Several states are moving to enact legislation cracking down on paramilitary organizations after a years-long rise in organized political violence across the United States.
In Oregon—where members of movements such as Antifa have regularly clashed with right-wing militant groups in cities like Portland—lawmakers recently proposed legislation to expand the state’s definition of “civil disorder” in terms of unlawful paramilitary activity, both in response to recent activity in the state as well as incidents like the right-wing takeover of the state’s Malheur National Wildlife Refuge in 2016.
In New Mexico, Democratic lawmakers recently introduced the Unlawful Private Paramilitary Activity Act, a sweeping bill banning paramilitary organizations from performing drills with weapons in a group of three or more people. The measure also outlaws civilian-led “security” functions of groups like the Oath Keepers, which were involved in the assault on the U.S. Capitol on January 6, 2021.
And in Vermont on Monday, Republican Governor Phil Scott signed legislation making paramilitary training illegal in Vermont. The penalty is as high as five years in prison for anyone found guilty of engaging in militia-style organizations like one operating in the town of West Pawlet, where a resident allegedly harassed and threatened neighbors while teaching classes focused on “professional gunfighting.”
“We’re in a different world than we were in even five or 10 years ago, and there are forces looking to destabilize civil society. We can’t deny it anymore,” the bill’s sponsor, Senate President Pro Tempore Phil Baruth, told news outlet VTDigger after the legislation was signed into law. “So this bill is a way of saying, ‘Not now, not here, not ever.’”
The recent spate of bills can be seen as a direct response to growing paramilitary activities around the country.
As of 2020, 29 states had enacted statutes that prohibit groups from organizing as private military units without the authorization of the state government. Twenty-five states had statutes criminalizing activities like teaching others how to use firearms, explosives or techniques capable of causing injury or death with the intent of causing further civil disorder.
However, a 2020 survey by the Institution for Constitutional Advocacy and Protection at the Georgetown University School of Law found that each state has at least one provision enshrined in law that could be applied to the type of paramilitary and private militia activity seen on display in eastern Oregon or during the “Unite the Right” rally in Charlottesville, Virginia, in 2017. These range from laws against people impersonating security forces or members of the military to other measures outlawing private militaries, as in Arizona and Wyoming.
Many militia movements operate under their belief in the U.S. Constitution’s commitment to a “well-regulated militia.” But the U.S. Supreme Court ruled in 1886—and again under a conservative majority in the 2008 case District of Columbia v. Heller—that the well-regulated militia mentioned in the Second Amendment is not to be autonomous but under the purview of the government.
“Like most rights, the right secured by the Second Amendment is not unlimited,” conservative Justice Antonin Scalia wrote in an opinion for the Court’s majority at the time.
That hasn’t stopped militias from forming, however.
In addition to activities by groups like the Oath Keepers—whose founder, Stewart Rhodes, currently faces as much as 25 years in prison for his role in the January 6 riot—numerous examples of militia-led political violence have been documented around the country after a decline that began in the late 1990s. This has drawn attention from members of Congress and state legislatures alike.
In addition to alleged plots to kidnap figures like Michigan Democratic Governor Gretchen Whitmer, groups like the Proud Boys have been involved in political altercations around the country, while armed men have become a regular feature at protests nationwide.
Data compiled by scholars and groups like the Center for Strategic and International Studies show a marked increase in the public’s acceptance of political violence as a tool for societal change. The election of Donald Trump—and the January 6 riot itself—represents something of an inflection point in the conversation.
Data also backs that assessment. Research by the Carnegie Endowment for Peace found the number of threats against members of Congress investigated by Capitol Police jumped from 902 in 2016 to nearly 10,000 just five years later. In the 11 weeks between the election and Inauguration Day in 2021, armed actors at protests grew by 47 percent, compared with the 11 weeks before the election. Organized paramilitary groups grew by as much as 96 percent.
The federal government has taken notice as well. In a March 2021 threat assessment, the director of national intelligence’s office identified militia violent extremists alongside racial or ethnic-motivated hate groups as the most pressing domestic extremist threat facing the country.
“America faces a political violence problem that, though violence is currently low, is already causing serious damage to our democracy,” Rachel Kleinfeld, a senior fellow in the Democracy, Conflict and Governance Program at the Carnegie Endowment for International Peace, told the House’s January 6 committee in March 2022.
“Even if only a small percentage are likely to act, they constitute tens of millions of individuals,” she added. “Numbers this large put the country at risk for stochastic terrorism—a situation in which it cannot be predicted who will respond with violence when a political leader calls for it, but it is nearly statistically certain that someone will.”
Whether legislation outlawing militia activity will have an impact is a different story. While bills like Vermont’s were tailored to root out a specific organization that could not be touched by existing state law, others—like Oregon’s and New Mexico’s—could be seen as overly broad, potentially doing little to combat the issue they seek to address.
In New Mexico’s case, the law could be seen as an infringement on people’s Second Amendment rights, while in Oregon militias “usually see themselves as working alongside law enforcement and as never being dangerous to law enforcement,” Amy Cooter, an expert on right-wing extremism and a Middlebury College professor, told Newsweek.
She continued: “Even the more extreme groups believe themselves to not be a danger to officers who are, in their opinion, following the Constitution and lawfully conducting their jobs. That’s precisely the bigger issue with some of the existing legislation that Georgetown has identified—these groups see various reasons that a given statute does not actually apply to them or their behavior.”
Cooter said that in some cases “there’s at least room to make that argument, legitimately, given how the statutes are written versus how these groups are often organized. Hence the need for more specific legislation in at least some places.”
While not a comprehensive solution, well-written laws could help to combat those groups from ever forming, at least to some degree, she said.
“I do think that such laws and coverage of them have the possibility of a small deterrent effect,” Cooter said. “People who are not yet affiliated with a militia world group may hear about this and have doubts about joining because of the possible legal consequences but also because…of effectively becoming illegal.
“Short of legal consequences, some people may start to believe that such groups are inherently criminal or otherwise nefarious and decide not to look into them for that reason,” she said.