Democrats Propose Bill to Neuter Militias

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. 

The legislation would prohibit publicly patrolling, drilling or engaging in harmful or deadly paramilitary activities, interfering with or interrupting government proceedings, interfering with someone else exercising their constitutional rights, falsely assuming the role of law enforcement, and “training to engage in such behavior.” 

The lawmakers propose different tiers of criminal penalties, depending on whether violations result in injury or property damage. The bill would establish harsher penalties for repeat offenders, and probationary sentences for first-time offenders. It would also create paths for the DOJ and private individuals to seek civil federal lawsuits against paramilitary activity. 

This legislation comes almost exactly three years after Jan. 6, 2021, when thousands of Trump supporters—many dressed for war—stormed the U.S. Capitol over conspiracy theories about the presidential election results. Leading the charge were members and leaders of the Oath Keepers, a militia, and Proud Boys, a quasi-paramilitary group often described as a far-right street-fighting gang. Top brass of those organizations have since caught seditious conspiracy charges. 

“Private paramilitary actors, such as the Proud Boys and Oath Keepers, pose a serious threat to democracy and the rule of law,” Sen. Markey said in a statement. “We must create new prohibitions on their unauthorized activities that interfere with the exercise of people's constitutional rights. The forces of bigotry, hatred, and violent extremism must be stopped for the sake of our democracy.” 

The Capitol riot was the culmination of surging anti-government sentiment and paramilitary activity seen throughout 2020. That year, armed paramilitary groups swarmed government buildings to protest COVID-19 restrictions, plotted to kidnap Michigan’s governor over those restrictions, conducted armed neighborhood patrols in response to racial justice protests, and killed law enforcement officers. 

The modern paramilitary movement surged in the 1990s, galvanized by new federal gun laws, and by armed FBI raids on extremist compounds such as Waco and Ruby Ridge. The movement has waxed and waned in the decades since. And as the dust settled from the Capitol riot, many asked why these heavily armed, organized groups had seemingly been able to operate with impunity for so long.

Gun rights organizations and anti-government groups have typically argued that paramilitary activity is constitutionally protected by the Second Amendment’s language about “a well regulated Militia, being necessary to the security of a free State.” 

But constitutional experts hold that it is not protected. After the violent white supremacist rally in Charlottesville, Virginia in August 2017, a team with Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) sought to examine the legality of the kind of brazen paramilitary activity on display that weekend. They found that all 50 states had some kind of laws on the books, but were rarely enforced. 

The team, led by Mary McCord, former acting assistant attorney general at the Department of Justice’s national security division, also found that the historical context of “militia” did not mean a private paramilitary group that was answerable only to themselves, but an armed group that predated the National Guard, was first established in the colonies in the 1600s and was meant to be deployed at the behest of the governor. Additionally, McCord told The Trace in an interview two years ago, Supreme Court decisions in 1886 and 2008 found that the Second Amendment did not prohibit states from banning private paramilitary groups. 

“Our legislation makes the obvious but essential clarification that these domestic extremists’ paramilitary operations are in no way protected by our Constitution,” Rep Raskin said in a statement regarding Thursday’s bill.

How the proposed legislation is received by hardline conservatives in Congress and by Trump voters will remain to be seen. Grievances against the federal government, particularly the FBI and DOJ, have continued to mount since 2021, amid the slew of indictments against Trump and the massive prosecution effort against Capitol rioters. A recent poll found that a quarter of American voters believe the baseless “Fedsurrection” conspiracy theory that the FBI instigated the Capitol attack. These grievances and conspiracies have established the false narrative that the Biden Administration is hellbent on persecuting its ideological or political opponents. 

(Disclosure: Gavin McInnes, who founded the Proud Boys in 2016, was a co-founder of VICE in 1994. He left the company in 2008 and has had no involvement since then.)