Modernize States’ Legislative Efforts on Unsanctioned Militias While Protecting Constitutional Rights

New legal questions are emerging alongside two trends regarding domestic militias. First is an increase in unauthorized domestic militia activity. Second is that those militias increasingly appear like soldiers or law enforcement and less like haphazardly outfitted hobbyists. Central to this legislative space are two primary sets of laws: those addressing how, when, and for what purpose civilians can and cannot wear military-style uniforms, and those restricting the organized activity of individuals and groups practicing military drills or conducting activities like firearms training.

Consistent with these trends, existing laws either bar organized militia activity or function like consumer protection statutes, prohibiting certain types of personal conduct rather than imposing disclosure or reporting obligations. For example, impersonation of law enforcement through the use of forged or official-looking credentials is a crime under both federal and state law. Donning law enforcement regalia with the intent to deceive, including for financial gain, is illegal in all 50 states. Every state now prohibits unsanctioned militia activity, although the exact acts proscribed and approaches taken vary across states. Together, these laws form the baseline legislation that states use to exercise their inherent police power in favor of public safety and against those domestic groups who would otherwise undermine it.

Adding complexity, bona fide law enforcement officers and militia members may now access uniforms and firearms that bear little obvious distinction from one another. Law enforcement procurement jumpstarted under Section 1033 of the 1997 National Defense Authorization Act (NDAA). With it, a market for surplus and copycat kit emerged, making uniforms easily available to both unsanctioned militia members and ordinary civilians alike. Concurrently, the sale of firearms, as extrapolated from the number of FBI-tracked background checks, surged. Mutual access to both uniform and material and the resulting aesthetic convergence between military, law enforcement, and unsanctioned militia actors is now part of the larger legal public safety landscape.

Recent legislative efforts provide an opportunity to address the confluence of uniforms and equipment, in particular between government, law enforcement professionals, the military, and unsanctioned militias. To that end, an analysis of selected state laws is instructive.

Approaches at the State Level

Every state employs a statutory amalgam to achieve the twin goals of public and law enforcement safety. They vary in scope and across jurisdictions, likely reflective of drafter preference as well as the times in which they were passed. As illustrative examples, legal schemes from Vermont, Oregon, and New Mexico are presented to highlight similarities in legislative approach. Critically, each of these states empower its prosecutors to seek injunctive relief as a means of enforcing antimilitia laws. Injunction is no small thing, especially when it works to remove or prohibit certain groups of people—in this case militia members—from constitutionally protected places such as public streets and open civic spaces. Where and how individual rights to assemble or bear arms give way to compelling governmental interests in public safety is an exercise of art as much as science. Nevertheless, the antimilitia laws of Vermont, Oregon, and New Mexico represent material steps in tipping the balance in favor of the latter and may also prove worthy footholds should other states look to leverage their example in revising their own statutes—especially if they are considering adding the powerful remedy of injunctive relief to existing criminal and monetary penalties.

Vermont controls militia activity by prohibiting a person from “teach[ing], train[ing], or demonstrate[ing] to any other person the use, application, or making of a firearm . . .” and forbids any one person from “assembl[ing] with one or more other persons for the purpose of practicing or being [] trained or instructed in the use, application, or making of a firearm.” Oregon takes a similar approach by establishing the crime of unlawful paramilitary activity, violation of which is conditioned upon a combination of the display or demonstration of firearms, intent to cause civil disorder, and/or assembling with others for the purpose of weapons training. New Mexico similarly makes it unlawful to demonstrate the use of a firearm to another in furtherance of civil disorder, or to gather with others either to provide or receive firearms training.

Each of these laws prohibits the same conduct, but differ in how they do so, which is typical for state legislation. In general, prohibitions are conditioned on a combination of firearms, training, and a group of at least two or more people. The other 47 state laws range from continuing with the threshold of firearms to focusing more closely on prohibiting military-style drill and parade, all against the backdrop of preventing civil disorder.

What sets Vermont, Oregon, and New Mexico apart is that in addition to incarceration or fines, they provide for equitable relief in the form of injunction. In Vermont, if the attorney general or a state’s attorney reasonably believes that a person is violating or about to violate its law, and that injunction proceedings would benefit the public, they can bring an action to restrain the violation either temporarily or permanently. In Oregon, the attorney general has two arrows in their quiver: (1) to cause and serve an investigative demand upon a person who appears to have possession of information or material relevant to an investigation of prohibited paramilitary activity and (2) injunctive relief generally. New Mexico’s authority is not grounded in a single antimilitia statute, but in the fact that paramilitary activity amounts to an illegal usurpation of the governor’s authority over state military power. As such, any ongoing legal violations are amenable to equitable relief. To date, both Vermont and New Mexico have successfully enjoined the self-deployment of private militia.

How then do equitable remedies relate to the enhanced militarization of law enforcement and militias, and what does it all mean for the future of state laws prohibiting militia activity? As New Mexico and Vermont prove, these laws are not paper tigers. Injunction is a powerful remedy, especially where it provides a narrowly tailored match for addressing potential harms—militia-caused civil disturbance, interruption of the democratic process, and the threat posed to law enforcement and the public by roving swaths of armed, unprivileged militia—while also satisfying the established constitutional requirements for affecting First and Second Amendment protections. Broader adoption of equitable relief in antimilitia laws should be among our top priorities.

More consistency between states with respect to which conduct principally anchors their statutes is required. Prohibiting military drill and banning organized firearms instruction are not the same. Drill and ceremony are likely to occur far less often than instruction in arms, especially where state law prohibits one and permits the other. To the extent that remains true, a potentially dangerous loophole exists. If a militia group can avoid breaking the law merely by discontinuing ceremonial acts, it would be rational to do so. The common thread uniting militias is their use of firearms, not whether they muster for drill or which parade field they call home. Narrowly drawn legislation centered on firearms education or tactics that prohibits these kinds of nonstate actors from conducting these kinds of activities ensures the laws will remain relevant for as long as those tools are carried, while also retaining a flexibility that allows regular civilians to safely exercise their Second Amendment rights without risking conflating the two. Greater consistency in just this one area could yield fruit well in excess of the effort required to cultivate it. Pegging antimilitia legislation to firearms training instead of military cosplay, combined with broader integration of equitable relief, are the next steps required for state laws to keep pace with a broader array of unsanctioned militia activity.

About the Author

Matt Gimovsky is senior corporate counsel at Kroll and an Army JAG with active-duty experience in administrative law and with the trial defense service.

About the Series

Building on its prior work on issues at the intersection of federalism, national security, domestic deployment, and law enforcement activities, the CNAS National Security Law Program is publishing a commentary series that assesses the legal and policy considerations for improving the framework governing law enforcement use of military uniforms and gear. Read more about the series here.

The CNAS project on federalism and national security was initiated with support from the Democracy Innovation Fund, Defending Democracy Together Institute. Continued work on domestic deployment and related issues has been made possible by support from the William and Flora Hewlett Foundation.

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