman's story, was the election of the first black president. Disinformation and conspiracy theories flourished: Obama would declare martial law. Obama would confiscate all weapons. Obama would initiate an international takeover of America. These groups saw Barack Obama not only as a black man, but also as a foreigner, as aliens, un-American and not as this country. This belief was sustained and accelerated by the natal movement, the main promoter of which was none other than Donald J. Trump.
Trump's role in the resurgence of illegal militias is unmeasurable, but according to Holt and McCabe, he's seen as a kindred spirit. In a new study by the Armed Conflict Location & Event Data Project, a non-governmental research group, it says: "In the US, the militia movement has fundamentally reoriented itself from the large-scale anti-federal government to supporting a candidate." That candidate is Donald Trump. When Trump "LIBERATE MICHIGAN!" Tweeted; when he said the proud boys should "stand back and stand by"; When expressing sympathy for Kyle Rittenhouse, the 17-year-old vigilante accused of killing two demonstrators in Kenosha. When he smiled as his supporters "lock her up" cheered Governor Whitman - after the act of kidnapping was revealed - he is seen as an inspirational figure and cheerleader for violence.
These groups were also boosted by George Floyd's protests, which is ironic. George Floyd's demonstrators also protest against the tyranny of state power against a minority. But the narrative that Holt says seems to be motivating them now is online disinformation about a violent “left” reaction in the event of a Trump victory. In the case of a controversial election, Holt says, "Your tone is a tone of willingness."
What can and should states do in light of the upcoming election days and a possible uncertain or controversial outcome? It is a foundation of our civil law that the government - and only the government - can legally and legitimately use force to maintain public safety. Every state has a provision in its constitution that allows it to prohibit paramilitary activities that lead to intimidation, violence and chaos. Intimidating elections is illegal. "Local authorities in all 50 states," says McCord, "should know that the law enables them to restrict paramilitary activities during public rallies and elections while upholding the right to freedom of expression and peaceful assembly."
You have to do that. That is real law and order.

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