Kyle Rittenhouse and his militia defense ignores that private paramilitaries are illegal

A militia operates under the authority of the president or a governor; if it doesn’t, it’s just an armed mob.
Members of the Boogaloo Movement attend a demonstration against coronavirus lockdown measures at the New Hampshire State House in Concord on April 18.
Members of the Boogaloo Movement attend a demonstration against coronavirus lockdown measures at the New Hampshire State House in Concord on April 18.Michael Dwyer / AP file
Get the Think newsletter.
SUBSCRIBE
By Erik Schechter, former military journalist

The legal team for 17-year-old Kyle Rittenhouse has called him a member of the “militia” and a “minuteman,” referring to the patriot forces that fought the British at Lexington and Concord in 1775. This terminology, though archaic, is fairly common in gun circles, with more and more radicals acting as if the U.S. Constitution deputized them to form paramilitaries.

In the case of Rittenhouse, before he allegedly shot three protesters in Kenosha, Wisconsin, with an AR-15-type rifle on the last Tuesday of August, he was reportedly patrolling the city streets with members of the radical Boogaloo Bois militia.

We need to step back from this militia nonsense. These private paramilitaries are illegal and should be treated as such by the authorities.

And they were not the only ones brandishing long guns and strutting about in defiance of a curfew amid the roiling protests following the police shooting of Jacob Blake. There was also the Kenosha Guard, a brand-new creation by a local private investigator who claimed he didn’t “need the government’s permission” to command a militia.

This isn’t true. Yet, this lack of understanding of what a militia is under U.S. law and how it’s supposed to operate is being exploited by private armed groups. It’s critical that our local officials and law enforcement understand this because these groups court tragedy.

Creating a militia is not the same as exercising your Second Amendment right to, say, arm yourself with a gun and protect your shop from looters. A militia operates under the authority of the president or a governor; if it doesn’t, it’s just an armed mob. And while it’s likely that, in their own minds, these private paramilitary members think they are keeping the peace, what they are really doing is infecting protests with a greater potential for violence.

The idea of ordinary citizens being called forth to defend the community in times of emergency has deep roots in Anglo-Saxon and republican tradition, which emphasized political engagement, civic virtue and the ideal of the financially independent landowner. Colonial-era republicans saw the militia as the healthy alternative to a professional standing army (or, as we lovingly call them today, “the troops”), which was then associated with tyranny.

Favoring a stronger national government, the Federalists, in contrast, were not keen on the militia, given its middling performance during the Revolution, and wanted an army. George Washington himself referred to the militia as “a broken staff.” But the concept survived in the Constitution’s militia clauses and the Second Amendment to meet the republican objections of Anti-Federalists like Patrick Henry, famous for his rallying cry, “Give me liberty, or give me death!”

The Green Mountain Boys of Vermont, a paramilitary group from western Vermont, wearing mismatched uniforms, are shown sailing on Lake Champlain during the Revolution, 1775.AP Photo

To further appease the Anti-Federalists, the Constitution divided control over the militia. Congress oversaw the arming, organizing and disciplining of the militia, while the states did the training and officering. The governors were normally in control of their own state militias, but the president could call them up to repel invasion, enforce the law and put down rebellions.

In all, it was a nice idea. But, once again, the militia largely disappointed during the War of 1812 and, in the following decades, enthusiasm for a mandatory and universal force waned, with citizens showing up to militia muster with broomsticks and corn stalks instead of rifles. Only the Southern states really kept up with the militia — because they needed it to enforce slavery.

In 1903, we officially divided the militia into an “organized militia,” i.e., the National Guard (and, later, state defense forces), and the “unorganized militia.” This other militia includes every able-bodied male age 17 to 45 and serves as a reserve body that, at least theoretically, could be called up for service by the president. (States have their own rules for militia membership; Illinois, for instance, now counts women in its state militia.)

So, does being part of an unorganized militia give you and your buddies the right to sling AR-15s across your chest, don cammies and patrol the streets of Kenosha and other cities as the self-declared Super-Patriot Constitutional Militia for Liberty and Tricorn Hats? No, because a militia is not an armed gang; it operates under orders from a legal authority that a self-governed group does not.

David Kopel, research director of the Independence Institute, does note that in the early and mid-1800s, there were privately organized militias: They were “like the Elks Club.” But they had to be organized like the regular militia, and even when they served as an intact unit, they did so under federal control. They also had to have state charters.

Indeed, Amy Swearer, a legal fellow at The Heritage Foundation’s Meese Center for Legal and Judicial Studies, notes that “there isn’t an affirmative right” to form one’s own militia. She cites Presser v. Illinois, in which the Supreme Court ruled in 1886 that a German immigrant didn’t have a Second Amendment right to march his socialist militia in Chicago without authorization from the state.

There are also state laws and constitutions that need to be obeyed.

“The laws of all 50 states prohibit, in one way or another, private militias that are not answerable to civilian governmental authority,” said Mary McCord, the legal director of the Institute for Constitutional Advocacy and Protection, at Georgetown University.

These prohibitions can come as constitutional provisions asserting civilian control over military forces or criminal statutes that ban private citizens from associating as a military unit or drilling in public. Indeed, following the 2017 “Unite the Right” march in Charlottesville, McCord relied on Virginia law to successfully sue right-wing and left-wing militias on behalf of the city and local businesses.

As for those private paramilitaries that took to the streets in Wisconsin, McCord points to Article I, Section 20 of the state constitution, which succinctly states, “The military shall be in strict subordination to, and governed by, the civil power.”

Of course, it’s easy to identify illegal private paramilitaries that move in formation and wear patches with emblems on their military-type uniforms. And it’s just as easy to know when it’s mom and pop arming themselves to protect their family business from arsonists, which is allowed under the Second Amendment. But what about more ad hoc groupings of armed strangers? When is a private militia a private militia?

There will always be gray areas. But that doesn’t mean the authorities shouldn’t act more forcefully to rein in groups that are clearly breaking the law, like the Boogaloo Bois and the Kenosha Guard.

After all, the militarization of political protests is profoundly dangerous. As is, we are a divided society. A paper published in January 2019 found that nearly 20 percent of Republicans and Democrats believed that many on the other side “lack the traits to be considered fully human — they behave like animals.” So, when armed factions insert themselves into an already tense environment, the chances for bloodshed rise exponentially.

We saw this just now in Kenosha.

And we nearly saw it a hundred times over in Louisville, Kentucky, on July 25. That’s when more than 300 members of an African American paramilitary, the NFAC ("Not F***ing Around Coalition”), stood only yards away from a heavily armed, far-right Three-Percenter outfit during a protest over the police killing of Breonna Taylor in March.

Enthusiasm for a mandatory and universal force waned, with citizens showing up to militia muster with broomsticks and corn stalks instead of rifles.

Passions were running high that afternoon. People were shouting slogans. Then a shot rang out.

One NFAC militiaman had collapsed from the heat, the group’s leader later said, and his shotgun discharged, wounding three. Thankfully, the accident didn’t ignite a running gun battle between two groups claiming to exercise their Second Amendment rights. Next time, we might not be so lucky.

We need to step back from this militia nonsense. These private paramilitaries are illegal and should be treated as such by the authorities. Perhaps, in the past, it was thought that clamping down on these “Red Dawn”cosplayers wasn’t worth the political headache. But while we do nothing, they continue to embed themselves in political protests, and one day soon, we’ll find that it’s just too perilous to exercise our First Amendment rights in the public square.