Jonathan Backer: The Second Amendment does not protect militia activity

The column below reflects the views of the author, and these opinions are neither endorsed nor supported by WisOpinion.com.

Last Tuesday night, I watched my Twitter feed in horror as the streets of my hometown transformed into a battlefield under the watchful eye of the Kenosha Police Department and the Kenosha County Sheriff’s Department.  My heart ached for my city and its residents as a gunman extinguished two lives while armed militia groups menaced protesters from rooftops and street corners.

This did not have to happen.  Local law enforcement had all the information it needed to put a stop to these militia groups’ organized show of force long before the evening devolved into chaos and bloodshed.  In the hours before deploying en masse to downtown Kenosha, militia groups engaged in a frenzy of activity on social media, detailing their plans for the evening and foreshadowing the risk of violence toward protesters.  Even if this torrent of social-media activity escaped notice, Sheriff David Beth and Chief of Police Daniel Miskinis have both acknowledged that militia leaders reached out in advance in an attempt to coordinate the groups’ activity with local law enforcement.  Yet neither the Police Department nor the Sheriff’s Department took action to discourage the militias from mobilizing or to disperse them from downtown once they arrived.  Even more troubling, video footage from last Tuesday appears to show law enforcement thanking militia members for being on the scene.

Providing a window into the rationale behind this failure, Chief Miskinis said that the militias were “exercis[ing] their constitutional right.”  And Sheriff Beth echoed that mistaken belief, saying that the militias were exercising “a right that they have.”  If Chief Miskinis and Sheriff Beth are under the impression that the Second Amendment to the U.S. Constitution protects the rights of armed groups to patrol the streets of Kenosha, they are mistaken.  Although the Second Amendment guarantees an individual right to bear arms, the U.S. Supreme Court made clear in District of Columbia v. Heller that the Amendment “does not prevent the prohibition of private paramilitary organizations.”

And as my organization, the Institute for Constitutional Advocacy and Protection (ICAP), has shared in letters to Kenosha officials and Wisconsin Attorney General Josh Kaul, Wisconsin, like every other state, prohibits militia groups from operating within its borders.  Wisconsin’s constitution and statutes establish a carefully calibrated regulatory framework governing the state’s military forces.  Under Wisconsin law, the Governor is the commander-in-chief of the state’s National Guard and the sole authority that can call it into active service.  The legislature is the entity authorized to determine which individuals can serve in the National Guard and to regulate its activities.  And Wisconsin’s Constitution provides that “[t]he military shall be in strict subordination to the civil power,” meaning that private militia groups that do not answer to the Governor are illegal, plain and simple.

Moreover, it is a felony in Wisconsin for a private individual to falsely assume the duties of a public officer.  That means, when militia groups patrol downtown streets in coordinated fashion, bearing assault rifles, and outfitted in military-style gear for the putative purpose of “protecting” property or persons, they are engaging in criminal conduct.  Protecting the community from violence is the job of local law enforcement, not untrained and unregulated private groups.  And although the shooting of Jacob Blake has made painfully clear that much work remains to ensure that Black lives are valued and treated with dignity by Kenosha law enforcement, militia groups are not subject to any oversight or regulation whatsoever.  They have no place in our community.

In the spirit of Wisconsin’s motto—Forward—I hope that Kenosha’s elected officials take stock of last week’s violence and wield their authority to ensure that militias never again terrorize the city’s streets.

Jonathan Backer is an attorney at the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law Center.  He grew up in Kenosha, where his parents still live and work.