The legal team for 17-year-old Kyle Rittenhouse has called him a member of the “militia” and a “minuteman,” referring to the patriot forces that fought the British at Lexington and Concord in 1775. This terminology, though archaic, is fairly common in gun circles, with more and more radicals acting as if the U.S. Constitution deputized them to form paramilitaries.
In the case of Rittenhouse, before he allegedly shot three protesters in Kenosha, Wisconsin, with an AR-15-type rifle on the last Tuesday of August, he was reportedly patrolling the city streets with members of the radical Boogaloo Bois militia.
And they were not the only ones brandishing long guns and strutting about in defiance of a curfew amid the roiling protests following the police shooting of Jacob Blake. There was also the Kenosha Guard, a brand-new creation by a local private investigator who claimed he didn’t “need the government’s permission” to command a militia.
This isn’t true. Yet, this lack of understanding of what a militia is under U.S. law and how it’s supposed to operate is being exploited by private armed groups. It’s critical that our local officials and law enforcement understand this because these groups court tragedy.
So, does being part of an unorganized militia give you and your buddies the right to sling AR-15s across your chest, don cammies and patrol the streets of Kenosha and other cities as the self-declared Super-Patriot Constitutional Militia for Liberty and Tricorn Hats? No, because a militia is not an armed gang; it operates under orders from a legal authority that a self-governed group does not.
“The laws of all 50 states prohibit, in one way or another, private militias that are not answerable to civilian governmental authority,” said Mary McCord, the legal director of the Institute for Constitutional Advocacy and Protection, at Georgetown University.
These prohibitions can come as constitutional provisions asserting civilian control over military forces or criminal statutes that ban private citizens from associating as a military unit or drilling in public. Indeed, following the 2017 “Unite the Right” march in Charlottesville, McCord relied on Virginia law to successfully sue right-wing and left-wing militias on behalf of the city and local businesses.
As for those private paramilitaries that took to the streets in Wisconsin, McCord points to Article I, Section 20 of the state constitution, which succinctly states, “The military shall be in strict subordination to, and governed by, the civil power.”