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Second Amendment

Private Militias

Private militias are armed military groups that are composed of private citizens and not recognized by federal or state governments. Private militias have been formed by individuals in America since the colonial period. In fact, the Revolutionary War against England was fought in part by armies comprising not professional soldiers but ordinary male citizens.

Approximately half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias. In Wyoming, however, state law forbids the very formation of private militias. Under section 19-1-106 of the Wyoming Statutes, "No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military company or organization, or parade in public with arms without license of the governor." The Wyoming law also prohibits the public funding of private militias. Anyone convicted of violating the provisions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense.

In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all of society. Thus, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.

Many private militias are driven by the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for SELF-DEFENSE and for rebellion against a tyrannical government—when a government turns oppressive, private citizens have a duty to "insurrect," or take up arms against it.

The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), "[W]hatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change." Scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.

Some people have disagreed with the Supreme Court's definition of tyranny. Many of these people label the state and federal governments as tyrannical based on issues such as taxes and government regulations. Others cite governments ponsored racial and ethnic INTEGRATION as driving forces in their campaign against the federal and state governments. Many of these critics have formed private militias designed to resist perceived government oppression.

Some private militias have formed their own government. The legal problems of these private militias are generally unrelated to military activities. Instead, any criminal charges usually arise from activities associated with their political beliefs. The Freemen of Montana is one such militia. This group denied the legitimacy of the federal government and created its own township called Justus. The Freemen established its own court system, posted bounties for the arrest of police officers and judges, and held seminars on how to challenge laws its members viewed as beyond the scope of the Constitution. According to neighbors, the group also established its own common-law court system and built its own jail for the imprisonment of trespassers and government workers, or "public hirelings."

In the 1990s, the Freemen came to the attention of federal prosecutors after members of the group allegedly wrote worthless checks and money orders to pay taxes and to defraud banks and credit card companies. One Freeman had also allegedly threatened a federal judge, and some had allegedly refused to pay taxes for at least a decade.

In March 1996, law enforcement officials obtained warrants for the arrest of many of the Freemen. However, remembering the violence that occurred when officials attempted to serve arrest warrants on another armed group in Waco, Texas, in 1993, law enforcement authorities did not invade the Freemen's 960-acre ranch in Jordan, Montana. Although the Freemen constituted an armed challenge to all government authority, its beliefs and its military activities were not illegal, and most of its members were charged with nonviolent crimes, such as FRAUD and related conspiracy. Two men were also charged with threatening public officials. In addition, several Freemen faced charges of criminal syndicalism, which is the advocacy of violence for political goals.

FURTHER READINGS

Amar, Akhil Reed. 2002. "Second Thoughts." Law and Contemporary Problems 65 (spring).

Barry, Monica Sue. 1996. "Stockpiling Weapons: Can Private Militias Receive Protection under the First and Second Amendments?" Thomas Jefferson Law Review 18 (spring).

Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. "The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms." St. John's Journal of Legal Commentary 16 (winter).

CROSS-REFERENCES

Dennis v. United States.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Roberts v. United States Jaycees to Secretary of StateSecond Amendment - Private Militias, Further Readings