Regulating Unregulated Militias

Raskin and Markey will need increased security

“Democrats Propose Bill to Neuter Militias” is how Vice News described it:

Militias who like to spend their weekends training to overthrow the government could find themselves running afoul of federal law, under new legislation being proposed in the House and Senate Thursday that seeks to curtail paramilitary activity. 

The “Preventing Private Paramilitary Activity Act” is being introduced by Senator Ed Markey from Massachusetts, and Congressman Jamie Raskin of Maryland, both Democrats. 

Here’s the bill.

Here’s Raskin’s statement:

Washington, DC – Following the anniversary of the January 6th attack on the United States Capitol, Congressman Jamie Raskin (MD-08) and Senator Edward J. Markey (D-Mass.) introduced the Preventing Private Paramilitary Activity Act,legislation that wouldcreate a federal prohibition on paramilitary groups through civil and criminal enforcement. The prohibition would hold individuals liable who directly engage in certain types of conduct, including intimidating state and local officials, interfering with government proceedings, pretending to be law enforcement, and violating people’s constitutional rights, while armed and acting as part of a private paramilitary organization.  

There are currently no federal laws that address paramilitary activity or protect millions of Americans whose rights are threatened by this type of violent anti-democratic intimidation. Although all 50 states prohibit private paramilitary conduct, these laws are far too often outdated, underenforced, or ignored. Private military organizations pose a threat not only to national security, but they also present a public safety problem that extends beyond any single state; for example, private paramilitary actors like the Proud Boys and Oath Keepers traveled across state lines on January 6th.  

“Patrolling neighborhoods, impeding law enforcement and storming the U.S. Capitol, private paramilitary groups like the Oath Keepers, the Three Percenters and the Proud Boys are using political violence to intimidate our people and threaten democratic government and the rule of law,” said Congressman Raskin. “Our legislation makes the obvious but essential clarification that these domestic extremists’ paramilitary operations are in no way protected by our Constitution. I’m grateful to Senator Markey for his partnership on this critical effort to protect the rule of law, deter insurrection and defend our democracy.” 

Here’s an excerpt from Markey’s backgrounder:

Legislation Overview: This legislation builds on existing state anti-paramilitary laws to create a new prohibition on unauthorized private paramilitary activity, with both civil and criminal enforcement mechanisms. The prohibition does not bar mere association with paramilitary groups; instead, it holds individuals liable if they engage in certain types of conduct while armed and while acting as part of a private paramilitary organization, which is narrowly defined as a group that is organized in a military-style command structure for the purpose of engaging publicly in pseudo-military or law enforcement-style operations. The categories of prohibited conduct address dangerous conduct engaged in by private paramilitaries:

(1) publicly patrolling, drilling, or engaging in deadly paramilitary techniques;
(2) interfering with or interrupting government proceedings;
(3) interfering with the exercise of someone else’s constitutional rights;
(4) falsely assuming the functions of law enforcement and asserting authority over others; and
(5) training to engage in such behavior.

The legislation creates different tiers of criminal penalties based on whether violations result in injury or property damage; provides harsher penalties for repeat offenders; and allows for a probationary sentence for first-time offenders. Importantly, it also creates civil remedies by authorizing the Department of Justice to seek injunctive relief against paramilitary activity and by creating a private right of action for individuals harmed by paramilitary activity to seek injunctive relief and/or damages. The legislation also contains clear exceptions for activities such as historic reenactments, state-sanctioned trainings, and veterans’ parades.

Penalties for violating the act ramp up from a year of probation for violators with no prior convictions to fines and 5 years for violations involving bodily injury and fines and life imprisonment for violations involving death.

There’s more: they could forfeit their private aresnals under Section 413 of the Controlled Substances Act:

But wait! There’s even more. Members could face civil penalties:

Any person injured as a result of any violation of section 2742 may bring a civil action, individually or jointly with other aggrieved persons, in an appropriate district court of the United States for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, or for damages incurred as a result of any violation of section 2742, including reasonable attorney fees and costs.

One weakness is that for any of Items 1-5 (above) to be a violation, actions have to be taken “while acting as part of or on behalf of a private paramilitary organization and armed with a firearm, explosive or incendiary device, or other dangerous weapon.” In the Jan. 6 insurrection photo at the top, no one is openly displaying weapons as militiamen did in 2020 when they occupied the Michigan state capitol to protest COVID closures. But at least it could deter a repeat of events like that.

In 2022, a federal judge “ordered armed members of a group monitoring ballot drop boxes in Arizona to stay at least 250 feet away from the locations following complaints that people wearing masks and carrying guns were intimidating voters.” Pass the Preventing Private Paramilitary Activity Act and it might not get that far. Unless the U.S. Supreme Court sides with the domestic terrorists and their inevitable freedom challenges.

“If enacted, the PPPA will provide tools necessary to deter and prevent paramilitary efforts to undercut our democratic processes and the free exercise of constitutional rights,” said Mary McCord, Executive Director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center.  

For militia types who might wear a couple years in jail as a badge of honor, threatening jail may not be as effective as threatening to confiscate their toys.