What is and is not a militia
Private paramilitary bands are not militias
What is and is not a militia
In 2018, I started working on the project described in "Service and the Second Amendment (2023)" — the S2A project for short. The core idea was that gun ownership should be limited to those who have served to protect the nation or their communities in some relevant way (armed forces, law enforcement, emergency response, intelligence, corrections, or diplomacy, including reserves, auxiliaries, and unpaid volunteer services). I hoped this might be a way to reduce gun violence in the US while increasing service participation and inculcating a deeper understanding of citizenship.
As I delved into the vast literature on gun issues, though, I became pessimistic about the effectiveness of my proposal to curb gun violence. I began to suspect that restricting gun buyers would not be enough without also doing something about the activities of gun sellers and gun makers. I also saw that those who have served in the specified ways are not necessarily less likely to misuse guns. So I put the S2A project on the back burner.
Events and developments after 2020 led me to take another look at the S2A project, not so much for the gun violence angle, as for the other motivations related to service and citizenship. In particular, the growth of so-called "militias" and their involvement in threats to our republican institutions is deeply troubling.
The media should stop calling these groups militias. It would be more accurate to call them private paramilitary bands. The writings of the Framers of our Constitution make it clear that when they talk about a "well-regulated militia" in the Second Amendment, they are talking about forces under the control of state governments.
For example, here is Alexander Hamilton, Federalist Papers #29.
And on the Anti-Federalist side, here is Richard Henry Lee, Federal Farmer #18
Both of these documents deal with the relationship between the national and state governments with respect to the military, and were written at a time when people were very concerned about the possible dangers of a permanent national standing army. Both construe "militia" as forces organized and trained under the authority of the state governments, under the command of officers appointed by the state governments, not self-appointed bands of private citizens.
(According to 10 U.S. Code § 246, all male citizens between the ages of 17 and 45 who are not in the National Guard or Naval Militia are part of the "unorganized militia". But joining a private paramilitary band doesn't affect that classification.)
The groups associated with the so-called "militia movement" of recent decades are not the genuine “well-regulated militia” of the 2nd Amendment. At best, they are hobbyists and cosplayers. At worst, they are domestic terrorists. So far, this movement has given us Timothy McVeigh (the Oklahoma City bomber), the armed occupation of Malheur National Wildlife Refuge, and the plot to kidnap Governor Gretchen Whitmer of Michigan, and involvement of the Oath Keepers and Proud Boys groups in the insurrection of 6 January 2021, all of which have resulted in criminal convictions. "By their fruits ye shall know them."
Then there are the Boogaloo Bois, who have demonstrated at Michigan's Capitol building . This is a group that is actively preparing to fight a second civil war. The Civil War killed over 620,000 Americans out of a population of 31,443,321 (1860 census). Anyone who considers another civil war a live option is either a traitor, a psychopath, a dupe of foreign provocateurs, or is cognitively impaired.
Private paramilitary bands and armed hate groups do not deserve to be called militia. Those who are seriously interested in bearing arms in an organized militia but do not want to join the National Guard or law enforcement have another option. In addition to the National Guard, some states (including Michigan1 and, in a recent development, Florida2) have official volunteer state defense forces. They are unpaid (they may be paid when activated), are not deployed outside the state, are not bound by enlistment contracts, and cannot be federalized in the way that National Guard units can be.
Michigan's Volunteer Defense Force website
MIVDF operates under the authority of the State of Michigan through the Michigan Department of Military and Veteran’s Affairs. The FAQ page on the MIVDF site gives further details about the laws under which MIVDF operates.
I have no connection with the MIVDF. I have no firsthand knowledge of the institutional culture of this or any other state VDF, but would I hope that their members do not support domestic terrorists or insurrectionists. I find it encouraging that the 5th Battalion of MIVDF posted the following message on their Facebook page after the plot to kidnap Gov. Whitmer came to light:
We have decided to write a statement in the hopes of distinguishing ourselves the 5th battalion and other State Defense Force members from the type of groups like the one recently associated with an attempt to bring harm to the Governor of Mich.
Please be aware the Michigan State Defense Force/MIVDF is a state regulated military organization under the command of the Governor of Michigan. As a part of the authorized State Military we are force multipliers charged with assisting civil authorities. We hold no political or religious views, we are not in support of any forms of extremism or discrimination.
Florida disbanded its state defense force in 1947, but Governor Ron DeSantis recently reconstituted it. The manner in which he has done so has raised concerns about how he intends to use it. According to The New York Times,
[…] the deployment this spring has been mired in internal turmoil, with some recruits complaining that what was supposed to be a civilian disaster response organization had become heavily militarized, requiring volunteers to participate in marching drills and military-style training sessions on weapons and hand-to-hand combat.
At least 20 percent of the 150 people initially accepted into the program dropped out or were dismissed, state officials acknowledged, including a retired Marine captain who filed a false imprisonment complaint against Guard sergeants with the local sheriff after he got into a dispute with instructors and was forcibly escorted off the site.
[…]
The original plan to field 200 volunteers with a budget of $3.5 million, proposed in late 2021, grew to 1,500 people and $108 million. The first-year budget includes $50 million for five aircraft and $2.7 million for boats — equipment that many experts say is beyond the budget of most State Guards.
[…]
Of the nine original State Guard recruiters and commanders who spent months recruiting for the organization, fewer than a third remain. The staff director who had been a proponent of the less militarized version of the program, appointed in January, was removed from his post just days before the inaugural graduation. The program’s personnel director was fired this week.
Jean Marciniak, a former member of the New York State Guard who runs a website and podcast about the nation’s State Guards, said Florida’s decision to include an armed law enforcement unit was highly unusual, as was the provision in the law putting the State Guard under the governor’s direct command, rather than under the state Department of Military Affairs and the National Guard.
“I’m not saying it’s a red flag, but I’ll say it’s unusual,” Mr. Marciniak said. “The 18 other defense forces do it one way, and Florida is doing it another way.”
Mr. Marciniak posted a notice on his website on Friday saying that his organization, StateDefenseForce.com, had polled its members and decided not to endorse the new force. This was based on a concern much different from that raised by the recruits who left. The website noted that Florida’s State Guard was acting as a military organization when by law it was a civilian-led agency staffed by volunteers who could elect to quit in the middle of an emergency.
Unless the Guard implements an official rank structure and operates under the umbrella of the military, the notice said, “we will encourage our community to not join the organization.”
(“Turmoil in Florida’s New State Guard, as Some Recruits Quit”, July 15, 2023. See also reporting by The Tampa Bay Times and The Miami Herald [paywalled].)