States Are Cracking Down On Militias — Except For Idaho

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In a bucolic corner of southwestern Vermont, locals have been disturbed for years by a neighbor’s weekend hobby: running a paramilitary training camp in the woods near West Pawlet. As complaints about the facility’s activities rose, many wondered why law enforcement wasn’t cracking down on the gun fights, explosions and allegations of participants harassing locals. Despite multiple complaints to Vermont State Police, none of the activities rose to the level of a criminal charge. Though the Vermont Constitution forbids private military units, the language is old and broad, making it difficult to act.

Now, Vermont is one of at least three states seeking to strengthen its laws against paramilitary activity. At the same time, Idaho — a state with a long history of anti-government militia activity — is seeking to overturn its sole, unenforced law banning militias. The pending legislation represents two very different responses to what federal authorities say is a growing threat of domestic terrorism: Incidents of domestic terrorism, which includes violent militia, increased 357 percent from 2013 to 2021, according to a February report from the Government Accountability Office. The new laws could shape where militias operate, and what they feel emboldened to do, in the years to come. 

Vermont’s bill, which has already passed the state Senate, specifically bans paramilitary training camps — like that in West Pawlet — and includes a provision for civil enforcement, meaning a local prosecutor would be able to seek a court injunction to order a group to stop this activity while investigations or charges are pending. This is an important provision because it provides additional avenues for enforcement, according to Mary McCord, the executive director of Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection. McCord said that while all 50 states have some form of law prohibiting private militias, they’re not always enforced or clearly written.

“What’s on the books right now in terms of state laws are state constitutional provisions and criminal laws,” McCord said. “[These bills] fill those gaps, make it very clear what it applies to and provide those tools that can allow for more proactive response to the threat.”

Two other anti-paramilitary bills, in Oregon and New Mexico, were based on draft legislation written by McCord and her colleague at ICAP. The bills would prohibit paramilitary groups from training or from patrolling in public — effectively banning militias from showing up at protests or other public gatherings to “protect” property or statues, a trend that’s become more common in recent years, according to McCord. 

Each of these states has faced unique challenges with militias: Vermont has its militia training center, as well as organized militia operating in the state, New Mexico has seen militias acting as self-appointed border patrols, and Oregon — much like Idaho — has long been a favored locale for anti-government militias and has even seen in-fighting between these groups. Along with these state-specific catalysts, McCord said the increased appetite to crack down on militias is in part because these groups are interacting more with regular people.

“In the ‘90s, and even in 20-teens, we saw them stand up against the federal government — Ruby Ridge, Waco, the wildlife refuge in Bunkerville, Nevada,” McCord said. “Since then, we’ve seen much more engagement with the public more generally.” She pointed to the Unite the Right rally, takeovers of and intrusions into statehouses and, of course, the Jan. 6, 2021, attack on the U.S. Capitol as examples of how militias have been more front and center in recent years, presenting a threat to public safety. It’s part of the reason she believes federal legislation should provide additional routes for law enforcement and the public to push back against these groups. 

But Idaho is taking a different tack. There, the state Senate has passed a bill that would repeal the state’s existing — though currently unenforced — law that bans private militias, keeping only the part that prohibits cities and towns from harboring militias. Some supporters of the bill argued the existing law was unconstitutional (something McCord and ICAP disputed in a submitted letter), while others said it was old and ineffective anyway. But McCord said even though the law is not really enforced in Idaho, repealing it could send a message that existing laws like this aren’t constitutional or that participation in a private militia is legal and protected. 

“It’s the kind of thing which could be used by private militia members to try to promote, recruit, monetize and try to create a narrative that what they’re doing is lawful,” McCord said. “That’s where I see the danger because it can be used for them to try to expand.”

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