But even as that is the reality on the ground, and even as most militia activity is actually illegal under state law, the dangerous ideology that drives those extremists is propped up not only by Republican politicians but by Republican-appointed judges.
That came through in a striking federal court decision handed down late last week, when U.S. District Judge Roger Benitez struck down California’s ban on assault-style weapons. The decision has gotten attention in part because it reads like a cross between an advertisement for the AR-15 (“Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment”) and the stylings of a pre-law freshman trying to turn what he heard on Fox News into something resembling legal prose.
But the most notable part may be this, when Benitez quite literally says that the reason AR-15s should be legal is because they’d be useful if you wanted to overthrow the U.S. government:
Before the Court there is convincing and unrebutted testimony that the versatile AR-15 type of modern rifle is the perfect firearm for a citizen to bring for militia service. A law that bans the AR-15 type rifle from militia readiness is not a reasonable fit for protecting the Second Amendment right to keep and bear arms for the militia. It has been argued that citizens with nothing more than modern rifles will have no chance against an army with tanks and missiles. But someone forgot to tell Fidel Castro who with an initial force of 20 to 80 men armed with M-1 carbines, walked into power in Havana in spite of Cuba’s militarized forces armed with tanks, planes and a navy.
What exactly is the “militia service” the judge speaks of? In America today, it does not mean anything like the “well regulated Militia” that the Second Amendment describes as “necessary to the security of a free State.”
There are no private militias defending America from outside attack. The ones who call themselves that — which are widely understood to be the greatest terrorism threat America faces today — are those that use the threat of violence, and sometimes actual violence, to achieve political aims.
There’s an extensive debate about exactly what the Framers intended in the Second Amendment. But as Josh Horwitz, executive director of the Coalition to Stop Gun Violence and co-author of “Guns, Democracy, and the Insurrectionist Idea,” told me: “There’s no such thing as a militia that’s untethered to the state.”
While Antonin Scalia may have claimed in District of Columbia v. Heller, the 2008 Supreme Court decision that for the first time established an individual right to own guns, that the Framers conceived of every able-bodied man as part of a kind of militia-in-waiting, it’s only when organized and sanctioned by the government that they become a militia.
Which is why the only legitimate militias in America today are the 50 state National Guards. And in fact, every state has at least some laws forbidding paramilitary activity and training. But these laws are seldom enforced, either because law enforcement officials don’t take these groups seriously or are afraid to confront them.
While there are some such groups emerging on the left, they’re still primarily a creature of the extreme right. As Horwitz says, “The thing they do share is a fidelity to gun rights and to the idea that violence has a role in the political process.”
That’s the key — not just to the threat they pose, but to the way they’re supported by the Republican Party.
First, you have the insurrectionist groups themselves. Next, you have Republican politicians who validate their perspective, not just by promoting gun rights in general but by insisting that those rights exist so that private citizens can react to government policy they don’t like with violence.
When you see Sen. Ted Cruz (R-Tex.) wearing a mask that reads “Come and take it” when attending President Biden’s inauguration, what is the message of that phrase, said so often by gun advocates?
It’s a threat, that if gun regulations are made into law — not through a coup that overthrows the American government but through the legitimate process of legislation — then people like him will not only refuse to comply with the law but will meet any government official attempting to enforce that law with deadly violence.
Cruz might claim he wouldn’t go that far, or that he’s just showing how strongly he feels about his guns. But the message unequivocally validates the perspective of the insurrectionists.
And finally, you have conservative judges steadily dismantling the government’s ability to regulate guns. Gun advocates get to have it both ways: They can hand-wave about the “well regulated Militia” clause in the Second Amendment to make it all but meaningless, but also say that gun rights must be almost limitless so people can be ready to organize into private militias to overthrow the government.
So while we have no real militias in America apart from the National Guard, we do have people — including many people with power — who want to sustain the idea of private militias and the threat of insurrection. What does that mean for our politics?
“When push comes to shove, it looks like Jan. 6 and a bullet in Gabby Giffords’s head,” Horwitz says. “You can’t have a government where the private guys with guns make the rules.”