Are Modern Militias Legal in the U.S.?

U.S. Militia Groups

Militia groups in the United States are private organizations that are comprised of citizens as well as law enforcement or paramilitary personnel. Variations of American militia groups include organized militia, which contains members of the military or law enforcement; unorganized militia, which contain citizens not supervised by law enforcement or military; and constitutional militia, which contains libertarians, veterans, and Second Amendment advocates.

History

The term militia was first introduced in 1590 as “The body of soldiers in the service of a sovereign or a state.” The term is currently defined by the Oxford English Dictionary as “A military force raised from the civilian population of a country or region, especially to supplement a regular army in an emergency, frequently as distinguished from mercenaries or professional soldiers.”

When most people think of militia, they harken back to the days of the Revolutionary War and the Minutemen. The Continental Army was in desperate need of help in defeating the British, so ordinary citizens – townspeople, farmers, and the like, took up arms to support their dreams of independence. Militia warfare has changed a great deal since the days of Paul Revere. Many militia groups tend to be against the government, than for it. Regardless, American militia groups are legal entities.

The Law

On June 18, 1878, President Rutherford B. Hayes signed the  Posse Comitatus Act of 1878 into law. The act, also referred to as the Army Appropriations Act of 1878, worked together with the Insurrection Act of 1807 to limit the federal government’s use of the military to enforce domestic policies. The law was updated in 1956 and 1981.

There have been American militia groups throughout the U.S. since the formation of the country, although they were sparse. The modern-day militias made their presence known in the early 1960s. Referred to as the Posse Comitatus Movement, based on the Posse Comitatus Act, the legal concept of an organized militia under the authority of a law enforcement officer who recruits citizens to keep the peace. By the mid-1990s, the militia movement had a presence in all 50 states and was comprised of approximately 60,000 people.

Most militia groups declare themselves as being legally legitimate organizations as stated within constitutional and statute law, with specific references to an “unorganized militia.” Others hold their rights to face off against a tyrannical government.

Legal Exclusions

In December 2011, President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2012. The law altered the definition of “covered person,” i.e., one who may be arrested for violating the law, to include:

“A person who substantially supported the Taliban, al-Qaeda or associated forces engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

Section 1021(e) limits the scope of authority:

“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

Exclusions to the law include:

  • Army and Air National Guard units and state defense forces under the authority of a state governor.
  • Federal armed forces used under the Insurrection Act, e.g., the military presence during the 1992 Los Angeles riots.
  • The Attorney General may request the Secretary of Defense provide emergency assistance in the case that domestic law enforcement is not adequate to address specific types of threats, e.g., deployment of nuclear materials.
  • Support roles supervised by the Joint Special Operations Command.
  • Provide surveillance, intelligence gathering, and equipment for domestic law enforcement.
  • Enforcement of federal law by order of the President of the United States.

Anti-government Forces

Historically speaking, American militia groups have not been in favor of the government, railing against taxes, immigration, southern restoration. They have supported survivalism, sovereign citizenship, and land rights, and a belief in the rise of tyrannical government. As such, that tyrannical government must be confronted with force to protect liberties and way of life.

In recent years, many things have changed. While militias often confronted a common enemy, typically the government, fringe groups have splintered and have focused their attention, not on the government as a whole, but on specific parts of the government, i.e., left- or right-wing supporters. Many groups, although opposed to immigration, have worked hard to separate themselves from the white supremacist ideation that is commonly associated with such groups.

Perhaps the most significant change in militia groups, aside from the technological advances, is the fact that many have given their support to Donald Trump. Militia members have come forward praising Trump for his stance against immigration and hard line on foreign policy.

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