All states prohibit 'militia extremists' and paramilitary activities. So why aren't they stopped?

WASHINGTON – "People are getting injured and our job is to protect this business. And part of my job also is to protect people. If someone is hurt, I'm running into harm's way. That's why I have my rifle."

So said Kyle Rittenhouse as he stood in front of a boarded-up building in Kenosha, Wisconsin, in August.

The 17-year-old, police said, shot three people that night – two of them fatally – as heavily armed civilians who showed up to patrol the streets of Kenosha clashed with demonstrators protesting the police shooting of another Black man. Rittenhouse is now facing homicide charges.

Rittenhouse's comments to the Daily Caller in August appears to suggest a self-assigned role of protecting people. That's illegal in Wisconsin, where the state constitution forbids armed civilians from organizing and arming themselves to assume the role of law enforcement.

In fact, all 50 states prohibit such private, military-like activities.

Still, militant groups from far-right fringes have proliferated, energized by the election of President Donald Trump, experts say.

As Trumpcampaigned, he has repeatedly claimed, without evidence, that a massive voter fraud conspiracy is underway and has called on his supporters "to go into the polls and watch very carefully." Some groups have promised to do so, raising concerns among local election and law enforcement officials of voter intimidation.

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The Southern Poverty Law Center reports that in the U.S., there were about 180 "militias" – defined by the law center as anti-government groups that engage in military-style training – active in 2019.

According to the FBI: "Many militia extremists view themselves as protecting the U.S. Constitution, other U.S. laws, or their own individual liberties. They believe that the Constitution grants citizens the power to take back the federal government by force of violence if they feel it's necessary."

That belief, legal experts say, is wrong. Here's what you need to know about laws that prohibit paramilitary groups and activities, and why they've continued to persist.

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What do the laws say?

The constitutions of 48 states require the military to be under the authority of the government. This means private citizens do not have the authority to organize in a military-style fashion. Twenty-nine states also don't allow private military-like activities such as parading or conducting drills in public using firearms.

"When self-designated private militia organizations attend public rallies purportedly to keep the peace or protect the rights of protesters or counterprotesters, they likely fall within this type of prohibition, particularly if bearing arms and wearing military-style uniforms," according to Georgetown University's Institution for Constitutional Advocacy and Protection, or ICAP.

In 25 states, unauthorized military activities are considered a crime. In Colorado, for example, instructing people how to use or make firearms or explosive devices with the intent of causing civil disorder is a class 5 felony.

In 17 states, laws prohibit self-appointed peacekeepers from dressing up in uniforms and assuming the role of law enforcement.

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What are the common misinterpretations of the laws?

To legally justify their existence, these groups have seized on the Second Amendment, which says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

But the phrase "well regulated Militia" in this case refers to one that's sanctioned and regulated by the government, like the National Guard, and not to privately organized paramilitary groups, said Mary McCord, acting assistant attorney general for the Justice Department's National Security Division and legal director of Georgetown University's ICAP.

Still, this phrase has been misinterpreted, particularly in states that don't explicitly ban or criminalize paramilitary activities, said Amy Cooter, a Vanderbilt University sociology professor who has studied far-right militant groups.

A lot of paramilitary groups see themselves as "supplementary to the military," Cooter said. "Most of them see themselves as doing exactly what's required of them. … From the militia's perspective, as long as they have some sort of overarching training, some structure, that's sufficient to maintain that legal structure."

The Supreme Court also has been clear that the Second Amendment does not protect paramilitary activities, McCord said.

In 2008, the Supreme Court ruled that the Second Amendment protects an individual's right to possess a firearm for self-defense. But the court's opinion, authored by the late conservative Associate Justice Antonin Scalia, also said the Second Amendment does not guarantee "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

Scalia also reiterated a Supreme Court ruling from more than a century earlier: That the Second Amendment does not prevent states from banning paramilitary organizations.

Why aren't these groups stopped?

For the most part, it's because local and state governments have not enforced the laws, experts say.

"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," said Brian Levin, director of the Center for the Study of Hate & Extremism at California State University-San Bernardino. "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."

In many places, sheriffs reach out to paramilitary groups for help with law enforcement activities, such as search and rescue efforts, giving them a de facto legal status, Cooter said.

"The way these folks sometimes ensconced themselves, they do so in a manner where they're trying to cultivate positive relations with law enforcement," Levin said.

In some places, local law enforcement may simply choose not to go after heavily armed and well-trained groups, said Daryl Johnson, a former Department of Homeland Security analyst who studied right-wing extremists.

"For the most part, most militia groups are defensive in nature. They just want to protect their families and communities," so local governments have simply allowed them to exist, he said. But Johnson said other groups have proved to be more brazen and more offensive in their actions, particularly in the midst of COVID-19 restrictions that many saw as an infringement on their freedoms.

Just last month, the FBI charged members of the so-called Wolverine Watchmen group for allegedly plotting to kidnap Michigan Gov. Gretchen Whitmer as part of a broader mission to instigate a civil war. Several of the suspects attended protests against wearing masks and other measures imposed to prevent the spread of COVID-19.

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In Lane County, Oregon, armed groups reportedly turned away voters who were trying to drop off their ballots. In a letter Monday to local and state officials in response to the incident, McCord reiterated that armed militants have no authority to patrol ballot drop boxes.

Voters who encounter or witness intimidation are encouraged to call the Election Protection Hotline at 866-OUR-VOTE (866-687-8683), or the U.S. Department of Justice voting rights hotline at 800-253-3931, or, if threatened by violence, 911.

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What can or should police do on Election Day?

It's tricky.

Because a lot of states do allow people to open carry in public, police have to be sensitive to those rights, Cooter said. Localities also have different laws on what is and isn't allowed at polling sites, and as long as groups are following local rules, there isn't much police can do.

"I've seen evidence that the more law enforcement can basically leave them alone, the less reactionary they are," Cooter said. "I think as long as they're following the law, it tends to be true that provocation escalates things."

Police will also have to be mindful of people's right to free speech.

"Definitely, if there's any type of shouting or even pointing a weapon, that would be crossing the line," Johnson said. "Holding a weapon and shouting derogatory comments at people, … standing in the way of people going into polling places or trying to prevent them from walking in," would be crossing the line.

Federal, state and local law enforcement officials braced for possible clashes at polling places.

In a warning in September, the chief of New Jersey's Homeland Security and Preparedness office called attention to a gathering storm of worries directly tied to the election.

"Numerous threats from domestic extremists and foreign adversaries have emerged due to the COVID-19 pandemic, anti-government sentiment, nationwide civil unrest, and various forms of disinformation," Jared Maples wrote in a state threat assessment. "These threats will begin to converge with the presidential election in November in a manner not previously experienced by our nation."

This article originally appeared on USA TODAY: All states prohibit paramilitary 'militia extremists.' But ...