Forming militias to defend the Constitution may not only be unlawful, but downright treasonous according to one historian and legal analyst.
Patrick Charles, the Senior Historian for U.S. Special Operations Command, told CBS News that the civilian-led militias in Virginia that have emerged in direct response to Democratic efforts to infringe on gun rights over the past several years may be betraying the very country they claim to be protecting.
“I would say it could be treason,” explained Charles, who appeared in the CBSN Originals, “Reverb: Gun, Fight” (see embedded videos above and below).
“Are they just acting on behalf of the First Amendment, ‘I’m declaring myself a militia’? Or are they performing state-sanctioned militia functions? If they’re doing the latter, that is arguably treason,” he added.
Mary McCord, the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University, did not go so far as to use the word treason but indicated that there is very little doubt that civilian-formed militias are unlawful.
“There’s a gray area in the Second Amendment, and there’s a lot of unanswered questions, but this is not one of them,” said McCord. “Under the U.S. Constitution, it’s Congress that has the ability to call forth and regulate a militia through the Militia Act that established the National Guard.”
McCord went on to add that governors have that power as well, but was careful to note, “No one else has that authority.”
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Neither McCord nor Charles’ analysis would matter much to Kurt Feigel, a proud gun owner and militia organizer.
When talking to CBS News for the two-part exposé, he was blunt about his stance, “We have the right to assemble peacefully, and we have a right to defend our communities. Not as vigilantes, but we aren’t going to let people roll into our town and burn it down like in Portland and Seattle.”
In Feigel’s defense, Bloomberg.com recently published a story last month mostly backing his perspective. Erik Larson, the author, wrote:
There’s nothing inherently illegal about a militia or any other group of like-minded people, since the First Amendment guarantees the “right of the people peaceably to assemble,” and the Second Amendment generally protects the right to possess a firearm. But gun restrictions vary by state, most states have laws prohibiting paramilitary training for the purpose of carrying out civil disorder, and self-deploying a militia to carry out law enforcement duties is illegal everywhere. Enforcement can be sketchy, as when armed men, unchallenged by police, positioned themselves in some U.S. cities this year, ostensibly to protect property during Black Lives Matter protests.
In other words, peaceful 2A protests in opposition to new gun laws are legal. Coordinated armed resistance to violent agitators, looters and arsonists may also be permissible depending on the circumstances.
While the latter might violate the letter of the law, one can argue most prosecutors are not going to charge law-abiding civilians for defending their homes or businesses from unruly mobs. (Most*** because we all saw what happened to the McCloskeys.)
Makes sense. But, of course, not everyone agrees. Mary McCord told CBS News, “They [militias] have no authority to deploy publicly, while armed, organizing themselves together and asserting authority over the public to protect property [or] statues, that we saw throughout the summer during the racial justice protests.”
McCord’s last comment raises questions about the politics of militias. It seems, depending on which side of the aisle one sits on, the characterization of armed demonstrators radically changes based on their political ideologies.
For example, BLM and Antifa are militias of a sort. Violent militias to be exact. Armed agitators within their ranks are responsible for looting, burning, and destroying local businesses in cities and towns around the country. Armed killers within their ranks are also responsible for the murder of American citizens, including Retired Police Capt. David Dorn.
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But for whatever reason when it comes time to condemn their actions and call them out for who they are, domestic terrorists, many on the Left are not just mum but they go to great lengths to sweep these crimes under the banner of “racial justice protests” or “mostly peaceful” demonstrations.
Meanwhile, those who actually assemble — PEACEFULLY — under the banner of gun rights, like the hundreds who did at the Michigan Capitol in Sept of this year, are characterized not as, say, concerned patriots but as “gun extremists with assault-style rifles.” The suggestion is that gun-rights advocates are the true threat to America, even though every 2A rally in recent memory has gone off without a hitch. No violence. NONE.
With all that said, where do you come out on the militia question? Do you believe civilian-led militias are unlawful? Do you believe when they act in a coordinated manner to defend their neighborhoods they are committing treason?