By Jonathan Backer
Earlier this month, federal and state authorities charged 13 members of a private militia with plotting to kidnap Michigan Gov. Gretchen Whitmer. According to the federal criminal complaint, they laid the groundwork for their scheme in Cambria, Wis., where they conducted firearms training, combat drills, and attempted to create an improvised explosive device. Had the group’s scheme succeeded, they planned on taking Whitmer to Wisconsin for a show trial.
The Whitmer plot follows quickly on the heels of militia activity in Kenosha in the aftermath of the Jacob Blake shooting. When protesters took to the streets, various private militias coordinated plans on social media to descend upon downtown Kenosha for the ostensible purpose of “protecting” persons and property. Predictably, the evening ended in tragedy, as one member of the militia milieu, Kyle Rittenhouse, opened fire on protesters, killing two and injuring another.
These two episodes were not fated to happen. Legal tools exist that could have prevented these private militias from endangering Wisconsin residents. Private militias are illegal in all 50 states. Forty-eight state constitutions, including Wisconsin’s, explicitly outlaw private militia groups by requiring that all military forces in the state be in “strict subordination” to civil authority. These constitutional provisions reflect the commonsense principle that private and unaccountable groups do not get to decide for themselves when to use or project the ability to use force.
Indeed, strict subordination clauses buttress each state’s finely reticulated framework governing military forces. In Wisconsin, for example, the state constitution provides that the governor is the commander in chief of the state’s militia (i.e., its military forces). As such, only the governor or his designee is authorized to call the state’s militia into active service. The Legislature is the entity authorized to determine the composition of the state’s militia and to provide for its organization and discipline. These legal provisions would be superfluous if private militias could self-activate, answering to no one but themselves.
Because Wisconsin’s strict subordination clause confirms that the state’s militia is the only game in town when it comes to organized military force, it can be a powerful tool to neutralize the threat of private militias.
In 2017, heavily armed militias and alt-right organizations terrorized the residents of Charlottesville, Va., during the “Unite the Right” rally where one counter-protester was killed and 19 others injured. The City of Charlottesville responded to this tragedy by filing suit against the rally organizers, relying in part on Virginia’s strict subordination clause.
After a state court confirmed the viability of the plaintiffs’ legal theories, each of the defendants entered consent decrees barring them from returning to Charlottesville to engage in paramilitary activity. A similar lawsuit currently is pending in Albuquerque, N.M., where District Attorney Raúl Torrez is using his civil authority to enforce his state’s strict subordination clause against a militia that interposed itself between protesters and counter-protesters at a demonstration this past June where an individual opened fire and injured a protester.
In addition to strict subordination clauses, 29 states have criminalized private military units. In Minnesota, for example, it is a misdemeanor for individuals to “associate themselves together as a military company with arms.” Twenty-five states criminalize paramilitary activity. For example, it is a felony in Michigan to teach, demonstrate, or assemble to receive training concerning “the use, application, or construction of any firearm, or any explosive or incendiary device” for use in civil disorder.
Although private militias attempt to argue otherwise, their conduct is not protected by the Second Amendment. As my colleague Mary McCord recently wrote, the Constitution’s framers adopted the Second Amendment to address concerns that a standing army could lead to tyrannical rule. As an alternative, the amendment provided for the arming of citizens so that they could serve as part of a “well regulated Militia” subordinate to civil authority. State constitutional and statutory schemes prohibiting private militias and paramilitary activity are therefore completely consonant with the Second Amendment. The Supreme Court said as much in the 1886 decision Presser v. Illinois, which upheld Illinois’ antiparamilitary laws. Such laws, the Court held, “do not infringe the right of the people to keep and bear arms.” The Court reaffirmed Presser in its 2008 decision District of Columbia v. Heller, which held that although the Second Amendment guarantees an individual right to bear arms for self-defense, it “does not prevent the prohibition of private paramilitary organizations.”
In addition to prohibitions on private militias and paramilitary activity, other laws criminalize the unauthorized exercise of law enforcement authority — conduct in which private militias often engage. For example, it is a felony in Wisconsin for a private individual to falsely assume the duties of a public officer. Under that statute, the militia members purporting to be “protecting” property against looting in Kenosha this past August could have been arrested for usurping law enforcement’s role before blood filled the city’s streets.
And as concerns grow concerning the possibility that private militias might deploy to polling places on Election Day, law enforcement should take note that voter intimidation is a felony in Wisconsin. Philadelphia District Attorney Larry Krasner has made clear his intention to enforce Pennsylvania’s voter-intimidation laws should private militias interfere with the electoral process. Wisconsin should follow his lead.
With the numerous tools available to rein in private militias, the recent uptick in militia activity in Wisconsin is not destiny — it is a choice. During the 1970s and 80s when an anti-government militia, Posse Comitatus, gained a foothold in central Wisconsin, local law enforcement cracked down on the group and put it out of business. Wisconsin’s leaders have the same ability to take decisive action against private militias endangering the state’s residents today.
The only question is: Will they?