MILITIA - HISTORY AND LAW FAQ 6/6 version 1.01 July, 1995 4.26 It is the fact that the cit
MILITIA - HISTORY AND LAW FAQ 6/6
4.26 It is the fact that the citizenry are considered militia, although
unorganized, that gives the federal government the power to enact the
draft of individuals into the armed forces.
A. No. Historically, there have been drafts into both the state militia
and into the armed forces, although today when we think of the Draft, it
is only thought of in connection with the armed forces. The Draft, into
the Armed Forces, is done under the War Powers of Congress (see 1.12).
The U.S. Supreme Court in the Selective Draft Law Cases of 1918 specifically
found that power to Draft into the armed forces was based on the war
powers of Congress saying:
"The possession of authority to enact the statute must be found in
the clauses of the Constitution giving Congress power ' to declare war
...to raise and support armies, but no appropriation of money to that
use shall be for a longer term than two years..to make rules for the
government and regulation of the land and naval forces'" [245 U.S. 377]
4.27 The Constitution has been suspended since 1933 and Americans are
living under admiralty jurisdiction. This view is sometimes
expressed by those who also support the new militia.
A. Most Americans believe that the Constitution is still in force.
For what it is worth, the most important legislation and law regarding the
the militia occurred before 1933. Since the courts believe that the
Constitution is not suspended, it is worthwhile to understand how courts
interpret the militia clause of the Constitution.
4.28 Violations of the Constitution are more than provocations. They are
themselves violations of law. E.g. 18 USC 241, Conspiracy to Violate
Civil Rights, or 18 USC 242, Deprivation of Civil Rights Under Color of
Law. They may also violate state criminal laws. Since the militia is
obliged to enforce constitutional laws, they have the duty to enforce
the laws being violated by such unconstitutional action. That means
militiamen may be faced with the duty to arrest those trying to arrest
them, and thus the divide between law and anti-law poses the threat of
A. This statement is dangerously wrong.
Assume a civil disturbance breaks out 10 miles away from where a state
National Guard unit is training for riot control duties. The National
Guard unit cannot, on its own, decide to intervene and put down the
disturbance. The Guard MUST await orders from authorized civilian
Militias have never had an obligation to enforce the law. They are a
military or paramilitary force -- they follow civilian authority. They
don't have any general obligation to maintain the peace or enforce laws.
The case of Chapin v. Ferry discussed at 4.11 is a perfect example of this
point. Strikes and rioting are occurring at coal mines in Washington state.
The mine manager asks the National Guard commander to protect the mines.
The commander "declined to act without orders from the governor" and
then telegraphs for orders. He gets orders from the governor and follows
them. And as the situation changes, he keeps telegraphing the governor for
4.29 Can a governor prevent the "unorganized militia" from training?
A. Militia law deals with militias. A group that isn't authorized by the
state as a militia isn't one. Accordingly, whether or not the new
militias can be prevented from training is not a question for the governor
in his capacity as commander-in-chief of the militia in state service.
Part 5. - Legal Issues for the New Militia
5.0 This FAQ has shown that nothing in the Constitution or state
and federal law that either authorizes or advocates the actions of
the new militia.
But that doesn't mean their actions are illegal. Whether or not their
actions are illegal depends on:
- what they are doing
- what laws are on the books in their jurisdiction
- whether those laws are constitutional
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
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:
"Obtain signed 'assumption of risk' documents from each member
of your [new militia] unit. The widows and orphans attorney can be
counted on take a dim view of your lawful activity if someone in your
group gets stupid on safety rules."
In other words, militia training can be dangerous.
5.2 Which states have laws regulating or prohibiting unauthorized
A. The NY Times (5/10/95) states:
"The rise of so-called militia organizations has come despite laws in 41
states that bar or regulate armed paramilitary groups...Twenty-four states
have laws banning private military organizations or militias and 24,
including 7 with anti-militia laws, have laws banning private
paramilitary training that is meant to or likely to produce civil disorder
...There is a long legal history to militia issues, dating back to 1886
when the Supreme Court ruled in Presser v. Illinois that an Illinois law
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
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 list of the statutory sources for each state law:
States with Both Anti-Militia and Anti-Paramilitary Training
-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 introduced into
"Domestic Insurgency Act of 1995 - Amends the Federal criminal
code to impose a fine and up to ten years imprisonment on
whoever knowingly participates in a paramilitary organization.
Defines a "paramilitary organization" as two or more individuals
acting together, organized in a military or paramilitary
structure, who knowingly: (1) possess firearms, explosives,
incendiary devices, or other weapons or techniques capable of
causing injury or death; or (2) provide or participate in
training in the use of any such weapons or techniques with the
intention that they be used unlawfully to oppose U.S. or State
authority or for any other unlawful purpose."
See 5.10 for a judicial definition of military organization.
5.4 What are the reasons for stating that these anti-militia laws are
A. Here is one view by those who believe that these laws are
unconstitutional, from "A well-regulated and legal militia", by Carl D.
& Nancy E. Haggard, _Soldier of Fortune Magazine_, May 1995 :
"...There is a recognized right to associate with others for lawful
purposes that has been firmly established in numerous cases by the
U.S. Supreme Court. The Bill of Rights does not explicitly mention
freedom of association. However, it has been repeatedly held that
this freedom derives by implication from the explicitly stated rights
of speech, press, assembly and petition. Not all social associations
are protected, and the Supreme Court has held that a group of people
who do not have specially protected First Amendment right to gather
together for social purposes where they do not otherwise have the
right to be.
"Case law from the Supreme Court defines where the right of association
begins and ends. Presser v. Illinois (see of the faq), 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 associate
with 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 state's 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
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:
"...had recruited members and solicited contributions within the state;
had given financial support and furnished legal assistance to Negro
students seeking admission to the state university; and had supported a
Negro boycott of the bus lines in Montgomery to compel the seating of
passengers without regard to race."
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
"We thus reach petitioner's claim that the production order in the
state litigation tresspasses upon fundamental freedoms protected by
the Due Process clause of the Fourteenth Amendment.."
"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 fo 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
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
"111:15 Armed Civilian Groups. No organization, society, club,
post, order, league or other combination of persons, or civil
group, or any member thereof , are authorized to assume any
semblance of military organization or character by bearing or
possessing rifles, pistols, sabres, clubs, or military weapons
of any kind, or wearing a military uniform of any kind. Any
person violating any of the provisions of this section or taking
part in such military organization shall be guilty of a misdemeanor
if a natural person, or guilty of a felony, if any other person, and
any rifles, pistols, sabres, clubs or other military weapons used
in violation hereof shall be forfeited. This section shall not apply
to regularly constituted military units under state or federal laws,
and nothing in this section shall be construed as forbidding
the possession and use of rifles for color guards or firing squad
purposes, [also excludes wearing of uniforms by some veteran
groups and ritualistic use of sabres or rifles by fraternal groups]"
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:
"It shall be unlawful for any body of men whatever, other than the regular
organized volunteer militia [note all the qualifications - since the 1792
Uniform Militia Act was still the law], and the troops of the United
States, to associate themselves together as a military company or
organization or to drill or parade with arms in any city or town of this
state, without the license of the Governor thereof, which license may at
any time be revoked [goes on to exclude ceremonial wearing of swords,
educational groups with consent of the Governor,etc]"
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."
"Presser,in December, 1879, did march at the head of said company,
about 400 in number,in the streets of Chicago, he riding on horseback
and in command; that the company was armed with rifles and Presser
with a cavalry sword". [p.618]
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:
"We think it clear that the sections under consideration, which
only forbid bodies of men to associate together as military
organizations, or to drill or parade with arms in cities and towns
unless authorized by law, do not infringe the right of the people
to keep and bear arms." [p.619]
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:
"But a conclusive answer to the contention that this Amendment
prohibits the legislation in question lies in the fact that the
Amendment is a limitation only upon the power of Congress and the
National Government, and not upon that of the States" ..." [p.619]
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.
"It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the United
States as well as of the States; and, in view of this prerogative of
of the General Government, as well as of its general powers, the States
cannot, even laying aside the constitutional provision out of view,
prohibit the people from keeping and bearing arms, so as to deprive
the United States of their rightful resource for maintaining the
public security, and disable the people from performing their duty
to the General Government. But, as already stated, we think it clear
that the sections under consideration have no such effect." [p.619]
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, 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 (see 5.10).
"The only clause in the Constitution which, upon any pretense,
could be said to have any relation whatever to his right to
associate with others as a military company is found in the
First Amendment, which declares that "Congress shall make
no law ..abridging.. the right of the people peacably to assemble
and to petition the government for a redress of grievances..." [p.619]
"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
Article 5780(6) provides in full:
"No body of men, other than the regularly organized State Military
Forces of this state and the troops of the United States, shall
associate themselves together as a military company or association
or parade in public with firearms in any city, or town of this State;
provided that students in the educational institutions where military
science is a prescribed part of the course of instruction, and soldiers
honorably discharged from the service of the United States may,
with the consent of the Governor, drill and parade with firearms
in public. Nothing herein shall be construed to prevent parades
by the active militia of any other state as hereinafter provided." [p.211]
"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 faces two independent yet related issues. First, the
Court must determine whether an injunction enjoining the remaining
defendants from conducting military operations is necessary and
appropriate to protect the plaintiff's federal civil rights. Second,
the Court must determine whether [under the Texas Statute].., it
may enjoin defendants from conducting military training camps within
the State of Texas.
"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).
'a governmental regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers
an important or substantial governmental interest; if the governmental
issue is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.'
"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:
'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.'
"...Weighty governmental interest also counsel against acceptance
of any argument that the First Amendment protects military operations.
As a New York Appellate Court has observed :
'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.' [Re Application of Cassidy, see 5.12]
"This government interest is not intended to, nor does it,
suppress free expression. Finally, any restriction which an
injunction of military activities would place on defendants'
free expression is minimal; defendants remain free to express
their views by means other that the threat of military force."
It has been argued by some that it was only the outrageous behavior of the
Texas Emergency Force, through its tactics of intimidation, that took
it beyond the protection of the First Amendment in this case. And that
the mere formation of a military organization or company would be protected.
Since the new militia constantly claim to be 'defensive' then they may
claim the protection of the First Amendment. But that is not what this
Court says here:
"Defendants' military training operations are similarly outside
the scope of the First Amendment freedom of speech and association.
...An injunction against defendants' military training operations
in no way hinders defendants from meeting together as a group.
Rather, it simply limits their ability to engage in a certain
pattern of noncommunicative conduct which threatens to incite
a breach of the peace. The First Amendment is not defense to
a charge of conspiracy even if the act was committed for
political or ideological reasons. So too, defendants' particular
political motivations do not entitle them to transgress the
law under the guise of the First Amendment." [pp.208-209]
"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 evidence shows that the TER is a military organization
which operates as the military arm of the defendant Knights of
the Ku Klux Klan. This fact, in and of itself establishes a
violation of articles 5780(6)'s prohibition of the formation
of military companies or organizations" [p.218]
The Court then went on to grant an injunction against the
TER and the KKK as follows at p. 220:
"2. The Knights of the KKK of for the State of Texas, and
its agents, employees, officers, officials, members, assigns,
and successors; and the individual defendant, Louis Beam,
in his individual capacity and as Grand Dragon of the Knights
of the KKK for the State of Texas; and all other acting in
concert or participation with these defendants, including, but
not limited to, the Texas Emergency Reserve are permanently
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
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.
"Another Texas militia group, the 1st Battalion, Texas Light Infantry
(TLI) was formed in the Dallas, Texas, area in 1984 by Bob Holloway,
a Vietnam Veteran. The 2nd Battalion, TLI was activated in the Austin
area in 1986. The 3rd Battalion, TLI is headquartered at Bryan-College
Station with Major Gert Ording (ex-Navy medic), Commanding Officer and
Captain Larry Wiese (Marine Vietnam vet), Executive Officer...
"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
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) .
"The record discloses that the applicant believes there is a
need for changing the structure of our government. With his
view in this respect we have no concern, nor with his methods,
so long as they are legal and constitutional. The documentary
evidence demonstrates, however, (a) that the appicant is
convinced that the constitutional processes are inadequate
to effect the changes which he considers necessary or desirable
in our existing form of government; (b) that the applicant
deliberately advocated and counselled the unlawful formation
of armed units [New York has laws against unauthorized military
organizations] against whom he considered subversive elements;
and (c) that if the government failed to act promptly to suppress
such subversive elements these privately organized armed
units should take the law into their own hands and act
independently without regard to the government.
"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]
Part 6. - Afterword
by Mark Pitcavage
If you've braved the entire FAQ to reach this point, then you deserve
considerable congratulations: here's a pat on the back. While you catch
your breath, you might stay with us just a moment or two longer and reflect
upon the purpose and intent of this FAQ. Compiled by a Canadian lawyer with
the aid of an American historian, it bears the heavy imprint of both. And
missing entirely are such questions as, "What is the nature of the new militia
movement?", "How many people are in it?", "How would I join a group were I so
inclined?", and"Do these groups represent some sort of danger?", among others.
But the purpose of this FAQ was not to provide information about the
new militia movement per se -- a simple search of literature published since
November 1994 by both the movement and the media will provide more
information (and some misinformation) than most people will want to know --
but rather to place the new militia movement in its proper context. In
short, we wanted to answer two questions: 1) What is the relationship
between the new militia movement and the historical militia? and 2) What is
the legal standing of the new militia movement?
These are important questions. The ideology of the new militia movement --
stripped of the racial and/or theological overtones that color it heavily in
some areas -- can be characterized as a backwards-looking right/libertarian
ideology. In other words, the belief system of the new militiaman believes
that 1) less government is better, 2) strong government tends to interfere
with concerns more properly belonging to the province of the private
citizen, 3) strong government tends to be socialistic in nature, and 4)
individual liberties are best protected by individuals. These concerns all
interlock firmly with each other, but by themselves are not particularly
different from other libertarian or right/libertarian philosophies.
Two additional glues cement these concerns together. The first is probably
psychological as much as philosophical: a strong desire to own firearms.
The political beliefs provide a foundation which suggests that firearms are
necessary to protect individual liberties, the most important of which is
the right to own firearms. Somewhat circular, perhaps, but it is
nonetheless a strongly held conviction. The second glue is a strong sense
of paranoia coupled with pessimism. Members of the new militia movement
sincerely believe that society is disintegrating rapidly. The causes are
various: socialism, one-worldism, a too- powerful media, a liberal
intellectual establishment, and more. Religious militia members sometimes
cite a turning away from God, or even the coming apocalypse. White
supremacist militia members will suggest that race plays a strong role. It
is this sense of paranoia that can cause militia members to take seriously
such notions as U.N. troops being sent to occupy the country, or special
secret prisons being built to house militia members.
What fuels these convictions is the sense that new militia members have that
they represent a last defense against such forces. I mentioned earlier that
they were backward-looking. The movement looks to an imagined past in which
sturdy individuals, unfettered by any chains of government, grabbed their
firearms in defense of their natural rights. The idealized past -- dimly
perceived as consisting of the American Revolution (in particular, Lexington
and Concord) and the Founding Fathers (in particular anti-federalists and/or
Jeffersonians) -- became through a long path of declining liberties the
As they look back to this utopian past, members of the new militia movement
draw upon it for justification for what they do. Their actions are legal --
indeed, worthy of estimation -- because they merely continue this long
(perceived) tradition. What they do is true to the spirit of the Founders,
unlike the perverted or corrupted actions of government agencies like the
FBI or the BATF. They are merely guardians of their own (and our) liberties.
And yet, when the rose-colored glasses are taken off, it appears that their
claims to a political/philosophical inheritance are not particularly strong.
Service in the historical militia was a burden rather than a right through
much of its early history. As Radical Whig Ideology gained adherents in the
colonies in the eighteenth century, many colonists became convinced that a
strong militia did in fact guarantee liberty. But the strong militia they
conceived of was not an anarchic, individually-based collection of
arms-bearing volunteers, but rather the community in arms, hierarchical in
nature, subservient to authority and to the law.
The Founding Fathers took this virtuous citizen militia and did something
revolutionary with it, placing it (partially) in the hands of the federal
government, in the hopes that the militia could better guarantee the
security of the nation than could a strong standing army. Since then, the
history of the militia has been one of federalism; that is, sharing power
between the federal and state governments. Individuals composed the militia
and owed military service to the community in the form of militia duty, but
this was a burden rather than a right.
As the country grew more populous, its security could be guaranteed by
forces smaller than the men provided by compulsory militia service; as a
result, first the states then finally the federal government released from
the burdens of service all those who chose not to participate. Henceforth,
the militia would be voluntary, in what would become the National Guard.
What members of the new militia movement desire is the right to form
voluntary militia units, but units without the responsibilities, duties, or
safeguards by which the National Guard is governed. Though the history of
the militia/National Guard in our country has largely been one of
subservience to proper authorities, members of the new militia movement seek
and/or claim to be answerable to no one but themselves. American society
has traditionally looked askance at such groups, particularly when they are
The new militia movement thus has no claim to history, no claim to legality,
and no claim to public support. That it is so alienated from the rest of
society is both a cause of its radical opinions and a result of them.
Whether the new militia movement has a propensity to violence is difficult
to say. Perhaps it is enough to say that they have the tools for violence
coupled with an ideology in which violence is not only permissable but if
used for the right ends, admirable. That both these means and ends are not
necessarily the ones desired by the majority of Americans hardly needs to be
said; this is why the new militia movement is a fringe movement.
------- End Militia - History and Law FAQ --------------
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