REGULATING ARMED PRIVATE MILITIA GATHERINGS: A CONSTITUTIONAL STATE-LEVEL PROPOSAL TO PROMOTE PUBLIC SAFETY IN A POST-HELLER WORLD.

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Author: Sean Tenaglia
Date: Nov. 2021
From: William and Mary Law Review(Vol. 63, Issue 2)
Publisher: College of William and Mary, Marshall Wythe School of Law
Document Type: Article
Length: 13,091 words
Lexile Measure: 2350L

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TABLE OF CONTENTS INTRODUCTION 681 I. DEFINING "PRIVATE MILITIAS" AND TRACING THEIR ORIGINS 685 A. What Is a "Private Militia?": Choosing a Workable Definition 685 B. How Did We Get Here?: The Origins of Modern Private Militias 687 II. ROOTING THE SECOND AMENDMENT IN HISTORY AND THEORY 690 A. District of Columbia v. Heller: Defining the Individual Right to Keep and Bear Arms 690 B. "A Vast Terra Incognita": The Scope of the Second Amendment After Heller 693 C. Theories of the Second Amendment: How Private Militias Argue for the Right to be Armed in Public 697 1. Self-Defense 697 2. Safety 698 3. Anti-Tyranny 699 4. Autonomy 700 5. Collective Defense Outside of the Home 700 III. STATE ANTI-MILITIA LAWS: THE CATEGORIES AND THEIR CONSTITUTIONALITY 701 A. Categories of Existing State Anti-Militia Provisions 702 1. Constitutional Subordination Clauses 702 2. False Assumption Statutes 703 3. Anti-Paramilitary Activity Laws 703 4. Statutes Prohibiting Armed Gatherings 703 B. The Constitutionality of State Regulation of Private Militias 704 1. Second Amendment Constitutionality of Anti-Militia Laws 704 2. First Amendment Constitutionality of Anti-Militia Laws 706 IV. A PROPOSAL FOR REGULATING ARMED PRIVATE MILITIAS IN PUBLIC 708 A. Regulating Private Militias: Applying a Universal State Standard to Ban Armed Gatherings in Public 709 B. Practical Challenges to Regulating Private Militias 712 C Rebutting Counterarguments to the Proposed Standard 714 CONCLUSION 716

INTRODUCTION

"Yesterday, in my view, was one of the darkest days in the history of our nation."' President Joseph R. Biden spoke these words following the January 6, 2021 riots at the U.S. Capitol Building that left five people, including a police officer, dead. (2) The mob that stormed the Capitol sought to prevent Congress from certifying then J?resident-elect Biden's Electoral College victory. (3) In the weeks following the riot, investigators began arresting rioters associated with extremist right-wing militia groups, such as the Oath Keepers and Three Percenters. (4) While January 6, 2021, can accurately be labeled a dark day in American history, the events that unfolded did not necessarily surprise those familiar with the activity of extremist private militia groups in the preceding months.

On October 8, 2020, federal agents arrested seven members of the Wolverine Watchmen militia who plotted to kidnap Michigan Governor Gretchen Whitmer. (5) One week earlier, in front of a national audience, then-President Donald Trump told the Proud Boys, a far-right extremist group, to "stand back and stand by." (6) In August 2020, seventeen-year-old Kyle Rittenhouse killed two protestors in Kenosha, Wisconsin, where armed militia groups sought to assume security functions during protests for racial justice. (7) Although these incidents differ, they all highlight a troubling reality: the increased presence of armed private militia groups in public spaces. (8)

While elements of private militias have existed since America's colonial period, the modern militia movement traces its roots to the 1990s. (9) The movement, which is generally "anti-government and radically pro-Second Amendment," quieted in the early 2000s, but has undergone a resurgence in recent years. (10) Groups vary greatly...

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Gale Document Number: GALE|A689725296