Regardless of what President Donald Trump says, the violent, far-right, neo-fascist, and male-only group known as the Proud Boys should not “stand down and stand-by.” In fact, no group who considers or arms themselves as militias should “stand by” to enforce laws as they see fit.
If they do, they don’t understand West Virginia law. Here’s the skinny.
Last Thursday, 13 men, seven associated with an anti-government militia group, were arrested on charges of conspiring to kidnap the Michigan governor, attack the state legislature and threaten law enforcement, apparently stemming from the governor’s actions associated with combating COVID-19. Gov. Gretchen Whitmer, a Democrat, accused Trump of fomenting political extremism, citing his comments during last week’s presidential debate in which Trump declined to condemn white supremacists. Trump lashed back at Whitmer on Twitter, saying the governor “has done a terrible job” and wrote that she was being ungrateful to his administration.
Meanwhile, the president has increasingly focused attention on voting, declaring the only way he can lose is if the election is rigged, refused to commit to a peaceful transfer of power and encouraged followers to be poll watchers.
Obviously, plotting to capture and try a state’s governor seems unlawful to me, but it does beg the question about private militias and poll watchers in West Virginia. For starters, poll watchers are not permitted in polling places in West Virginia. It is the responsibility of election officials to challenge voters.
As for militias, Georgetown Law Center’s Institute for Constitutional Advocacy and Protection put together fact sheets on them, noting that every state bars unauthorized private militia groups, and provided instructions should a group of armed individuals be near a polling place or voter registration drive. They explain that federal and state laws generally use the term “militia” to refer to all able-bodied residents between certain ages who may be called forth to defend the United States or an individual state. When not called forth, they are sometimes referred to as the “unorganized militia,” or groups who consider themselves part of the able-bodied residents. Here is the kicker: A private militia that attempts to activate itself for duty outside of the authority of the state or federal government is illegal.
Georgetown goes on to state: “Groups of armed individuals that engage in paramilitary activity or law enforcement functions without being called forth by a governor or the federal government and without reporting to any government authority are acting as unauthorized private militias.”
These groups often purport to have authority to engage in military and law enforcement activities, such as protecting property and engaging in crowd control. They might engage in unauthorized militia activity even if they, individually, don’t consider themselves to be “members” of a paramilitary organization.
Doesn’t the Second Amendment protect private militias? No. The Supreme Court decided in 1886, as well as in 2008, that the Second Amendment does not prevent the prohibition of private paramilitary organizations.
Are these groups legal in West Virginia? No. In fact, all 50 states prohibit private, unauthorized militias. Our West Virginia Constitution forbids private military units from operating outside state authority, providing that “[t]he military shall be subordinate to the civil power.” Even in law, West Virginia makes it illegal for groups of people to organize as private militias without permission from the state. It is a misdemeanor “for any body of individuals other than the regularly organized National Guard or the troops of the United States, to associate themselves together as a military company or organization in this state.”
If you see an armed group near a polling place or voter registration drive, notify your most convenient police authority or call Election Protection at 866-OUR-VOTE (866-687-8683) to report the activity.