Exposing the "militia" mythology

Excerpt from the book 'Limits of Dissent.'
Aletheia Press, Amhurst, MA 1996

by Thomas Halpern and Brian Levin

The "well-Regulated militia" is the National Guard of each of the fifty states, not the armed civilian militias.

The "state militia" in 1903 known as the Dick Act, the state militias are the National Guard of the fifty states. Thus, well-regulated militias, state militia and the National Guard are more or less synonymous terms because they refer to the same thing, though labeled differently to reflect the historical and legal contexts in which they are used.

The "unorganized militia" also was established by the Dick Act, you and I are subject by this statute to be called into military service if and when our political representatives find it necessary.

This federal statute, and similar statutes, do not give you and me the legal right to go out and form our own private armed militia.

The "sedentary militia" is another term used to refer to the unorganized militia that I just described.

1. the well-regulated state militia established by the Constitution, is now the National Guard, (b) the unorganized or sedentary militia established by federal law. Neither one bears any resemblance whatsoever to the armed civilian militias. These militias have no authority or protection to exist or organize under either the Constitution or federal law.

The Federalists, who supported a strong federal government, Anti-federalists, who feared a strong central government.

This was a debate of considerable weight and importance at the time, and ultimately resulted in the constitutional provisions for "well-regulated state militias" - the Militia Clauses of the Constitution and the Second Amendment to the Bill of Rights-and in a system of shared and federal control over the militias.

Clauses and Articles II of the Constitution to:

The Congress shall have the Power

[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasion;

[16] To provide for organizing, arming, and disciplining the Militia…

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States,…

The state militia referenced in the Militia Clauses of the Constitution and in Article II, is regulated by the president, the Congress, and the governors of the states.

The mission of the militia established by the Constitution is to repel and suppress insurrections against the government.

The president, the Congress, and the state governors sharing command, control, and regulatory authority - is quite a contrast to the armed civilian militias that have no legal connection whatsoever with either the Constitution, the president, the Congress, or the state governments.

In 1972, the Militia Act, which established mandatory service in the state militias, as well as membership and duty requirements. By 1877, when state officials formed the National Guard Association, in 1902, the Congress passed the Dick Act which established the modern National Guard, replacing the state militias as they were defined in the federal act of 1972.

The armed civilian militias that are organizing today are doing so outside of any constitutional or statutory authority, and in many cases are organizing and training in violation of state laws that prohibit private armies paramilitary training.

They posses constitutional authority to organize and train, it is important to recognize that they have no such authority.

They view the entire system of the federal government as having evolved out of control. They do not view the Clinton administration or the current Congress as illegitimate per se…

So what comes under their indictment is the whole federal system - the Constitution as we know it, the three branches of the federal government, and federal regulatory and law enforcement agencies.

There is a perception that the government, though too much regulation, is violating people's civil liberties and generally interfering too much in people's lives.

The ideal government regulation theoretically strikes a perfect balance between protecting public and private interests. But there is probably no such thing as a government regulation that perfectly strikes this balance.

This dichotomy between public and private interests exists with respect to most government regulations. Perhaps the government could do a better job of addressing the concerns of the private interests impacted by government regulations. But there is no credible argument that can be made that regulations duly enacted by the federal government are unconstitutional. And this is precisely the claim of many antigovernment extremists, including many of the armed civilian militias.

White supremacy arguably fuels the engine of this movement, and its role should not be underestimated. Ever since the government of this country began rejecting invidious racial discrimination, there has been a tension between those who believe in discrimination and those who do not.

So, to a certain extent, the racist movement in this country, by definition, going to be antigovernment, because the primary means of eradicating racial discrimination is through public policy, legislation, and court cases.

Racist and antigovernment attitudes will often coexist comfortably. But the opposite will not always, be true; there are many people with extreme antigovernment views who are not racists. But there is a synergistic relationship developing here, because racists are establishing bridges to a broad spectrum of people who are against the government, not because they are racists, but because they do not like taxes, or what is being taught in the public schools, or what is going on with abortion rights or gun control.

However, to the extent that there is an engine driving the militia movement, in terms of the leadership, there is a clear and unambiguous racist connection to much of the leadership of the movement.

Waco and Ruby Ridge and the passage of the Brady bill were events that most people in the antigovernment movement, racist and nonracist alike, related to as evidence that ratified their worst fears about government. These events, transformed the antigovernment movement into an umbrella movement that now more or less accommodates disparate groups that were not previously aligned or united.

I want to be clear about the fact that we are talking about a very amorphous movement. We are not talking about a professional association. There is no official structure or membership to the antigovernment movement. There are some groups which call themselves militias that are not militias at all in the sense of acting as the paramilitary wing of the antigovernment movement, while others that call themselves information groups or hunting clubs do in fact constitute such militias. The best way to identify the components of the militia movement is not to look at a group's label, but at its characteristics.

Militia members who call themselves Constitutionalists recognize only part of the Constitution. Constitutionalists do not recognize the legitimacy of modern constitutional amendments. They refuse to accept that the Constitution itself is a fluid document in the sense that it allows for its own evolution through the enactment of amendments.

They reject out of hand other important substantive components of the Constitution, such as the Supremacy and Poverty Clauses. Their readings of state power and federal authority in the Ninth and Tenth Amendments are just totally wrong.

Estes Park, Colorado, in 1992 which was convened by Christian Identity Pastor Pete Peters, and attended by Klansmen, neo-Nazis, tax protesters, home schoolers, extreme gun rights activists, and future militia leaders. Speakers at the conference included Louis Beam, a former head of the Ku Klux Klan in Texas, and Larry Pratt, head of the Gun owners of America and currently on leave as co-chair of Patrick Buchanan's presidential campaign.

The meeting at Estes Park was called shortly after the confrontation had ended between Randy Weaver and federal authorities at Ruby Ridge. At this meeting, previously disparate and unconnected groups came together and became the early organizers and members of the extremist antigovernment movement that we see today, of which the militia movement is a part.

Congressional hearings were held on the Weaver incident, five high-ranking FBI officials were demoted, and the FBI's policy regarding the use of force was reexamined. The behavior of some of the federal agents involved in this incident appears to have been improper with regard to the resort to deadly force. But the extremists have extrapolated from the tragic mistakes that took place at Ruby Ridge, and have applied them across the board to every federal law enforcement agent, arguing that the entire federal government is a tyranny that requires an armed citizen response on a mass scale.

Our country was founded by rugged individualists who became accustomed to making decisions in their lives relatively unconstrained by governmental regulation. This era, when people moved west to settle the country with their guns and families, is romanticized by the antigovernment movement as a utopian period in the country's history.

But that era is long past; there were far fewer people in the country then, our natural resources were abundant and pristine, and there were no modern communication or transportation systems, which made whatever government regulations that might have existed less enforceable.

Today we are a country of over 260 million people, resources are scarcer, and there is a heightened concern for protecting the environment. We also have highly developed communication and transportation systems that make previously secluded areas of the country accessible to almost anyone. As a result, the government now has the ability to monitor compliance and enforce these laws.

In general, a debate about the reach of federal authority is certainly appropriate if it takes place within an informed and balanced view of federal power and its constitutional parameters.

Those in the antigovernment movement have expanded their notion of individual rights beyond that which the Constitution actually provides, and have fallen into a conspiracy mentality that is irrational and, again, has little to do with what the Constitution and constitutional rights are about. Much of this talk about federal tyranny has to do with people claiming rights which simply do not exist. If you are someone who believes that whites are superior and blacks are inferior, the fact that an antidiscrimination law or hate-crime law exists is going to be a big problem for you. And if you are someone who believes that the government has no right to tax a portion of your income, the fact that there are taxes is going to shake you to the core. Likewise, if you believe that you have a constitutional right to possess and purchase any kind of firearm at any time with no restrictions, then you will view gun control as evidence of a tyrannical government. Or if you claim a sovereign right as an individual citizen to use federal land in any way that you wish, then you will view federal land management and environmental regulations as tyrannical.

The fact is that the federal government has the constitutional authority to do all these things - to enact antidiscrimination and gun-control laws, to tax people's income, and to regulate federal lands. But the notion that the government does not have this authority makes many people see the government as the biggest enemy and threat to their way of life.

The people who are against land-use and environmental regulations are much more likely to be in rural areas, or in western states where much of the land is owned by the federal government. And if you have Second Amendment extremists who are active in this movement, who generally also live in rural areas. The same is true for tax protesters; the movement generally, it is not a metropolitan movement. The kinds of concerns they have are less prominent in urban areas.

There is a large body of people out there who think that the government does not work well for them on a number of levels.

But there is a big difference between saying that something is not working well and needs to be fixed through legal and political mechanisms, and contending as the extremists do that the government is illegitimate and declaring outright war against it.

Most people will say that the appropriate response is to work through existing peaceful mechanisms, through the political process, through education, through the press, through a variety of legal means that have made our Constitution the oldest Constitution in the world. Anyone can say there is something wrong. But the question is, does that mean we destroy democracy and the Constitution to deal with the problem? Those in the antigovernment say yes.

Our process, with its checks and balances, in many ways is supposed to be a maze. It is supposed to put up obstacles against certain kinds of fundamental change; and if we have a marketplace of ideas, we might not get an immediate solution, but we are likely to get a well-thought-out solution, and we are likely to get one that reflects the democratic ideals upon which our country is founded.

For many people, this is frustrating. But it is important to recognize that, in a democracy such as ours, although we often do not like the result we get, the process itself is a legitimate one.

Our society is based on addressing and resolving societal problems through various peaceful mechanisms. This might not be the most efficient way to do business, but it is most likely to result in a peaceful resolution of grievances that reflects the view of a majority of our citizens, while at the same time protecting the rights of the minority. So on this level, the threat that exists is the threat of intimidation, simply by virtue of the fact that some private citizens are militarily organized, heavily armed, and extensively trained for violence against the peaceful conduct of government and public business.

On another level, militia members and armed extremists are actually threatening government officials and interfering with their ability to do their jobs properly. We have a range of government employees, including judges, prosecutors, tax collectors, forest rangers, and police, who are actually being threatened or met with violence from antigovernment extremists. And this has happened and is happening in many parts of the country.

The actual threat and use of violence against public officials by antigovernment extremists is a pretty widespread phenomenon at this point.

These incidents involve people who are carrying out their terrorist political objectives. Intimidating public officials or obstructing them in the administration of their duties is a crime, as are the traditional crimes of assault and making threats.

A threat issued against a public official constitutes a crime depends on the context in which the threat is issued. Whether you have the ability to carry out the threat, whether the threat is directed at a particular person, or whether the threat specifies an attack at a particular time - these are the kinds of things that determine the criminality of a threat against a public official.

Kenneth Toole, Director of the Montana Human Rights network, writes:

Militia members are politically active, threatening public officials, talking about the need to "war" with their enemies. How comfortable would you be signing a letter to the editor, showing up at a community meeting, running for office?

The main impact of the militia movement has been its thuggish intimidation of grass-roots democracy in small communities across America. In some counties the fear created by the militia is akin to that produced in the South by the Ku Klux Klan in the 1960's. Public officials and private citizens actually have to weigh whether speaking their minds will result in an armed response from the local private armies…This is serious business indeed and constitutes plain and simple terrorism.

Part of the problem that we have had in addressing this threat is that we have not fully utilized to date those laws and methods that we have at our disposal for dealing with extremist violence. We can also enforce existing weapons and explosive laws.

I think that the keys to addressing this issue are some of the tools that we already have at our disposal in various states. For example, seventeen states have laws on the books that ban paramilitary training, another seventeen states have laws that ban private armies, and another seven states have laws that ban both paramilitary training and private armies. Increased enforcement of these laws, though not always easy, is one of the available remedies that is constitutional. To the extent that there are states that do not have these laws, they should enact and enforce them.

There is also a federal statute that prohibits paramilitary training, but this law only punishes trainers; it does not punish the trainees. We should close this loophole to prohibit people from receiving paramilitary training and instruction.

These statutes, both at the state and federal level, are constitutional. There are remedies for this problem within the traditional criminal law context.

Perhaps the most misunderstood provision of our Constitution is the Second Amendment. The Second Amendment simply does not provide a private individual with the right to own or possess a firearm. Every modern federal court decision to the subject confirms this. Moreover, the Second Amendment does not give private citizens the right to establish and maintain their own private armies. The Second Amendment's "right to bear arms" has been interpreted by the courts to protect state-sponsored militias from undue federal interference.

Case law on the subject includes two Supreme Court cases - United States vs. Miller and Lewis v. United States. The Miller case is the principal modern case on the Second Amendment. The case involved a violation of the 1934 National Firearms Act by two defendants, who were charged with transporting an unregistered sawed-off shotgun in interstate commerce.

In Miller, the Court decided that the Second Amendment exists to protect state militias, and it is only in the context of the protection of state militias that the amendment should be analyzed and applied. The Court analyzed the right found in the Second Amendment in relation to the preservation of a state militia, and simply found that individualized ownership of a sawed-off shotgun did not come within that right.

The Lewis case dealt with a provision in the 1968 Gun Control Act, which prohibited the possession of guns by convicted felons. The Court looked at the hierarchy of constitutional rights, and looked at gun rights in the context of this hierarchy. In the Lewis case, the Court found that the right protected by the Second Amendment was not a fundamental constitutional right, and that legislative restrictions on the right did not require the Court to apply strict review to the case.

You may remember that the Supreme Court was asked to analyze this case in the context of gun ownership being a fundamental right. There are certain rights in the Constitution - such as freedom of speech, freedom of religion, freedom of the press - that are regarded as fundamental rights. Our fundamental constitutional rights are protected from governmental intrusion by the application of this rigorous test of judicial review.

On the other hand, the Supreme Court uses another standard of judicial review when determining the constitutionality of restrictions on rights that are not fundamental rights. This lower standard of judicial review is called rational basis scrutiny, because the standard that the Court applies to the restriction is a determination whether or not there is a rational basis for the government's restriction on whatever right might be at issue.

The fact that the Supreme Court applied rational basis scrutiny as opposed to strict scrutiny in the Lewis case leads to the conclusion that there is no fundamental right to keep and bear arms under the Second Amendment. The right does exist under the Second Amendment - of the well-regulated state militias to keep and bear arms - is a constitutional right, but it is not one of the upper echelon fundamental rights.

In the political arena, however, the meaning of the Second Amendment is very different. It is invoked to argue that gun control violates the Constitution. This argument is simply not accurate. Whatever restrictions the Second Amendment places on governmental activity only apply to the actions of the federal government. Unlike other rights found in the Constitution, the Second Amendment has never been held by the Supreme Court to restrict the conduct of states. The Second Amendment still allows the states full authority to restrict gun ownership.

The Supreme Court has found that the Fourteenth Amendment protects citizens not only from the infringements of rights by the federal government, but from the state governments as well. The Sixth Amendment right to a jury trial and the First Amendment right to freedom of speech have been held to apply to the states. However, the Second Amendment has never been held to apply to the states.

The Second Amendment merely protects the right of the well-regulated militias of the states as instruments of state government. It does not protect private gun ownership.

In the Miller case, the Supreme Court ruled as follows:

In the absence of any evidence tending to show that possession or use of a [shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

In the Lewis case, while quoting from Miller, the Supreme Court ruled as follows, while reviewing the constitutionality of the provisions in the 1968 federal Gun Control Act:

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties…The Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well-regulated Militia.

In United States v. Hale, the U.S. Court of Appeals for the Eighth Circuit, while referring to Miller, stated:

Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons…The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well regulated militia," the Second Amendment does not guarantee the right to possess the weapon.

The decision in Hale was rendered more than fifty years after Miller, so that should give you a sense of the uninterrupted precedent that Miller has set. And there have been many other federal cases on the Second Amendment in between. For example, in Stevens v. United States, the U.S. Court of Appeals for the Sixth Circuit said:

Since the Second Amendment right "to keep and bear arms" applies only to the right of the state to maintain a militia, and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

Another important federal case was United States v. Warin, where the U.S. Court of Appeals for the Sixth Circuit turned away a Second Amendment challenge to a federal law requiring the registration of automatic weapons. In Warin, the Sixth Circuit stated that "[I]t is clear that the Second Amendment guarantees a collective right rather than an individual right," and referred to the "erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of states.

All of the federal cases on the Second Amendment and federal gun-control laws since Miller, and there are perhaps fifteen or twenty, have ruled that the amendment does not give private citizens the right to purchase or possess firearms, or to form a private army.

The militias do not recognize the courts' interpretation of the Second Amendment, either because they do not recognize the legitimacy of the federal judiciary, which is the case with many antigovernment extremists, or because they do not agree with the Supreme Court's interpretation in the Miller case.

In an important law review article on the Second Amendment, gun rights, and the meaning of constitutional references to the militia, Keith Ehrman and Dennis Henigan write that "[t]he proposition that Miller recognizes the protected status of any weapon that could have a military use has been rejected by every court which has addressed it." The authors write: "This argument seems absurd on its face, because it would accord constitutional protection to machine guns, bazookas, hand grenades, and other military hardware of staggering destructive potential." Yet this is precisely the argument that the NRA and militia groups advance when they claim constitutional protection for these kinds of weapons.

In 1942, three years after the Miller case, the U.S. Court of Appeals for the First Circuit rejected a Second Amendment challenge to the 1938 Federal Firearms Act, which prohibited fugitives and felons from transporting firearms in interstate commerce. In this case, Cases v. United States, the First Circuit, while referring to "distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns" argued that "it would be inconceivable that a private person could have any legitimate reason for having such a weapon." Ehrman and Henigan further observe: "The court in Cases also recognized that since some sort of military use seems to have been found for almost any modern lethal weapon, to read Miller to grant constitutional protection to all weapons of military potential would be to empower the federal government to regulate only weapons which can be classified as antiques or curiosities, such as the flintlock musket.

The key to understanding the federal courts' interpretation of the Second Amendment lies in the nature of the debate at the Constitutional Convention between the Federalists, who favored a strong government, and the Anti-Federalists, who feared a strong federal government.

Ehrman and Henigan describe the debate at the Constitutional Convention:

…Nowhere in the Constitutional debates was there a discussion of a right to keep and bear arms. The delegates at the Convention, however, did spend a good deal of time debating the roles of the army and militia, and these discussions are vital in understanding the Second Amendment…In the context of the Constitution, the militia was viewed as a state-organized, state-run body, it was not simply a term for the citizenry at large…The militias were seen as state units which could be armed by the government, and which could be called out be the states to quash rebellions, and defend the state from invasion.

This is why the courts have never ruled that the Second Amendment gives private individuals a constitutional right to have a gun.

The insurrectionist mission of the private militias of today is totally antithetical to the mission of the state-sponsored militias of the colonial period, which, in part, was to subdue armed insurrections against the state.

A handful of legal scholars as well have made this argument in law review articles that dissent form the judicial consensus on the meaning of the Second Amendment.

The most prominent scholar to argue that the Second Amendment gives private citizens the right to armed insurrection against the federal government is Professor Sanford Levinson. Levinson argues that by creating an armed citizenry at large to be the militia, and by giving that right to individual citizens, the Second Amendment provides a right to armed opposition against a tyrannical government. This interpretation of the Second Amendment is known as the insurrectionist theory that the armed private militias subscribe to.

However, our Constitution provides institutional and procedural checks and balances, and also establishes individual freedoms as fundamental rights, to legally and peacefully prevent the formation of a tyrannical government. We have three branches of government - legislative, executive and judicial - with no single branch being superior or totally unaccountable to the others. And we have the Bill of Rights that protects individuals from government encroachment.

This constitutional framework is a magnificent and brilliant charter for the governance of a free people. There simply is no right to armed insurrection in the Constitution. The belief in such a right poses a grave danger to the Constitution. And a very small handful of legal scholars and gun-rights lobbyists who are proposing the existence of a constitutional right to armed insurrection are perpetrating a dangerous fraud upon this country.

We should be asking advocates of the insurrectionist theory how this theory would be put into practice. Who is going to determine when the government has become tyrannical? What is the reach of the right in terms of the weapons that we are entitled to have? What are the parameters of this kind of armed engagement against the government? Do citizens really have a constitutional right to attack with military weapons the Supreme Court, or the Congress, or the White House, or federal buildings and federal employees? If this were really a constitutional right, wouldn't there be some guidance in the Constitution to help us answer these very disturbing questions?

Dennis Henigan is probably the leading litigator and writer in the country today on constitutional issues relating to firearms. This is what he had to say recently about Sanford Levinson's insurrectionist theory of the Second Amendment:

And some serious questions need to be asked of someone like Levinson. For example if there is this constitutional right, and if it is individual in nature, does it encompass as individual's right to determine when government has gone too far? Obviously, Levinson would not want government to determine that because that would defeat the right. So, if it is to be an individual right, in any meaningful sense, then I as an individual must have the constitutionally guaranteed right to decide when my government has gone too far and then to take up arms against it.

Well, if that's where we are going with this, does that mean that I have the constitutional right to assassinate public officials if I believe in good faith that they have gone too far? Would the Ku Klux Klan have the constitutional right to attack public school officials who are trying to enforce desegregation because the Klan believed in good faith that that was tantamount to tyranny? I can't imagine any person taking that view of our Constitution, and yet it seems to me to be a view that is the logical extension of Levinson's theory of the Second Amendment, as well as the NRA's theory of the Second Amendment, and the logical extension of all of the rhetoric we hear about having the right to bear arms in order to resist tyranny.

If this is seriously being suggested as a constitutional right, then these advocates, I believe, are sowing the seeds of anarchy in this country.

During or before the time when George Washington was president, armed rebellions were put down - the Whiskey Rebellion in 1794, for instance, as well as Shays Rebellion in 1786. There is simply no basis, either in history, law, or logic, for this insurrectionist theory.

The militias also see their existence justified by the Second Amendment in the sense that the amendment provides for the establishment of a well-regulated militia. The militias point to their command structure and training and say that they are well regulated. Actually, the more organized and well-trained an armed militia group is, the more likely it will be that they are engaged in illegal organizing and training.

Although citizens are free to organize to oppose government policies, there is no constitutional right for a citizens' organization to posess firearms. This does not mean that individual militia members cannot legally possess firearms. And if a group legally possesses firearms, then they do have a constitutional right to associate if they are not a military organization. But this is totally different from arguing that an individual or a group has a constitutional right to possess firearms and to organize as a private military force. Such rights simply do not exist under the Constitution.

So we should distinguish between the rights that are granted by the Constitution and rights that exist under statutory law. For example, the purchase and possession of automatic weapons - machine guns - is prohibited by federal law. Thus, any militia member in possession of a machine gun would be violating federal law. However, a militia member who possesses a firearm in compliance with federal law legally possesses that firearm. But he does not have a right to use that firearm for paramilitary training, and he can be prevented from using a firearm for such training if state or federal law prohibits paramilitary training.

The Second Amendment does not prevent the enactment of federal or state gun-control laws. But citizens can still retain a right to firearms possession through statutory law and under state constitutions so long as they do not conflict with federal provisions. Such regulations reflect the government's interest in public safety, and not some clandestine government conspiracy to disarm the country for the purpose of an armed takeover by whomever.

The controlling Supreme Court case ruling on the status of private armies and military training is Presser v. Illinois, an 1886 case. In this case the Superior Court upheld the authority of the state of Illinois to ban private military organizations.

Remember that we mentioned before how the Second Amendment has never been applied to limit states. Based on this fact, Presser is still good law and has never been overturned. Let me quote a key passage from the Presser ruling:

The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without an Act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the State and Federal Governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

The Presser case is key to our statutory remedies banning militia organizing and training, and its ruling places civilian militias as well as paramilitary training outside the protections of the Constitution.

In the 1980's, the Klan in Texas has created their own private army, which was intimidating and terrorizing Vietnamese fisherman in Galveston Bay.

The court also enjoined the Klan for operating a private paramilitary army in Texas in violation of Texas law. The court in this case ruled that "Texas has the power to regulate the formation of private armies and such regulation does not violate either [the] First or Second Amendment." It also said that its "[I]njunction against a private association's military activities does no violence to the Second Amendment" and that "[t]he Second Amendment does not imply any general constitutional right for individuals to bear arms and form private armies."

The federal district court in Houston in the Vietnamese Fishermen case cited Presser as the Supreme Court precedent in this area, and also cited a ruling in the 1940's by a New York State appellate court in a case involving an armed civilian militia in New York. In Application of Cassidy, the New York ruled as follows, as excerpted by the federal court in Vietnamese Fishermen:

There can be no justification for the organization of such an armed force. Its existence would be incompatible with the fundamental concept of our form of government. The inherent potential danger of any organized private militia, even if never used or even if ultimately placed at the disposal of the government, is obvious. Its existence would be sufficient, without more, to prevent a democratic form of government, such as ours, from functioning freely, without coercion, and in accordance with the constitutional mandates.

Theses three cases - Presser, Vietnamese Fishermen, and Application of Cassidy - show that the Second Amendment does not protect the formation and existence of private armies, and is not a barrier to legislation banning private armies and paramilitary training.

The First Amendment does not protect the right of people to assemble with the intent of committing a civil disorder. It protects "the right of the people peaceably to assemble." And Presser has ruled that private armies are not protected by the Constitution. The government often regulates associational relationships. Marriages, dwelling occupancy, and professional licensing are a few examples of regulated associations. So neither the First Amendment nor the Second Amendment bars states from prosecuting individuals under the statutes that prohibit paramilitary training and militia organizing.

With these statutes the government can target militias, but not because it finds their antigovernment rhetoric repulsive. Rather, it targets them because of the dangers private armies pose to a democratic society - because of the inherent risk to societal order in having private military bodies with sophisticated military-type weapons unanswerable to any kind of governmental authority.

And because of the inherent threat posed by private armies, the government has a compelling state interest to being these bodies under its regulatory authority. But the government has a responsibility to enforce these kinds of laws in a content-neutral manner, and cannot target groups for selective enforcement because it does not like the ideas that the groups are expressing.

The First Amendment protects freedom of association, and it protects the expression of ideas - even unpopular ideas. But it does not protect the right of individuals to gather at any time and in any manner in which they see fit. The First Amendment's guarantees apply to the right of people to peaceably assemble and to petition the government for redress of grievances, and the First Amendment most vigorously protects those associations that involve the peaceful expressions of political ideas.

Leaderless resistance is a way of organizing that has been put forth most recently by white supremacist and militia leaders, and which creates small autonomous groups of armed individuals poised to commit random acts of sabotage and terrorism. They are not part of an organized command and control structure per se. They do whatever they like, separate from any chain of command or authority, to inflict damage or injury to infrastructure targets or innocent citizens.

This is more difficult to address by any single new statute. Certainly to the extent that they engage in paramilitary training they would violate paramilitary training statutes. To the extent that they plan to commit criminal acts, they would violate conspiracy statutes. If they are seeking to overthrow the government, they would be in violation of treason statutes.

We are not merely limited to the application of the anti-militia and anti-paramilitary training laws in dealing with the proliferation of militia groups and underground terrorist cells. But certainly the anti-militia and anti-paramilitary training laws are part of an overall framework for state and federal prosecutors in deterring and preventing violent activity.

These laws are vastly under-enforced, but not necessarily due to malevolence on the part of prosecutors. Although we have had private armies around for some time, the way they exist now is a relatively new phenomenon. Also, I think in many places local authorities might be intimidated by these groups, and many of these militia groups have not committed the kind of overt activities that would cause them to come under the scrutiny of local authorities.

It is very difficult to get information about what people are doing. The fact that someone is dressed in camouflage and has a rifle is not in and of itself an indication of a criminal act. We need to be very careful not to tread on the rights of innocent people.

If you have a private army in a state that has an anti-militia statute, and the members of that army merely associate together as an organized body - they do not even have to train - that is a crime. And that is punishable.

I think though that there is a problem with regard to evidence. And that is, the association of a bunch of people in uniform with weapons does not make an army for the purposes of a criminal conviction. You would have to show that they are a military-type body. And certainly an association of people with weapons is probative of that. But if some good ol' boys dress up in camouflage, even if it is together in a group, without some other kind of corroborating evidence that this group is a private army or militia, it is insufficient to establish the violation of an anti-militia statute.

There are many factors that come into play that make enforcement of laws that are on the books difficult. We just covered evidentiary problems. But there is also a problem in the sense that in many states these laws have not been tested very much. Law enforcement officers may not be familiar with them. Given the way that many of these groups operate, the prosecutors may not know that they exist. Also, many times in the hierarchy of criminal activity, these prosecutors might feel that they would have a stronger case in court if they waited for some kind of more overt activity. In many instances, frankly, there is an intimidation factor.

There is a big problem with not enforcing these laws, which is that individuals within these private armies will become emboldened by the lack of enforcement. They will take non-enforcement by the lack of enforcement. They will take non-enforcement as a tacit sign of approval for their activities, which are at the very least intimidating, and at the most represent a serious potential threat of violence and a threat to democracy. Their stated purpose, their access to sophisticated military weapons, and the fact that they train for violent actions pose a significant threat to orderly democracy. And many militia members talk openly of resorting to the cartridge box instead of the ballot box. And I think that the implementation of that course of action through militiaristic organizing is dangerous and should be dealt with firmly, squarely, and unambiguously when appropriate.

There are enforcement and evidentiary problems with prosecuting individuals under nearly every criminal law, and that is how it should be in a free society, because this constrains the government from incarcerating people at random. But just because I point out legitimate issues that need to be dealt with in terms of enforcement and evidence does not mean that states should not be enforcing these laws.

The concept that state or county laws can trump federal law is just not found in the Constitution; in fact, the situation is quite the contrary. Article VI, section 2 of the Constitution, known as the Supremacy Clause, is unambiguously clear about federal authority, and makes federal law the supreme law of the land in the United States. So there is no constitutional basis for claiming that county law is supreme.

In addition, the jurisprudence under the Supremacy Clause has said that in the event of a conflict, state law must at all times yield to federal law. This is called preemption.

There are two instances where preemption actually comes into play. One is called "actual conflict," where there is a clear and direct actual conflict between a federal statute and a state statute. And in those instances, the federal law simply preempts state law. The other instance is called "conflicting objectives," where even if on their faces these laws do not directly conflict, it would be impossible to comply with both. Here, the federal law or regulation stands.

There is a circumstance where the federal courts will allow a state law or county law to stand in the face of a federal law. This happens when a state or county law supplements a federal law. So for instance, if there is a federal antidiscrimination law, then there can be a similar state law. Obviously, there can be state and local laws regulating areas where the federal law is silent.

In general , where the federal government has ownership of land, the federal government certainly can decide how that land is used. Even in instances where the county owns land, the county can be constrained by federal regulation. For instance, let us say that the county wants to open a toxic waste dump, and there is a federal law that deals with how toxic materials are disposed of. The federal government can prevent the county government from using that land in a matter that violates federal law.

But there are obviously limits. The federal government certainly does not have the right to bulldoze city hall. The federal government, in fact, is also constrained by the Constitution. It cannot take property without due process, for example. But much of this tension comes about where the government basically licenses private individuals to use government land in a certain way - for example, licensing ranchers to have cattle graze in a certain area. But the federal government, just like any other land owner, has the right to relinquish a license if it chooses for reasons having to do with inappropriate use or violation of the conditions of the license.

In March 1996, Nye County in Nevada lost a court case against the federal government involving its claim to control federal land. This claim is a recent episode in Nevada's so-called Sagebrush Rebellion, which began in 1979 after the Nevada legislature passed laws claiming control over all public lands in Nevada. In 1993 Nye County passed a similar resolution, the legality of which was just rejected.

About three dozen other western counties in the United States are challenging the authority of federal agencies to enforce regulations on federal land. But, generally, these claims have no constitutional merit.

Many antigovernment extremists argue that U.S. membership in the United Nations is treasonous, for reasons which are not clear to me; but this is a common charge. Referring again to the Supremacy Clause of the U.S. Constitution, which also makes duly-ratified treaties the law of the land in the United States, how would you respond?

Given the provision of the Supremacy Clause that addresses treaties, and given that the U.N. Charter is a treaty that was signed by the President of the United States and ratified by the U.S. Senate in accordance with the ratification requirements of the Constitution, U.S. membership in the United Nations is not treasonous. Our membership in the United Nations is fully and legally valid under the Constitution. There isn't any question among legal scholars about this.

But many antigovernment extremists argue that U.S. membership in the United Nations is an infringement on the sovereignty of the United States, and on the rights of American citizens. Basically, however, a treaty is similar in force to federal law. If a state law or county law conflicts with a treaty, that state or county law will have to yield. But a treaty cannot take away someone's constitutional guarantees, such as freedom of speech or religion, or the right to vote. So our membership in the United Nations is not treasonous, and the Constitution prevents the United Nations or any other international body from infringing on the fundamental rights of American citizens on American soil.

What motivates people to join leaderless resistance cells and prepare for a war of insurrection against the federal government, one could read the Declaration of Independence to find this inspiration. For example, here is what it reads in part:

That when ever any Form of Government becomes destructive of these ends, it is the right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happines.

Here is another sentence from the Declaration of Independence:

But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under the absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The Declaration of Independence addresses the tyrannical English government's treatment of the colonies, and the grievances cited in the Declaration began the process that led to our Constitution, which contains the checks and balances and the protections that the colonists did not have to protect them from government abuse.

The Declaration of Independence confers no rights or privileges to any citizen today. It is a very important document historically, in the sense that it effected our dissolution from the Crown. For this reason it is very significant. But the Constitution, not the Declaration of Independence, is the document from which all laws and rights in this country receive their validity.

When they cite the Declaration of Independence, is more of a philosophical claim than a legal one. But even in the philosophical realm, it is an illegitimate claim. The remedy to the grievances found in the Declaration of Independence is the Constitution. The Constitution is the lawful framework in which the grievances listed in the Declaration were remedied. All of our laws, institutions, and procedures by which we govern ourselves today, reside and rest in the Constitution.

Is the common law courts movement the "judicial" wing of the antigovernment movement?

In some instances they are nothing more than sounding boards for individuals or groups in the movement. But in some areas I think they represent a significant threat.

The idea that individuals are vesting authority in themselves to punish others under the force of law is not something that we can tolerate in a civilized democratic society. We cannot have private judicial fiefdoms springing up across the country. This is anarchy, and obviously not representative of a legitimate judicial system.

Certainly they have a First Amendment right to have a mock court hearing. But they have no right to require someone to appear before them, to try to impose their mandate on anyone, or otherwise assert that their hearings have the force of law.

To the extent that someone wants to make a political statement by conducting a parody of something, they can do that. People are permitted to do a lot of idiotic things. But if they try to enforce what they are doing, at that point they are involved in impersonating court officials. This is not permitted under the First Amendment.

There have been several instances, including courts that have issued rulings and threatened government officials.

If you impersonate a government official, or if you make a bogus legal instrument, that is generally a crime. Common law courts are prohibited by law from issuing subpoenas and warrants and things of that nature. One cannot legally concoct a false, pseudo-official document, and attempt to enforce it.

"Proceedings" that resemble peaceful protest are protected. Attempts to enforce bogus judicial rulings that might arise out of this protest are definitely not protected.

The Constitution mandates that the Supreme Court shall be the highest court in the land, and that the Congress can establish lower courts. Certainly states have the ability in our dual sovereign system to have their own courts.

The Ten Commandments, the Magna Carta, and the Declaration of Independence are not legal instruments that convey any kind of legal authority. They are certainly meaningful historical and philosophical documents. But they are not legal instruments for our governmental system.

Traditionally, terrorists have preferred bombs. But recently we have seen plots involving the use of toxins and pathogens. We have seen antigovernment extremists in possession of ricin and other types of toxic substances, such as bubonic plague and cyanide. The manufacture and dissemination of these dangerous substances are outlined in the literature that permeates the antigovernment movement. Given the accessibility of these substances, and the threats to use them, I think we have a very serious problem on our hands.

In some respects, the federal government has recognized the increasing threat of domestic terrorism, including the use of chemical and biological toxins.

Let me talk about anthrax for a second. Anthrax is a virus that, if released through an aerosol disbursant in any major city, could result in hundreds of thousands of fatalities within days. So I think that we have to wake up and realize this could happen unless we begin to take some proactive measures to address this threat. For example, it is not impossible, or even that difficult, to gain possession of a small amount of anthrax. And even a very small amount of anthrax would be enough to cause the kinds of fatalities that I just described. So, clearly, we need to tighten up laws that govern the possession, transport, and controls on anthrax, ricin and other pathogens and toxins.

But we still lack an appreciation of the threat that exists. There is a heavy and ingrained glorification of violence in this movement, and attacks on infrastructure targets, such as dams, power stations, transportation and communications systems, as well as symbolic targets, such as national monuments and landmarks, are glorified. And attacks on these kinds of targets have been attempted in some places. In other words the lifelines and national symbols of our country are vulnerable to very serious assault terrorists using either explosives or toxins.

In the book, The Turner Diaries, which Timothy McVeigh allegedly read avidly and sold at gun shows, infrastructure facilities and federal buildings were attacked by domestic terrorists. I do not think that it really takes a seer to realize that there are more bombers of federal buildings and infrastructure targets out there.

In Minnesota, four members of a Patriots council were charged with an attempt to poison federal government officials with ricin, one of the most dangerous toxins known.

In November of 1995, a member of the Aryan Nations was convicted of ordering bubonic plague from a private laboratory, for which he paid only $240.

In Arkansas, a survivalist was charged with possessing 130 grams of ricin, which is enough to kill about fourteen hundred people.

in addition to incidents with these toxic agents, there were a number of bombing plots that took place throughout 1995. These plots involved federal buildings and other federal targets, but were thwarted by federal agents before these targets were actually attacked. It is almost inevitable, however, that some of these plots will not be prevented.

Committing acts of terrorism is part of the ideology of these groups. This terrorist mission is glorified in The Turner Diaries and by Louis Beam, the former Klansman and now paramilitary activist. So, yes, the leaderless cells are terrorist organizations who are preparing to commit acts of terrorism in the United States.

The idea of leaderless resistance is a growing part of the ideological culture of the antigovernment movement. It advocates taking things into your hands and doing what you can to cause havoc to the government and its affiliated institutions and agencies.

There is also an important practical aspect to the leaderless cells. From a practical standpoint, leaderless cells insulate the overall movement from collective criminal or civil liability, and it also makes these small groups harder to detect and infiltrate by law enforcement.

We have people in office right now across the country who are supporting laws, advocated by militia members, that would legalize militia activity. A bill that would have the effect of legalizing militia organizing and paramilitary training, and so far it has passed the House Judiciary Committee in the Alabama legislature.

On the federal level, there are some members of the current Congress, recently elected to office, who have demonstrated support for the extreme antigovernment agenda of militia groups.

If you want to peer into the future, look at such things as the numerous terrorist attacks in the Middle East, the Tokyo subway attacks with poison sarin gas, and the terrorist attacks that have taken place in London, in addition to the bombing of the federal building in Oklahoma City. The question in my mind is not whether there will be additional brutal terror attacks in the United States, but when and where they will take place, and how bad they will be. The conditions that are present right now pose a serious threat of escalation of domestic terrorism in this country.