restricted access 90 The Rise of Private Militia: A First and Second Amendment Analysis of the Right to Organize and the Right to Train
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90 The Rise of Private Militia: A First and Second Amendment Analysis of the Right to Organize and the Right to Train JOELLE E. POLESKY This chapter is written in honor of my grandfather, whose perseverance in life and dedication to his family are an enduring inspiration. Copious news coverage of Ruby Ridge,l Waco,2 and the Oklahoma City bombing3 has prompted a growing concern with the proliferation of paramilitary organizations and paramilitary activity.4 The public's anxiety is fueled by the belief that private militia pose a threat to society. Private militia are commonly misunderstood and mischaracterized as organizations comprised solely of right-wing militants adhering to Aryan, racist ideology. Although many militia members subscribe to these views, allegiance to the far right is not a prerequisite to membership in a private militia.s Instead, ardent belief in the need to protect individual rights from encroachment by the federal government is the predominant attribute of these organizations. History of the Militia The first militias organized to prevent the rise of tyrannical government. Over time, however, the significance of the militia to free society diminished considerably, primarily because of the "emerging ... belief that the interests of the people ... could be protected effectively by the establishment of democratic governments, offering legal guarantees of individual rights."6 Militia members today believe that modern government has failed to achieve or sustain this democratic ideal. The fundamental purpose of current paramilitary organizations , therefore, corresponds with the historical justification for maintaining a militiamilitia members consider their existence necessary to protect society from the federal government'? But what was once a viable means of supplying protection against the federal government, however, may no longer be a realistic alternative. The militia may have been an efficient means of protection when the country was small and when only a select portion of society contributed to the democratic process. Modern society simply does not 144 U. PA. L. REV. 1593 (1996). Copyright © 1996 The University of Pennsylvania Law Review. Reprinted by permission. Copyrighted Material 548 Joe/Ie E. Polesky foster an environment conducive to the existence of private, armed groups protecting the citizenry. The militia grew out of an old English custom that was adopted by the colonies, altered to conform to the American experience, and eventually incorporated into the Second Amendment. The citizens' militia developed in England to serve as an effective means of national defense and to counterbalance the strength of a professional army. The English also perceived the militia as a "critical element in their development of'government under law'''B and as a means of tempering the strength of the monarchy. Although the view of the militia as a necessary force to balance the strength of the army gradually changed, such an organization continued to be a politically essential method of regulating the government . During the Enlightenment, the perception that maintaining a citizens' militia was an individual duty was transformed into a belief that militia membership constituted an individual right. Colonial acceptance of a militia was compelled by the same concern that led to its existence in England: fear of a standing army. The colonists diverged somewhat from English custom, however, by expanding the right to bear arms to encompass both militia members and individual citizens. In time, as individual constitutions and bills of rights were formulated , a schism over this issue developed among the colonies themselves. The ensuing debate centered on whether to provide solely for a citizens' militia or whether also to provide for an individual right to bear arms. Shortly after American independence, the need for a militia was reevaluated. The new constitutional system of checks and balances, and the provisions for individual rights, prompted Americans to question if a militia was a necessary restraint on a potentially tyrannical government . The significance of the militia waned, and its function changed considerably. In 1792, Congress enacted the first legislation regarding the militia, emphasizing the structured nature that the militia assumed.9 The next two centuries witnessed a drastic transformation of the militia's role and general characteristics. Today, the National Guard and similar highly structured and managed military organizations are commonly considered the "militia." Modern paramilitary organizations seek to reinvigorate the historical role and function of the militia. In addition to the legal obstacles they face, their endeavor to reinstitute a traditional militia is complicated by the sheer expanse of the United States and the diverse and disorganized nature of today's militia movement. An Inside Look at Today's Militia...


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