What is a militia?
Federal and state laws generally use the term “militia” to refer to all able-bodied residents between certain ages who may be called forth by the government to defend the United States or an individual state. See10 U.S.C. § 246.When not called forth, they are sometimes referred to as the “unorganized militia.” A group of people who consider themselves part of the able-bodied residents referred to as members of the militia under state or federal law is not legally permitted to activate itself for duty. A private militia that attempts to activate itself for duty, outside of the authority of the state or federal government, is illegal.
How do I know if a group of armed people is an unauthorized private militia?
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. They sometimes train together and respond to events using firearms and other paramilitary techniques, such as staking out tactical positions and operating in military-style formations. They often purport to have authority to engage in military and law enforcement functions such as protecting property and engaging in crowd control.
These groups often engage in behaviors that show their intent to act as a private militia, such as wearing military-style uniforms, tactical gear, or identifying insignia; wielding firearms or other weapons; and operating within a coordinated command structure. Other factors—such as statements by leaders or members’ efforts to direct the actions of others—also may suggest that a group is acting as a private militia. Groups of armed individuals may engage in unauthorized militia activity even if they do not consider themselves to be “members” of a paramilitary organization.
Does the Second Amendment protect private militias?
No. In fact, the Supreme Court decided in 1886—and repeated in 2008—that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.” District of Columbia v. Heller, 554 U.S. 570, 621 (2008) (citing Presser v. Illinois, 116 U.S. 252 (1886)).
Is it legal to act as a private militia in Washington?
No. All 50 states prohibit private, unauthorized militias and military units from engaging in activities reserved for the state militia, including law enforcement activities. Some, including Washington, also prohibit paramilitary activity during or in furtherance of a civil disorder. Washington’s laws are described below:
Washington Constitution: The Washington Constitution forbids private military units from operating outside state authority, providing that “[t]he military shall be in strict subordination to the civil power.” Wash.Const. art. I, § 18. It also makes clear that the “right of the individual citizen to bear arms in defense of himself, or the state,” does not authorize “individuals or corporations to organize, maintain or employ an armed body of men.” Id.§ 24.
RCW Prohibiting private military units: Washington law makes it illegal for groups of people to organize as private militias without permission from the state. It is a misdemeanor for any “organized body other than the recognized militia organizations of this state, armed forces of the United States,” military schools, and veterans organizations to “associate themselves together as a military company or organize or parade in public with firearms. ”Wash. Rev. Code § 38.40.120.
RCW Prohibiting paramilitary activity RCW 9A.48.120
It is a Class B felony in Washington to teach or demonstrate how to use, apply, or make “any device or technique capable of causing significant bodily injury or death to persons, knowing, or having reason to know or intending that same will be unlawfully employed for use in, or in furtherance of, a civil disorder.” This is a Class B felony punishable by up to 10 yrs imprisonment and/or a fine of $20,000.
RCW Prohibiting impersonation of law enforcement – RCW 9A.60.045
It is also a crime in Washington for a person to “create an impression that he or she is a law enforcement officer” and “act with intent to convey the impression that he or she is acting in an official capacity” such that “a reasonable person would believe the person is a law enforcement officer.” This is a gross misdemeanor punishable by up to 364 days in County Jail and/or a fine up to $5000.
What should I do if I see armed groups in my neighborhood or gathering in community spaces?
• First, document what you see:
- What are the armed people doing?
- What are the armed people wearing?
- Are they carrying firearms? If so, what type? If not, are they carrying other types of weapons?
- Are they wearing insignia? If so, what does it say or look like?
- Are they bearing signs or flags?
- Do they seem to be patrolling like a law enforcement officer might do?
- Do they seem to be coordinating their actions?
- Do they have a leader?
- Are they stopping or talking to people outside of their group?
- Do they appear to be provoking or threatening violence? If so, what are they doing specifically?’
• Second, notify your political representatives and ask them to enforce state laws that prohibit unauthorized militias.
This Fact Sheet was prepared by the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law Center, with the pro bono assistance of law firms Akin Gump Strauss Hauer & Feld, Jones Day, and O’Melveny & Myers. ICAP’s mission is to use the power of the courts to defend American constitutional rights and values.
Washington State has other laws not directed specifically at unauthorized militia. These laws, if enforced, should call for the arrest of weapons-carrying individuals or groups who parade around in public while armed or present themselves in public as “defending” the community, or “protecting” others’ property:
RCW 9.41.270 makes the carrying of any weapon “apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons” punishable as a gross misdemeanor.
RCW 18.170.160 (4) provides that after June 30, 1992, a person is guilty of a gross misdemeanor if he or she performs the functions and duties of an armed private security guard in this state unless the person holds a valid armed private security guard license issued by the department.