PROTESTS, INSURRECTION, AND THE SECOND AMENDMENT

Dispelling the Myth of the

Second Amendment
By Mary B. McCord, Executive Director, Institute for Constitutional Advocacy and Protection,
and Visiting Professor of Law, Georgetown University Law Center
PUBLISHED JUNE 2021

Brennan Center for Justice at New York University School of Law

Introduction
If there were ever any doubt about the threat that private paramilitary organizations pose to public safety,
national security, and the United States constitutional order, the insurrection at the U.S. Capitol on January
6 should have laid it to rest. The most significant conspiracy charges to be filed have been against members
of two private paramilitary organizations — one more traditional in its anti-government views and emphasis
on military-style training and military dress, 1 and the other more emphatic about its white male
“chauvinism” and willingness to openly encourage violence against perceived ideological enemies. 2 The
charging documents make clear that these groups coordinated their activities, including the provision of
weapons, and likely were instrumental in influencing the behavior of others who may not have initially
intended to assault U.S. Capitol Police, forcibly overrun the U.S. Capitol, and physically prevent the
certification of the Electoral College vote.

Although the size of the mob and its temporary success in interfering with government functions was
shocking and frightening to watch, that extremist paramilitary organizations would use violence on January
6 was not a surprise, and indeed was an outgrowth of their increasing engagement with the public over the
past year. Sometimes amassing to forcibly oppose government policies (as they did when storming
statehouses in protest against government-imposed public health orders related to Covid-19) 3 and sometimes
claiming to augment legitimate police forces (as they did when self-deploying during racial justice
demonstrations, ostensibly to protect property against violent anarchists), 4 private militias have repeatedly
used their assault rifles and military gear to intimidate and coerce others. After an election season during
which they seeded the false narrative of election fraud and doubled down on it after November 3, far-right
paramilitary organizations joined forces with conspiracy theorists and violent extremists to act on these
fictitious and baseless claims, radicalizing others along the way. 5 Tragic as the loss of lives, serious injuries,
property damage, and undermining of democracy were on January 6, one can only imagine the carnage that
likely would have occurred if the District of Columbia allowed the open carrying of firearms like many states
do.

The United States must reckon with the growing threat posed by unauthorized private militias, which have
been allowed to proliferate for far too long. This essay attempts to correct the widespread mythology that the
Second Amendment protects private paramilitary organizations and — even worse — that it protects their
right to forcibly oppose whatever they view as government tyranny. To the contrary, there is no authority
under federal or state law for private individuals to form their own private armies; the Supreme Court has
been clear that the Second Amendment does not prevent states from outlawing private paramilitary
organizations; and indeed, all 50 states prohibit them through their state constitutions, state statutes, or a
combination of both. Yet such organizations’ continued projection of armed authority over others — sending a
clear message of intimidation and coercion — is not just dangerous, it also squelches the First Amendment
rights of those seeking to express their views, peaceably assemble, and petition their government.

This essay also briefly responds to suggestions that private force has a role to play when law enforcement
fails. To grant such vigilante authority to publicly unaccountable and unregulated private actors would go
well beyond the individual right to bear arms for self-defense recognized by the Supreme Court in District of
Columbia v. Heller (2008). 6 What lines would be drawn for those wielding lethal weapons and arrogating to
themselves the supposed authority to determine when to use them? As the Supreme Court explained in the
1886 case of Presser v. Illinois, the states’ power to prohibit paramilitary organizations “is necessary to the
public peace, safety, and good order.” 7 The January 6 insurrection confirmed as much.

2 Brennan Center for Justice Dispelling the Myth of the Second Amendment
A “Well Regulated Militia” Means Regulated by the
Government
Private militia organizations sometimes suggest that the Second Amendment’s reference to “a well regulated
Militia,” 8 when considered in combination with what they view as the role of the militia in providing a check
against tyranny, authorizes their organizing, training, and functioning as military units. But history confirms
that “well regulated” has always meant regulated by the government. And although Federalist No. 46 refers to
the militia as a tool to repel the danger of a tyrannical government, 9 its reference is to the obligation of state
militias, not private militias.

Concerned about the dangers of standing armies, the colonies adopted militia laws long before the drafting of
the Second Amendment. The militia consisted of able-bodied men between certain ages who could be called
forth in defense of the state. The need for them to be “well regulated” was well recognized. As far back as 1647,
Massachusetts recognized that “the well managing of the Militia of this Common-wealth is a matter of great
concernment, therefore that it may be carried an end with the utmost safety and certaintie for the best benefit
of the Countrie.” 10 In 1724, New York’s militia law provided that “an orderly and well disciplin’d Militia is justly
esteemed to be a great Defence and Security to the Welfare of this Province.” 11

Early state constitutions made clear that the militia was always to be under civilian governmental control.
Virginia’s 1776 Bill of Rights provided that “a well regulated militia, composed of the body of the people, trained
to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be
avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and
governed by, the civil power.” 12 In conjunction with the constitutional designation of the governor as
commander in chief, this “strict subordination” clause provided for military authority to be “integrated with the
popular will as expressed through the elected officials of the Commonwealth.” 13 Moreover, it “ensure[d] the
right of all citizens to fight in the defense of their nation and to live free from the fear of an alien soldiery
commanded by men who are not responsible to law and the political process.” 14

At the federal level, by the time of the Constitutional Convention in 1787, insurgencies like Shay’s Rebellion
and other armed uprisings against the states gave the founders good reason to ensure that only the
government could call forth the militia, not rebel leaders deciding when and under what circumstances to take
up arms against the state. Thus, Article I, Section 8 of the U.S. Constitution gives Congress the authority “[t]o
provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions,” 15 and “[t]o provide for organizing, arming, and disciplining, the Militia,” while reserving the
appointment of officers and training to the states. 16 Article II, Section 2 makes the president the “Commander
in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into
actual service.” 17

Congress exercised its authority by passing the Militia Act of 1792, which provided for the states to form their
militias into what subsequently became the state National Guard units and other state militias reporting to the
governors. 18 The Militia Act also gave the president the authority to call forth the state militias as necessary to
repel invasion or suppress insurrection. And within the states, Virginia’s “strict subordination” clause became
the model for a substantively identical provision in the constitutions of nearly every state to join the Union. 19
Similarly, the states’ constitutional and statutory schemes provide for the governor — not private vigilantes —
to call forth the militia. 20

3 Brennan Center for Justice Dispelling the Myth of the Second Amendment
So, what of Federalist No. 46 and its suggestion that armed citizen militias must be empowered to oppose a
tyrannical government? James Madison’s language gives no credence to private armies. Instead, it makes clear
that it is the states that have the power, through the state militias, to be a counter to a traitorous leader who
would “pursue some fixed plan for the extension of the military establishment.” 21 In Madison’s words, “Besides
the advantage of being armed, which the Americans possess over the people of almost every other nation, the
existence of subordinate governments, to which the people are attached, and by which the militia officers are
appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple
government of any form can admit of.” 22

The Second Amendment Does Not Protect Private

Paramilitary Organizations
Private paramilitary organizations, whether they identify as “militias” or deny that characterization, uniformly
argue that their activity is protected by the Second Amendment. The mythology that the U.S. Constitution
protects armed private militias is so widespread that it is sometimes repeated by law enforcement officers
themselves. When a young man shot and killed two racial justice demonstrators after joining forces with a
citizen militia that deployed to “protect” private property in Kenosha, Wisconsin, in the summer of 2020, the
local police chief referred to the armed vigilantes as “exercis[ing] their constitutional right.” 23 But for all of the
gray areas that remain about the scope of the Second Amendment’s protections, this is not one of them. The
Supreme Court has been clear since 1886 that states must be able to prohibit private paramilitary organizations
as “necessary to the public peace, safety, and good order.” 24

Presser v. Illinois involved a challenge to a state law — one of 29 similar state laws that remain on the books to
this day — that made it unlawful “for any body of men whatever, other than the regular organized volunteer
militia of this state, and the troops of the United States, to associate themselves together as a military
company or organization, or to drill or parade with arms in any city or town of this state, without the license of
the governor thereof.” 25 Although the Second Amendment had not yet been held applicable to the states in
1886, the Supreme Court nevertheless did not equivocate on the limit of its protections: “We think it clear that
the sections under consideration, which only forbid bodies of men to associate together as military
organizations, or to drill or parade with arms in cities and towns unless authorized by law do not infringe the
right of the people to keep and bear arms.” 26 The Court further explained (while rejecting a First Amendment
argument that the state’s anti-militia statute infringed the right to peaceably assemble):

Military organization and military drill and parade under arms are subjects especially under the
control of the government of every country. They cannot be claimed as a right independent of law.
Under our political system they are subject to the regulation and control of the state and federal
governments, acting in due regard to their respective prerogatives and powers. 27

More than 120 years later, recognizing for the first time that the Second Amendment protects an individual
right to bear arms for self-defense, the Supreme Court restated what it had made clear in Presser: the Second
Amendment “does not prevent the prohibition of private paramilitary organizations.” 28 Indeed, Justice
Antonin Scalia, writing for the majority in District of Columbia v. Heller, noted that no one supporting the
individual rights interpretation of the amendment had even contended that states could not ban such
groups. 29

4 Brennan Center for Justice Dispelling the Myth of the Second Amendment
The result is the same under state constitutional provisions protecting the right to keep and bear arms. Just 10
years after Presser was decided, the Supreme Judicial Court of Massachusetts concluded that the state’s
declaration of rights, which provided that “the people have a right to keep and bear arms for the common
defense,” did not include “the right to associate together as a military organization, or to drill and parade with
arms in cities and towns, unless authorized to do so by law.” 30 Citing Presser, the Massachusetts court referred
to the matter as “affecting the public security, quiet, and good order,” and within the police powers of the
legislature to regulate. 31

The State of Washington left nothing to doubt in its Declaration of Rights, providing that “[t]he right of the
individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this
section shall be construed as authorizing individuals or corporations to organize, maintain or employ an
armed body of men.” 32 Upholding a state statute effectuating the constitutional provision by explicitly
prohibiting organizations from associating as military companies, the Washington Supreme Court in 1907
elaborated on the threat posed by such groups: “Armed bodies of men are a menace to the public. Their mere
presence is fraught with danger, and the state has wisely reserved to itself the right to organize, maintain, and
employ them.” 33

All 50 States Prohibit Private Paramilitary

Organizations
Whether by virtue of state constitutional provisions, anti-militia statutes like the one at issue in Presser, or
other state statutes, all 50 states have at least one prohibition on private paramilitary organizations.
Following the Virginia model, 48 state constitutions contain a clause requiring the subordination of the
military to civilian authorities. 34 In addition, 29 states have anti-militia statutes similar to the one upheld in
Presser, 35 and 25 states have laws that generally prohibit teaching, demonstrating, instructing, training, and
practicing in the use of firearms, explosives, or techniques capable of causing injury or death, for use during
or in furtherance of a civil disorder. 36 Of particular usefulness where private militias seek to usurp the role of
law enforcement by purporting to provide security for persons or property, 11 states prohibit falsely assuming
or engaging in the functions of peace officers, law enforcement officers, or public officials. 37 Another nine
states have laws that ban wearing the uniforms of, or similar to, the uniforms of the United States military or
foreign military. 38

Although infrequently enforced, there is precedent for the use of these state law provisions beyond the late
19th and early 20th centuries. In 1982, a federal district court in Texas enforced that state’s anti-militia law
to permanently enjoin the Ku Klux Klan (KKK) and its militia unit, the Texas Emergency Reserve, from
associating as a private military or paramilitary organization, carrying on military or paramilitary training,
and parading in public with firearms. 39 The KKK and its militia arm had engaged in numerous deployments
to “protect” property, patrol the border, and intimidate the plaintiff class of Vietnamese fishermen. 40

The court rejected both First and Second Amendment challenges to the statute. As to the former, it held that
the Texas Emergency Reserve’s military operations were impermissible “‘conduct’ not ‘speech,’” and that
even if the conduct contained elements of protected expression, the state could regulate it under United
States v. O’Brien (1968), 41 because the Texas law’s restriction on First Amendment freedoms was no greater
than necessary to further an important governmental interest. 42 The court articulated that interest as

5 Brennan Center for Justice Dispelling the Myth of the Second Amendment
“protecting citizens from the threat of violence posed by private military organizations,” which it described as
“vital” because the proliferation of such organizations “threatens to result in lawlessness and destructive
chaos.” 43

As to the latter, the court followed the prevailing school of thought at the time that the Second Amendment
prohibited only infringement of the right to bear arms when associated with the state militia, an interpretation
later rejected by the Supreme Court in Heller. 44 But the court also recognized Presser’s teaching that “[i]t
cannot be successfully questioned that the state governments, unless restrained by their own constitutions,
have the power to . . . control and regulate the organization, drilling, and parading of military bodies and
associations, except when such bodies or associations are authorized by the militia laws of the United States.” 45
The court concluded that equitable principles dictated that it could enforce the Texas statute through injunctive
relief, emphasizing that “[m]ilitary organizations are dangerous wherever they exist, because of their
interference with the functioning of a democratic society and because of their inconsistency with the State’s
needs in operating its militia.” 46

The Fourth Circuit weighed in on the enforcement of state anti-militia and anti-paramilitary-activity laws in
Person v. Miller in 1988. 47 In that case, the leader of the Carolina KKK challenged a judgment of contempt for
violating a court order (obtained as a result of the settlement of a class action brought by Black citizens who had
been targeted for violence and intimidation by the Carolina KKK) prohibiting him from operating a military
organization and engaging in paramilitary activity in violation of the state’s laws. 48 The Fourth Circuit upheld
the contempt conviction, concluding that the evidence was sufficient to establish that the KKK leader had
organized a military organization with the goal of overthrowing the government and had directed and engaged
in exercises involving weapons and tactical training in furtherance of that objective. 49

More recently, a Virginia state court denied “demurrers” (the state equivalent of motions to dismiss) sought by
defendant militia and paramilitary organizations and their leaders in a lawsuit brought after the 2017 Unite the
Right rally in Charlottesville. The suit, on behalf of the city of Charlottesville, local businesses, and local
residential associations, sought declaratory and injunctive relief under the state constitution’s strict
subordination clause, state statutes banning paramilitary activity and the false assumption of the functions of
law enforcement, and the common law of public nuisance. 50 The court concluded that “[t]here appears to be no
place or authority for private armies or militia apart from the civil authorities and not subject to and regulated
by the federal, state, or local authorities.” 51 It rejected First and Second Amendment arguments made by the
defendants, holding:

No one is being denied their right to speak, to assemble and protest, or even to bear firearms. But when
a group comes as a unit, in uniform, with military or law enforcement weapons, equipment, tactics,
and appearance, under a clear chain of command authority, looking like the police or military, and they
are neither a part of or subject to the local, state, or federal military or police, and are subject to
neither, this is a legitimate concern. 52

Conclusion
Against the backdrop of 2020, and in particular what some perceive as the failure of law enforcement to
adequately keep the peace during racial justice demonstrations, some scholars have suggested a useful role for
“private force” in filling this gap. 53 Some analogize to the victimization of southern Black Americans and

6 Brennan Center for Justice Dispelling the Myth of the Second Amendment
Unionists by violent Confederate factions after the Civil War, 54 and to collective armed defense during the civil
rights movement when law enforcement largely failed to protect against KKK attacks on nonviolent protestors
and the shootings of Black leaders. 55 It is argued that decentralizing the use of force is preferable to a
government monopoly on the use of force, particularly when “those of unequal strength, power, and numbers”
are overcome by adversaries acting illegitimately against the public peace and when “government agents are
unable or unwilling to supply the necessary police protection.” 56 It is posited that armed self-defense is the only
practical mechanism citizens have to protect themselves and their businesses in the absence of effective police
presence. 57 The common law right of citizen’s arrest is also held up as an example of America’s historical
reliance on private force. 58

Although collective self-defense against murder and physical injury is a far cry from collective self-defense
against looting and property damage — the former possibly warranted even if not sanctioned by law —
America’s long history of violent white supremacy does not itself support an ahistorical view of private militias
and the scope of the Second Amendment. And although the scholars discussing alleged police failures during
2020’s racial justice demonstrations do not directly advocate for an interpretation of the Second Amendment
that protects private militias, some of their arguments extend dangerously close. But just as the common law
tradition of citizen’s arrest — historically understood as the right to arrest another for a crime committed in
one’s presence 59 — does nothing to support the right of armed groups to usurp law enforcement’s role and
proactively seek out law violators, neither does the Second Amendment’s individual right to bear arms for self-
defense support armed private militias collectively engaging in the functions of properly authorized law
enforcement.

The insurrection on January 6 establishes the fallacy of any effort to support a legitimate role for private
militias. In the eyes of the members of private paramilitary groups who violently overran the U.S. Capitol Police
and delayed the counting of the Electoral College votes, they were simply stepping in where law enforcement
had abdicated its role to “Stop the Steal.” Similarly, in the eyes of the private militia members who plotted to
kidnap Michigan Governor Gretchen Whitmer and put her on trial for treason, 60 they were simply exercising
their right to make a citizen’s arrest. These may be extreme examples, but they illustrate the dangerous line-
drawing that any acceptance of private paramilitary activity would entail. And they illustrate why, since well
before the founding, a “well regulated militia” has always meant regulated by the government, not private
actors.

7 Brennan Center for Justice Dispelling the Myth of the Second Amendment
Endnotes
1
See Third Superseding Indictment, United States v. Caldwell, Criminal No. 21-cr-28-APM (D.D.C. Mar. 31, 2021).

2
See First Superseding Indictment, United States v. Nordean, Criminal No. 21-cr-175 (TJK) (D.D.C. Mar. 10, 2021).

3
See, e.g., Paulina Firozi, Anti-Government Activist Ammon Bundy Arrested After Maskless Protesters Storm Idaho Capitol, WASH. POST (Aug.
25, 2020), https://www.washingtonpost.com/nation/2020/08/25/ammon-bundy-idaho; Kathleen Gray, In Michigan, a Dress Rehearsal for the
Chaos at the Capitol on Wednesday, N.Y. TIMES (Jan. 9, 2021), https://www.nytimes.com/2021/01/09/us/politics/michigan-state-capitol.html.

4
See DFRLab, Armed Militias Mobilize on Social Media Hours Before Deadly Kenosha Shooting, MEDIUM (Aug. 26, 2020), https://
medium.com/dfrlab/armed-militias-mobilize-on-social-media-hours-before-deadly-kenosha-shooting-1ee5925a035f; Matt Zapotosky et al.,
Former City Council Candidate Arrested After Man Is Shot at New Mexico Protest with Militia Group, WASH. POST (June 16, 2020),
https://www.washingtonpost.com/nation/2020/06/16/albuquerque-militia-shooting-protest.

5
See DFRLab, #StopTheSteal: Timeline of Social Media and Extremist Activities Leading to 1/6 Insurrection, JUST SECURITY (Feb. 10,
2021), https://www.justsecurity.org/74622/stopthesteal-timeline-of-social-media-and-extremist-activities-leading-to-1-6-insurrection.

6
Dist. of Columbia v. Heller, 554 U.S. 570, 592 (2008).

7
Presser v. Illinois, 116 U.S. 252, 268 (1886).

8
U.S. CONST. amend. II.

9
THE FEDERALIST NO. 46 (James Madison) [hereinafter FEDERALIST NO. 46].

10
THE BOOK OF THE GENERAL LAUUES AND LIBERTYES CONCERNING THE INHABITANTS OF THE MASSACHUSETS 39 (Cambridge, Mass. 1647).

11
AN ACT FOR SETTLING AND REGULATING THE MILITIA 269 (New York, William Bradford 1724).

12
VA. CONST. art. I, § 13 (1776) (emphasis added).

13
A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 274 (1974).

14
Id. at 277.

15
U.S. CONST. art. I, § 8, cl. 15.

16
U.S. CONST. art. I, § 8, cl. 16.

17
U.S. CONST. art. II, § 2, cl. 1.

18
Act of May 8, 1792, 1 Stat. 271.

19
Prohibiting Private Armies at Public Rallies: A Catalog of Relevant State Constitutional and Statutory Provisions, INST. FOR CONST.
ADVOC. & PROTECTION (Sept. 2020), https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2018/04/Prohibiting-Private-Armies-
at-Public-Rallies.pdf [hereinafter ICAP 50-State Catalog].

20
Virginia’s constitutional and statutory scheme is typical: the governor is the commander in chief. VA. CONST. art. V, § 7, cl. 2; VA. CODE ANN. §
44-8. The state’s militia is subdivided into three classes: (1) the National Guard, which is composed of the Army National Guard and Air National
Guard; (2) the Virginia Defense Force; and (3) the unorganized militia. VA. CODE ANN. § 44-1. All three classes are strictly regulated. The
“unorganized militia” consists of all able-bodied residents between certain ages who are citizens of the United States or intend to become citizens
and are residents of the commonwealth. Id. §§ 44-1, 44-4. Only the governor has the power to call forth the militia, which he may do for purposes
established by statute. Id. § 44-86; and when so called forth, the unorganized militia is incorporated into the Virginia Defense Force, which reports
through the Virginia Department of Military Affairs to the adjutant general, who reports to the governor. Id. §§ 44-11, -54.4, -88.

21
FEDERALIST NO. 46.

22
Id.

23
Jeremy Stahl, Kenosha Police Chief Blames Protesters for Their Own Deaths, Defends Vigilante Groups, SLATE (Aug. 26, 2020),
https://slate.com/news-and-politics/2020/08/kenosha-police-chief-daniel-miskinis-blames-protesters-for-own-deaths.html.

8 Brennan Center for Justice Dispelling the Myth of the Second Amendment
24
Presser, 116 U.S. at 268.

25
Id. at 253.

26
Id. at 264–65 (emphasis added). Even before Presser, the Illinois Supreme Court had rejected a challenge to the same state statute,
holding that there was no right “to bodies of men organized into military companies, under no discipline by the United States or State
authorities, ‘to parade with arms’ in any city or public place as their inclination or caprice may prompt them.” Dunne v. People, 94 Ill. 120,
140 (1879). According to the court, the matter was “within the regulation and subject to the police power of the State.” Id. at 141.

27
Presser, 116 U.S. at 267.

28
Heller, 554 U.S. at 621.

29
See id. It was not until two years later that the Supreme Court conclusively held that the Second Amendment applies to the states
through the Due Process Clause of the Fourteenth Amendment. See McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).

30
Commonwealth v. Murphy, 166 Mass. 171, 172 (1896).

31
Id.

32
WASH. CONST. art. 1, § 24 (emphasis added).

33
State v. Gohl, 46 Wash. 408, 412 (1907).

34
See ICAP 50-State Catalog, supra note 19. Only Georgia and New York do not contain such a provision. Georgia’s constitution does,
however, provide that “The civil authority shall be superior to the military,” GA. CONST. art. I, sec. II, para. VI. Georgia also has both a state
anti-militia statute like the one upheld in Presser, GA. CODE ANN. § 38-2-277, and an anti–paramilitary activity statute, GA. CODE ANN. § 16-
11-151. New York has an anti-militia statute similar to the one upheld in Presser, N.Y. MIL. LAW § 240(1), and also bans paramilitary
organizations from practicing or training in warfare or sabotage “for the purpose of unlawfully causing physical injury to any person or
unlawfully damaging the property of any person,” N.Y. MIL. LAW § 240(6). Moreover, New York law bars wearing uniforms similar to that
worn by the military or police forces of a foreign state, N.Y. MIL. LAW § 238-c(a).

35
States with anti-militia laws are Alabama, Arizona, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New York, North
Carolina, North Dakota, Oklahoma, Texas, Washington, West Virginia, and Wyoming. See ICAP 50-State Catalog, supra note 19.
Michigan’s law is much more limited than the others, as it applies only to societies confined to members of a certain race and only when
the governor so orders. MICH. COMP. LAWS § 750.402.

36
States with anti-paramilitary-activity laws are Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Louisiana,
Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode
Island, South Carolina, Tennessee, Virginia, Washington. See ICAP 50-State Catalog, supra note 19.

37
These states are Idaho, Iowa, Michigan, New Hampshire, New Mexico, Nevada, Oklahoma, Texas, Virginia, Washington, and Wisconsin.
See ICAP 50-State Catalog, supra note 19; see, e.g., NEV. REV. STAT. § 197.120 (prohibiting the willful exercise of any of the functions or
performance of any of the duties of a public officer without legal authorization). Federal law also prohibits falsely assuming the functions of
an officer or employee of a U.S department or agency. See 18 U.S.C. § 912. In 2020, James Benvie, the leader of a private militia that set
up camp on the southwest border between New Mexico and Mexico and unlawfully detained migrants entering the country, was convicted
of violating 18 U.S.C. § 912 and sentenced to 21 months in prison. See News Release, Man Sentenced to 21 Months in Prison for
Impersonating a Border Patrol Agent, U.S. DEPT. JUSTICE U.S. ATTORNEY’S OFFICE DIST. NEW MEXICO (Oct. 20, 2020), https://
www.justice.gov/usao-nm/pr/man-sentenced-21-months-prison-impersonating-border-patrol-agent#:~:text=October%2020%2C%202020-
,Man%20sentenced%20to%2021%20months%20in%20prison%20for%20impersonating%20a,of%20a%20Border%20Patrol%20agent.

These states are Alabama, Arizona, California, Florida, Maine, Michigan, New York, Rhode Island, and Virginia. See ICAP 50-State
38

Catalog, supra note 19.

39
Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 219-20 (S.D. Tex. 1982).

40
Id. at 205–06.

41
United States v. O’Brien, 391 U.S. 367 (1968).

42
Vietnamese Fishermen’s Ass’n, 543 F. Supp. at 209.

43
Id. at 216.

9 Brennan Center for Justice Dispelling the Myth of the Second Amendment
44
Id. at 210.

45
Id. at 216 (quoting Presser, 116 U.S. at 267–68).

46
Id. at 218.

47
Person v. Miller, 854 F.2d 656 (4th Cir. 1988).

48
Id. at 659–60.

49
Id. at 660–61.

50
City of Charlottesville v. Pa. Light Foot Militia, No. CL 17-560, 2018 WL 4698657 (Va. Cir. Ct. July 7, 2018).

51
Id. at *4.

52
Id. at *12. After the court’s ruling, the parties resolved the case through consent decrees entered by the court that permanently prohibited
the defendants and their successor organizations from returning to Charlottesville “as part of a unit of two or more persons acting in concert
while armed with a firearm, weapon, shield, or any item whose purpose is to inflict bodily harm, at any demonstration, rally, protest, or
march.” See Consent Decree, Pa. Light Foot Militia, No. CL 17-560, at 1 (Va. Cir. Ct. July 29, 2018), https://www.law.georgetown.edu
/icap/wp-content/uploads/sites/32/2018/08/All-Consent-Decrees-and-Default-Judgments-without-photos.pdf.

See generally Nicholas James Johnson, Private Arms and Civil Unrest: Lessons from the Black Freedom Movement (Liberty & Law
53

Center Rsch. Paper No. 20-09, Nov. 10, 2020).

See Patrick M. Garry, The Second Amendment as a Guard Against Government-Sanctioned Tyrannous Factions 17 (Liberty & Law
54

Center Rsch. Paper No. 20-06, Oct. 28, 2020).

55
See Ryan Davis, Neo-Republicanism, Nondomination, and Gun Rights in Uncertain Times 26–27 (Liberty & Law Center Rsch. Paper No.
20-08, Nov. 6, 2020).

56
See Robert Leider, The State’s Monopoly of Force and the Right to Bear Arms 5 (Liberty & Law Center Rsch. Paper No. 20-05 Oct. 16,
2020), 116 NW. U. L. REV. (forthcoming).

See David E. Bernstein, The Right to Armed Self-Defense in the Light of Law Enforcement Abdication 40 (Liberty & L. Ctr. Rsch. Paper
57

No. 20-03, Oct. 14, 2020).

58
See Leider, supra note 56, at 16.

59
See Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 CORNELL J.L. & PUB. POL’Y 557, 564 (2016).

60
See Criminal Complaint, United States v. Fox, Case 1:20-mj-00416-SJB, (W.D. Mich. Oct. 6, 2020), https://www.justice.gov/usao-wdmi
/press-release/file/1326161/download. The defendants were opposed to Governor Whitmer’s public health orders during the Covid-19
pandemic.

10 Brennan Center for Justice Dispelling the Myth of the Second Amendment