Jamie Raskin, Maryland’s 8th District representative and perhaps the smartest guy in the House, spent more than 25 years teaching the Constitution to law students. So it’s no surprise that he cited specific clauses of that extraordinary document in response to my question: Can Congress put a stop to private paramilitary groups such as the Proud Boys and Oath Keepers?
It was not a random, stump-the-prof question.
Raskin has filed legislation to prohibit certain activities by self-proclaimed militias like those that showed up with guns at state capitols during the Trump presidency. Some of them also took part in the violent insurrection of Jan. 6, 2021, in an attempt to stop Congress from certifying President Joe Biden’s election.
I assumed Raskin had already determined his proposal’s constitutionality, but asked anyway: Isn’t a fellow’s participation in a paramilitary group merely a form of expression, a kind of fascist fashion statement?
“Go to Article 1, Section 8, clause 16,” Raskin said. “There are a number of mentions of the militia … When you add them all up, they make it very clear that the Constitution guarantees a well-organized militia, and the Supreme Court has been clear that a well-organized militia is a militia organized by the government. It’s not the Proud Boys. It’s not the Oath Keepers. It’s not any group of people who get together and say they think the government is behaving in an unfair way.”
And the Constitution spells out clear purposes of militias, none of them in line with the paranoid, anti-government groups that have turned out in camo gear to protest everything from pandemic restrictions to gun regulation.
In fact, Section 8, clause 15 gives Congress the power to summon militias, or National Guard units, “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
So it’s specific: Militias are established by Congress, not by angry guys who dress like members of a police SWAT team to intimidate state legislators or members of Congress.
“Congress’s power to organize, arm and discipline the militia includes the power to prevent counterfeit militias,” says Raskin. “So it’s far from what the right wing says it is — the citizens’ opportunity to overthrow a tyrannical government.”
Much of that rhetoric flows from a twisted view of the right to bear arms. The National Rifle Association stoked a lot of the gun-grab fears that drove men to join paramilitary groups, particularly during the tenure of the country’s first Black president. More groups formed in the years since the Obama administration, and they became more visible during Trump time.
“I’m having this fight on a daily basis with my [Republican] colleagues in Congress,” says Raskin. “[They] say that the meaning of the Second Amendment is that the people have the right to overthrow the government and that’s why the people have to have the right to bear arms.”
He cited the lowest-hanging fruit on that tree: Colorado Rep. Lauren Boebert, who famously claimed that “the Second Amendment has nothing to do with hunting unless you’re talking about hunting tyrants.”
Raskin gave a speech about this last May at the Library of Congress.
“It’s just ridiculous,” he says, “because there are multiple provisions in the Constitution which make it clear that the government has the power and the obligation to suppress insurrections.”
Raskin’s bill does not prohibit mere association with paramilitary groups, but it holds liable, through a combination of civil and criminal enforcement, anyone who, while styling as a militia member, impersonates police or intimidates government officials, breaks up a government proceeding or, say, storms the Capitol of the United States. (Several members of paramilitary groups have been sentenced to federal prison for their actions on Jan. 6, and some received the stiffest sentences of the more than 1,200 defendants prosecuted by federal authorities.)
In the aftermath of the white supremacist march and violent skirmishes in Charlottesville in 2017, the Georgetown University Law Center looked at every state’s Constitution or criminal code and found provisions against militias in each. Maryland’s Constitution states that, “in all cases, and at all times, the military ought to be under strict subordination to, and control of, the civil power,” meaning the state government. That is the common language in 48 constitutions, the Georgetown study found. Its authors summed it up the issue this way: “When private armies organize into military-style units that are neither responsible to, nor under the command of, the civil power of the state, they violate this constitutional command to the detriment of civil order.”
So, another question for Raskin: If all states have provisions against paramilitary groups, why the need for a federal law?
“It gives the states backup from federal authority to stop private insurrectionary activity by self-proclaimed militias,” he says, noting that state police in Michigan could have used federal help when armed protestors invaded the capitol in Lansing in 2020.
I hope he prevails, but I’m sure it won’t be without a fight from right-wing extremists who deny Jan. 6 was an insurrection and describe those imprisoned for their involvement in the Capitol riot as “political prisoners” or “hostages.”
Here Raskin invoked Abraham Lincoln: “He said that the Constitution did not contain the right to violently overthrow the government. He said that insurrection was the violation of the very first right of people in a representative democracy, their right to choose their own leaders.” And to choose them peaceably.
