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States Ill-Prepared To Deal With Vigilante Militias Invading Their Capitols This Weekend

Vigilante militiamen are preparing to descend on the nation’s Capitols this weekend—both in Washington, D.C., and at various state capitals around the country.
States Ill-Prepared To Deal With Vigilante Militias Invading Their Capitols This Weekend
Image from: David Neiwert photo

Vigilante militiamen are preparing to descend on the nation’s Capitols this weekend—both in Washington, D.C., and at various state capitals around the country—to protest on behalf of Donald Trump’s false claims to have won reelection, but federal, state, and local law-enforcement officials are preparing to handle them, as they have for the past 30 years, as legitimate entities rather than how the laws in all 50 states designate them: outlaws.

As Will Carless recently explored in USA Today, private armies and paramilitary activities that occur outside the jurisdiction of military authorities are specifically banned in the constitutions of 48 states. Some 29 states have statutory prohibitions against private militias, including the two states (Georgia and New York) lacking constitutional bars. Another 25 states prohibit paramilitary activities. Yet none of these laws have ever been put to use by state attorneys general or law enforcement in the 30 or so years that the “Patriot” militia movement has been organizing its antidemocratic “small cell” armies.

While several state Capitols—such as those in Olympia, Washington; Salem, Oregon; St. Paul, Minnesota; and Lansing, Michigan—already have been dealing with militia-led protests and apparent attempts at insurrection, far-right extremists have promised to hold similar protests at a larger number of capital cities. The FBI warned earlier this week that militia rallies are planned this weekend for all 50 state capitals.

"Armed protests are being planned at all 50 state capitols from 16 January through at least 20 January, and at the US Capitol from 17 January through 20 January," the FBI bulletin said, adding: "On 8 January, the FBI received information on an identified group calling for others to join them in 'storming' state, local and federal government courthouses and administrative buildings in the event POTUS is removed as President prior to Inauguration Day. This identified group is also planning to 'storm' government offices including in the District of Columbia and in every state, regardless of whether the states certified electoral votes for Biden or Trump, on 20 January.”

It also noted that there may be a broad-based “uprising” in the event of Trump’s removal from office before Inauguration Day.

“Most experts expect violence,” extremist expert Robert Futrell of the University of Nevada-Las Vegas told Bloomberg News. “Street-level violence, maybe bombings. There are threats all the time, and it’s hard to pinpoint who spins out of these networks and commits the kind of violence we fear.”

“A lot of people were energized by what happened last week,” Mark Pitcavage of the Anti-Defamation League’s Center on Extremism told the Baltimore Sun. “State capitals are a natural place where people might want to show up, especially assuming that they think there might be a huge presence of police and military in D.C. because of what happened last week.”

Yet only a few of these capitols appear to be prepared for the onslaught. USA Today’s Elaine Povich and Alex Brown surveyed state preparations for protests this week and found that massive security holes remain at many of them. Less than two-thirds of the Capitols employ metal detectors, and about 20 statehouses specifically allow guns inside. In many states that do employ magnetometers, such as Virginia, lawmakers routinely ignore the security stops and thus can carry guns inside.

Moreover, these private armies are in fact illegal in every state. A study published in 2018 by Georgetown Law’s Institute for Constitutional Advocacy and Protection surveyed all 50 states’ laws dealing with militia activity and detailed the many various ways that every single state long ago outlawed such vigilante units. Most such laws were passed in the late 19th and early 20th centuries, and reflected real-world concerns about the toxic presence of private armies and armed vigilantes working for robber barons during the early struggle over labor rights.

The nub of these laws is to require accountability for any such armed group, and to require that they remain under the command of civil authorities. The Washington Supreme Court, in a 1907 ruling upholding such a law, sagely observed: “Armed bodies of men are a menace to the public, their mere presence is fraught with danger, and the state has wisely reserved to itself the right to organize, maintain and employ them.”

Yet while they often claim they are organizing to protect the rights (especially gun rights) of their communities, the modern “Patriot” militias function primarily as local vigilantes and are in fact utterly accountable to no one. The reality on the ground is that their presence is a threat to public safety and, ultimately, to democracy itself.

According to Mary McCord of George Washington University’s Institute for Constitutional Advocacy and Protection, states are long overdue to enforce these laws. McCord notes that the statutes have been tested in the Supreme Court dating back to 1886, and moreover should remain important tools in confronting the current, unprecedented evolving crisis around these militias.

“It would behoove state law enforcement to look at where these groups are," McCord said, "and try to use the rules they have in their states to either shut them down criminally, or take some civil enforcement actions before the upcoming events.”

State and law-enforcement officials have in recent years backed away from enforcing them because of a presumption that they might violate the Second Amendment. Even the Supreme Court’s 2008 District of Columbia vs. Heller ruling—considered a high-water benchmark for gun-rights advocates—stipulated that nothing in the case prevented a state from banning paramilitary organizations, reiterating a ruling from a century earlier.

"I think in many states, there's not only a lack of political will, but we also have so-called 'constitutional sheriffs' who refused to enforce the laws," Brian Levin of the Center for the Study of Hate & Extremism at California State University-San Bernardino told USA Today. "I think some law enforcement executives are sympathetic (to these groups' causes). I think most are just not very aware of militias that are operating within their jurisdictions, particularly in rural areas, and also of what the law is.”

“This threat will absolutely not go away after Biden’s inauguration,” Hampton Stall, the founder of the monitoring organization MilitiaWatch, told Bloomberg. “I’m not sure what future mobilization towards the national capital may look like in the future, especially from militia organizations I’m most familiar with, but state capitals have been a target for their mobilizations for years now.”

Posted with permission from Daily Kos.

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