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Originally Published in Thomas Jefferson Law Review Spring 1996
Note and Comment
STOCKPILING WEAPONS: CAN PRIVATE MILITIAS RECEIVE PROTECTION UNDER THE FIRST AND SECOND AMENDMENTS?
Monica Sue Barry [*]
Copyright © 1996 Thomas Jefferson Law Review Association; Monica Sue Barry
I. INTRODUCTION
Among the most powerful and passionate debates of our day is the dialogue surrounding government oppression and the desire to preserve personal liberties. It is not only a contemporary discussion, but one that has fueled controversy since the time of the Federalists and the Jeffersonians. Today, energizing this tension are prominent events that include the government siege at the Ruby Ridge home of white supremacist Randy Weaver [1] and the disaster at the Branch Davidian Compound of David Koresh in Waco, Texas. [2] Many lesser known events, too numerous to mention, contribute to the debate as well. [3] The recent bombing of the Federal Building in Oklahoma City, which brought this issue to the forefront, resulted in the deaths of 168 and the injuries of hundreds more. [4] For various reasons, the Oklahoma bombing was rumored to be [p. 62] a retaliation effort by right wing extremists. [5] These right wing groups decry the actions of the federal government, claiming its oppression increasingly denies Americans their personal freedoms. [6] This attitude can be attributed to the frustration people feel about the current political climate. "People feel terribly frustrated about the body politic . . . . They think the people in power aren't interested in people like them." [7] Due to this growing belief, participation in private militia groups has increased across the country. Consequently, there is a proportionate increase in their activities. [8] There are nearly 200 militia groups spread throughout at least forty states. [9] Of these groups there are approximately 100,000 members. [10] For the most part, private militia members consist of "armchair soldiers" who may receive a newsletter or on occasion attend a meeting. [11] Of greater concern are the few radical members who instill paranoia in these relatively benign ranks, using anti-government rhetoric to justify their actions. [12] The problem has become so serious that some federal employees, particularly in rural areas, have altered their daily routines to avoid becoming unfortunate targets of increased hostility by the fanatic fringe of these paramilitary groups. [13] [p. 63]
At the nexus of this anti-government movement is the growing perception that the federal government has waged war on its citizens through taxation and greater government regulation. [14] This perceived war translates into a fear of government and "an international plot to enslave freedom-loving Americans." [15] This fear is so strong that nearly any sector of public or private America is blamed for the perceived oppressive conspiracy. Right wing literature includes the following contributors to the feared conspiracy: federal agents, African-Americans, Jews, Republicans, Democrats, bankers, foreigners, the IRS, incumbent politicians, immigrants, population control, and the United Nations, among others. [16] The anti- government sentiment is sometimes explained as a legacy to the Vietnam War: A lot of roots are in the Vietnam War and the way we conducted that war-with deceit and without the consent of the society. I don't think the national government has ever been able to recapture the kind of trust that existed leading up to the war. People of all ideologies have far more mistrust of government. [17]
As we stand in the shadow of the Oklahoma bombing, we realize the frightening results of the right wing fringe and their fear of the government. The most apparent results are the ability of paramilitary groups to make their presence known while at the same time defending themselves against their enemy, the federal government. Highly relevant to the Oklahoma tragedy is that reported bombings have more than doubled in recent years. [18] Some believe the increase in bombings is due in part to the availability of bombs and bomb [p. 64] making materials. [19] Others believe the increase is due to the rise in domestic terrorism and the ability of the militia movement to obtain and stockpile weapons in preparation for their Armageddon. [20]
What are we to do about the disasters these private militia groups threaten? Is Congress expected to "forge an imperfect compromise" between public safety and personal liberty in the form of anti-terrorism legislation? [21] The Ruby Ridge neighbor of Randy Weaver, Frank Reichert, states it is a matter of choosing sides: [T]he whole issue is a polarizing thing. If you believe in the government, if you believe that regulations are for our own good, that your government is out to do what's best for you, then you take one side. But if you believe that the government is a veil of tyranny coming down on us, then you're going to believe something else. People are heating up. And it's forcing people in the middle to take sides. [22]
The scope of private militia groups is not limited to their rallying cry of an oppressive government. Their threat to society includes many areas of common concern. Militia members have developed ties with "anti-abortion activists, radical anti-immigration advocates, Christian Identity believers, white separatists, gun lobbyists, the Christian Coalition and high powered right wing fund raisers." [23] There are incidents where the increased violence from the right includes the bombings of abortion clinics and stand-offs with federal officials attempting to enforce child support orders and gun control laws. [24]
Nearly all episodes of violence described here involve the use of weapons regulated by the government. The justification for the violence is consistently stated in terms of government oppression and the denial of personal freedoms.
Repeatedly, private militias assert they have an absolute right to [p. 65] bear arms. [25] There are those who believe "everyone should be able to own the military assault weapon of his choice--and form a militia to back up his rights." [26] They attempt to make a political statement out of their right to arm themselves. "It is gun disobedience, the far right alternative to non-violent disobedience practiced by the civil-rights movement of 30 years ago." [27] During the 1960's the left wing perpetrated the revolutionary concept of hatred of government and had the "apocalyptic vision." [28] Those left wing radicals share the same convictions as private militias of today; "[b]oth are moralists. . . .They believe the government is perpetrating evil in some way and [they] must resist evil by carrying out guerilla acts if necessary. These are moral extremists." [29]
This Note is premised on the assumption that private militias, including individual members acting on behalf of a group, are stockpiling weapons in preparation for a supposed civil war with the federal government, its agents and officers. [30] With this assumption is the legal inquiry: Does the government have the power to regulate the stockpiling of weapons by paramilitary groups? In particular, this Note will consider possible defenses to weapons stockpiling under the First and Second Amendments to the United States Constitution. Among these defenses are issues involving freedom of expression, the right to keep and bear arms (individually and collectively), the right to possess military weapons and the right to associate with non- governmentally authorized military organizations.
This Note will establish the government's ability to adequately manage any "arsenal building--in preparation for resistance of potential domestic tyranny." [31] It begins with a discussion of the term "private militia" and the distinction between the traditional and modern meaning of militia. This Note will then demonstrate that the First Amendment provides no protection to these groups when they seek a political voice through weapons stockpiling. Further, the fundamental governmental interests which provide the basis for [p. 66] regulation of weapons stockpiling will be addressed. Finally, it will be shown that Second Amendment jurisprudence does not limit the government's power to restrict the stockpiling of weapons by private militias. There is no need for Congress to create an "imperfect compromise" of anti-terrorism legislation, for the framers of the United States Constitution and those who have interpreted its meaning through the ages have already provided the answer to gun disobedience. [32]
II. WHAT IS A PRIVATE MILITIA?A) THE TRADITIONAL MILITIA
In defining the term "private militia" it is important to recognize the distinction between what is considered a "private militia" today and what was known during the birth of this country as "the Militia." [33] A private militia is not sanctioned through federal or state [p. 67] law. The U.S. Constitution, however, authorizes the formation of the Militia through the so called "Militia Clauses." [34] Therefore, whether or not a private militia has authority to carry on as a military organization is dependent upon the endorsement of the U.S. Constitution or a state constitution. The term "militia" has been defined as "a body of soldiers for home use, . . . a citizen army as distinguished from a body of mercenaries or professional soldiers." [35] Historically, in medieval Europe militia meant "the whole body of freemen . . . who were required by law to keep weapons in defense of their nation." [36]
During Colonial times, the Militia was considered the "proper form of defense." [37] To the colonists, traditional standing armies meant oppression and abuse of power by the feared British government. [38] Standing army soldiers were known to quarter themselves in private homes, and standing army officials often court-martialed private citizens. [39] Because the Militia of colonial times provided military force without the dread of standing armies, the colonists believed the Militia helped guard against a possible oppressive federal government. [40] The Supreme Court in United States v. Miller described the preference as follows:
It is there said: "Men of republican principles have been jealous of a standing army as dangerous to liberty." "In a [M]ilitia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species [p. 68] of military force." [41]
The Federalists and the Antifederalists both distrusted the government. [42] Each had no doubt that "the greatest danger to the new republic was a tyrannical government and that the ultimate check on tyranny was an armed population." [43] However, the Federalists believed the U.S. Constitution held sufficient guarantee against "despotism" through its system of checks and balances, [44] including Congress' ability to raise and support armies without appropriations for no more than two years. [45]
The Antifederalists were suspicious of the constitutional provision allowing the federal government to raise an army. [46] They also feared a federally organized militia would destroy the states' autonomy. [47] Therefore, the states were left to appoint militia officers and conduct militia training to serve as a double- check on any overzealousness of a federally controlled militia. [48] Even though each political faction held the same fundamental belief that standing armies could only mean the demise of liberty, each believed in different means to achieve those ends.
A compromise was negotiated between the two sides which called for language in the Second Amendment to acknowledge that "[a]well regulated Militia, [is] necessary to the security of a free State . . . ." [49] This clause gave the states the right to arm themselves against a possible oppressive government through a citizen militia. It provided a guarantee to the Antifederalists that the central government would be prohibited from denying individuals the right to arm themselves as a Militia, thereby allowing them to rely on the Militia for protection instead of a standing army. The other side of the compromise included implementing the Militia Clauses in the U.S. Constitution. [50] These clauses provided the Federalists with a guarantee [p. 69] that Congress had the power to create a central army and "for calling forth the Militia to execute the Law of the Union, suppress Insurrections and repel Invasions." [51] The compromise provided a check and balance on the power between the federal and state governments which satisfied both the Federalists and Antifederalists.
B) THE MODERN MILITIAToday, the National Guard is the modern equivalent of that compromise. [52] The National Guard consists of a state's citizens, but is substantially controlled by the federal government. Its effect is an "enrolled state militia," known as the National Guard, and an "unenrolled state militia." The unenrolled militia is a throwback to the historical underpinnings of the Militiamen of the 1700's and before. Its main purpose today is debated, but is essentially the same as that of the traditional unenrolled militia. [53] The traditional function of the unenrolled militia was to provide a continuous supply of "trained manpower" for the regular armed forces. [54]
Today, neither the Militia nor the National Guard is considered this country's premier defensive force. [55] Although this Note is not the place for a detailed history of the National Guard, [56] it is clear that the fears of the founding fathers and their opponents concerning standing armies and Militias have not come to fruition. "[A]t least since the American Civil War, [the states have] not found it necessary to defend their power, or the liberties of their citizens, by force of arms, against the national government." [57]
Today, the term "Militia" is rarely used in conjunction with the National Guard. More often the word "militia" is used when referring to private militia or paramilitary groups. Modernly, California defines "private militia" or "paramilitary organization" as "an unlawful assembly: teaching or demonstrating firearms, explosives, destructive devices or techniques for use in civil disorders. . . an organization which is not an agency of the United States government or of the [p. 70] State of California, . . . which engages in instruction or training in guerilla warfare or sabotage." [58]
C) THE SIGNIFICANCE OF THE DISTINCTION BETWEEN THE TRADITIONAL MILITIA AND THE MODERN PRIVATE MILITIA
The modern definition of militia illustrates how its meaning has evolved from the 1700's. This evolution is representative of the different needs of the two eras. The main purposes for the colonial Militia were to serve in place of an organized standing army, to resist foreign aggression, to act as an internal police force, and to counteract any federal standing army action against the states. [59] As our society evolved, the traditional, constitutionally authorized Militia became the National Guard. [60] Today, local governments have their own internal law enforcement agencies and the armed forces of the United States provide protection from foreign aggressors. The distinction between the colonial Militia and what has become known as private militias is significant because private militias of today justify their existence and actions on the same tenets and beliefs held by the traditional Militia of the 1700's. [61]
Included in those beliefs was a fear of an oppressive government and the ability to militarily guard against such a government. [62] However, the modern term "private militia" has been coined to identify with those who operate outside the confines of the constitutionally sanctioned establishment of the original Militia. [63] They do not act as agents of the federal or state governments, as does the National Guard. Government authorization was an essential [p. 71] element of the traditional Militia. [64] These groups are sometimes considered the "right wing fringe" and they pursue their cause regardless of the cost. [65] They justify violence in the name of protecting freedom. [66] In so doing, private militias fail to see the contemporary options available to them to alleviate modern political lethargy. To their ends, private militias have purloined the philosophy of the first militiamen, but have failed to place their actions in the proper context.
Private militias can arguably be considered insurrectionists. [67] Typically, private militia groups are suspicious of government and this causes them to resist established laws. [68] They often speak out in opposition of government, including rhetoric condoning or inciting violence. [69] Ironically, as insurrectionists these right wing groups, private militias, and paramilitary groups constitute the very thing the Militia Clauses were meant to guard against: possible internal uprising by those resisting the government or promoting the resistance of the government through violence. [70] In an effort to suppress insurrections, the government has the authority, under the U.S. Constitution, to call out the National Guard and terminate group activities which rise up against civil or political authority. [71] Stockpiling weapons is evidence of such an activity.
III. THE FIRST AMENDMENTCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a [p. 72] redress of grievances. [72]
A) EXPRESSIVE CONDUCT
The heart of this section is whether a private militia would have protection under the First Amendment from prosecution by the government for stockpiling weapons. The sub-issue is whether the activity of stockpiling weapons is communicative conduct sufficient to constitute "expression" and is therefore protected under the First Amendment. [73]
The First Amendment guarantees certain fundamental rights and freedoms to the people through the U.S. Constitution. It provides for freedom of religion, freedom of speech, freedom of the press and the freedom to assemble. [74] Occasionally, these freedoms are referred to collectively as "freedoms of expression."
Freedoms of expression include certain types of conduct that are protected under the First Amendment. As the ability to "express" oneself is not always limited to a verbal communication, "conduct" is sometimes considered expressive. [75] Expressive conduct may be constitutionally protected under the First Amendment if there is an "intent to convey a particularized message" and if under "the surrounding circumstances the likelihood [is] great that the message would be understood by those who viewed it." [76]
"Stockpiling arms" does not appear to be speech, and thus is not [p. 73] protected under the First Amendment as such. As communicative conduct, it is difficult to argue that stockpiling weapons attempts to convey a particular message, and harder still to argue that any message is likely to be understood by those who view it. However, a private militia's perspective might be that the effort to stockpile weapons is a direct result of their distrust in and dissatisfaction with the government. The need to protect themselves and prepare for civil war might be a direct representation of their belief the government has waged war on its citizens. As such, weapons stockpiling could be a symbol of that belief.
In determining whether the conduct of stockpiling weapons is expressive conduct, paramilitary groups would have to prove stockpiling weapons is conduct for which its particular message would likely be understood by those who viewed it. This is a difficult argument because a stockpile of weapons could mean a fear of foreign governments, international terrorists, other militia groups, or even a fear of or intent to harm a neighbor or employer. The particular message of stockpiling weapons as a symbol of a group's hatred of government, without more, would not likely be understood by those who viewed it.
B) ASSUMING THE CONDUCT IS COMMUNICATIVE, MAY THE GOVERNMENT JUSTIFY INCIDENTAL LIMITATIONS ON EXPRESSIVE FREEDOMS?In the unlikely event a private militia would be able to demonstrate the conduct of stockpiling weapons is expressive conduct, there remain two categories of conduct that are not protected "expressions" under the First Amendment in which stockpiling weapons would fall. First, conduct so unexpressive that it fails to make any expression at all is not protected conduct under the First Amendment. [77] Second, conduct meant to intimidate, incite violence or incite an immediate breach of the peace is similarly not protected conduct under the First Amendment. [78] This second type of conduct "resembles the use of 'fighting words,"' which is a doctrine outlined in Chaplinsky v. New [p. 74] Hampshire. [79] Such conduct constitutes a "dangerous communication" that interferes with public peace and will not be protected under the First Amendment. [80] As such, the government would be able to justify incidental limitation of that conduct in the appropriate circumstances.
Since no group has come before a court seeking protection under the First Amendment for stockpiling weapons, it is difficult to determine what allegations would be made and what defenses would be offered if such circumstances were to arise. However, if a court is ever presented with similar facts, and the party seeking protection under the First Amendment alleges violations of his or her freedom of expression, that court could look to the following cases for guidance.
1) Non-Expressive Conduct-United States v. O'Brien
The leading authority on the issue of whether a court may limit First Amendment freedoms regarding expressive conduct is the U.S. Supreme Court case United States v. O'Brien. [81] David O'Brien was convicted of burning his selective registration certificate in violation of a 1965 amendment to the Selective Service System Act of 1948. [82] O'Brien argued his conduct constituted "symbolic speech" and was therefore protected under the First Amendment. [83] The Court found this argument unconvincing, stating "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."[84] The Court went on to say that should the "alleged communicative element in O'Brien's conduct [be] sufficient to bring into play the First Amendment . . . a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms."[85] [p. 75]
a. The O'Brien TestFor expressive conduct the Court fashioned a test that is followed today:
[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.[86]
The Court upheld O'Brien's conviction, finding the government had a substantial interest in the continuing availability of the Selective Service certificates for the administrative purposes they served in maintaining the Selective Service. [87] Further, the Court stated the governmental interest was unrelated to the suppression of O'Brien's ability to freely express his opposition to the Vietnam War and to the draft.
Further still, the regulation prohibiting the destruction of one's draft card was not regulation based on suppressing the content of free speech. [88] The governmental interest and the operation of the regulation were limited to the nonexpressive aspect of O'Brien's conduct because the government's interest and the operation of the statute were to provide for the "smooth and efficient functioning of the Selective Service System," not to limit expressive conduct. [89] Since the regulation prohibiting destruction of draft cards was not content based, [90] it was not entitled to strict scrutiny analysis by the Court. Instead, the Court created and applied an analysis modernly known as the O'Brien test.
Under the newly developed test, the Court upheld O'Brien's conviction because he had willfully frustrated the government's interest solely through his nonexpressive conduct. [91] [p. 76]
b. The Application of Stockpiling Weapons to the O'Brien Testi) Governmental Interests
In determining whether the stockpiling of arms is expressive conduct for which the First Amendment offers protection, it is important to look at the governmental interests in prohibiting such action. [92]
The government's interest in restricting private militias from stockpiling weapons would primarily be the protection of its citizens from personal injury and property damage in the event of use or implementation of these weapons. The government's concern would be the same in the storage and transport of stockpiled weapons. The cost to taxpayers for rebuilding damaged government structures and infrastructures would also be of significant interest to the government. Finally, the government would have an interest in ensuring the security and well being of its citizens regarding the knowledge of any weapons stockpile.
In O'Brien, the governmental interest in maintaining the Selective Service was not readily apparent. The Court methodically analyzed the importance of the Selective Service registration certificates and their connection to the preservation and maintenance of the Selective Service. [93] It is difficult to find contention in the fact that the interests listed above are important and substantial. Essentially, the government's purpose is to provide for and protect its citizens. The government would be derelict if it failed to regulate the stockpiling of weapons because citizens would be exposed to increased dangers, such as personal injury or property damage if the arsenal exploded or was used in the commission of a crime or in a violent protest. If parties violated statutes prohibiting or restricting the stockpiling of weapons and justified that action under the guise of First Amendment protections, the government's purpose would be frustrated. If a court found the stockpiling of weapons to be expressive conduct, and as such protected under the First Amendment, the governmental interests in implementing regulation of that conduct would be sufficiently important and substantial to justify incidental limitation of that constitutional right.[p. 77]
ii) The Governmental Interests Must be Unrelated to the Suppression of ExpressionAccording to O'Brien, the governmental interest must be unrelated to the suppression of free expression. [94] If stockpiling weapons was considered expressive conduct, one could easily argue that prohibition of such conduct would not hinder or suppress the expression of fear or frustration with the government. Groups could initiate letter writing campaigns to their elected officials, launch boycotts of products and services that would have an economic impact on targeted interests, create marketing plans to educate those most affected, become involved in local government by running for elected office, participate in peaceful demonstrations displaying placards or, at a minimum, complain to neighbors and friends. None of these activities would affect the safety or security of the government's citizens, and would therefore be protected forms of expression under the First Amendment.
The conduct of stockpiling weapons and any prohibition thereof only impacts those governmental interests which are sufficiently important and substantial. By prohibiting or regulating the stockpiling of weapons, the government's interests are positively impacted by protecting its citizens from potential danger. Persons desiring to protest against the government may do so by means which do not threaten the public welfare. Therefore, any regulation restricting the stockpiling of weapons would not be viewed as a regulation attempting to suppress free speech, and any incidental limitation of expression in that regard would be justified based on the important and substantial governmental interests involved.
iii) The Incidental Restriction Must be No Greater Than is Essential
O'Brien further states the incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest. [95] Regulation, restriction or prohibition of stockpiling weapons is a "narrow and precise" means to achieve the substantial governmental interests discussed above. Because stockpiling weapons is so volatile and dangerous, the most appropriate and [p. 78] efficient means to control this practice is through government restriction and regulation. Restriction would include such things as restricting gun types and controlling quantities of guns possessed. Further appropriate measures would include requiring owner registration, the imposition of waiting periods, field inspections and routine monitoring of procedures and policies.
If the government resorted to public service announcements in the hopes private militias would heed them, the escalation of weapons stockpiling could go unchecked. This would constitute underinclusive government action. [96] If the government chose to ban all weapons, the practice of stockpiling weapons would likely move underground and there would be no practical ability to monitor the accumulation of these weapons. [97] This would be overinclusive government action. [98]
Therefore, the restriction and regulation of private militia groups and their weapons is the most narrow and precise means to achieve the government's purpose of protecting its citizens from the potential disasters of stockpiling weapons.
iv) The Regulation Enacted Must be Within the Government's Constitutional PowerThe final element of the O'Brien test is whether a government restriction on stockpiling weapons is sufficiently justified by virtue of the government having the constitutional power to enact it. [99] This element was the threshold question addressed by the O'Brien Court. It is discussed last in this section because the issue will be addressed in the area analyzing the Second Amendment. The constitutional power of the government to limit the regulation or restriction of stockpiling weapons is necessarily a function of how one interprets the Second Amendment and the case law that follows it. [100] [p. 79]
2) Expressive Conduct Meant to Intimidate or Incite Violence-Vietnamese Fishermen's Association v. The Knights of the Ku Klux KlanConduct meant to intimidate or incite violence is also unprotected expressive conduct under the First Amendment. Because stockpiling weapons can be viewed as dangerous conduct, intimidating or capable of inciting violence, a private militia would have to prove otherwise in order to receive protection under the First Amendment.
Vietnamese Fishermen's Association v. The Knights of the Ku Klux Klan illustrates the ability of the government to regulate conduct which may arguably be expressive, but tends to intimidate or incite violence. [101] That case was a class action seeking a permanent injunction against the Knights of the Ku Klux Klan (Klan) and their military arm, the Texas Emergency Reserve (TER). [102] The Vietnamese Fishermen's Association, comprised of Vietnamese immigrant fishermen, who claimed the Klan and the TER had violated their civil rights under federal and state constitutions. [103] These violations stemmed primarily from one incident involving a Klan sponsored "boat ride," but also included ongoing harassment instigated by the Klan and facilitated by the TER as a military training operation for Klan members. [104] The "boat ride" was essentially a parade held on [p. 80] a channel which separated two towns. [105] On the shores of the channel were businesses and docks where the parade was viewed by citizens and other boats in the channel. [106] Prominent on the boat were Klan members and the TER wearing military dress, displaying AR-15s and burning a Vietnamese fisherman in effigy. [107]
a. The "Fighting Words" Doctrine and Vietnamese Fishermen's Association
One issue before the Vietnamese Fishermen's Association court was whether an injunction enjoining military operations of the Klan and the TER would be necessary and appropriate in order to protect the plaintiffs' federal civil rights. [108] The concern was that the TER provided the Klan members with specific training in military tactics meant to intimidate and frighten the Vietnamese immigrants. This precipitated the question of whether the Klan's or the TER's conduct was protected under the First Amendment, as they alleged, and thus considered protected expressive conduct.
The district court had to determine whether the conduct sought to be enjoined was protected by the U.S. Constitution as freedom of speech. The court concluded the defendants' "conduct of military operations involve[d] such grave interferences with the public peace and such minimal elements of communication, that, . . . these activities [are to be viewed] as impermissible 'conduct,' not 'speech."' [109] Since the court determined the activities of the Klan and TER were not speech, their conduct was not protected under the First Amendment. Additionally, the court recognized that even if defendants' conduct was characterized as "speech" or expressive conduct, the First Amendment would not have protected it because conduct meant to intimidate or incite violence does not constitute protected speech or expressive conduct under the First Amendment. [110] [p. 81]
Such conduct falls under the "fighting words" doctrine as first described in Chaplinsky which states:
[T]he right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. . . . [S]uch utterances . . . are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [111]
The Vietnamese Fishermen's Association court found the threat of violence communicated by the defendant's military activities was analogous to the "fighting words" doctrine laid out in Chaplinsky. The court declared the defendants' military activities and conduct associated with the boat ride were "precisely such an irrefutable and dangerous 'communication' that it resemble [d] the use of 'fighting words,' and therefore [was] not protected by the First Amendment." [112]
b. The Application of Stockpiling Weapons to the "Fighting Words" Doctrine
Stockpiling weapons is not speech and not directly considered "fighting words." However, when coupled with the claim that such conduct is expressive and meant to communicate distrust of or disfavor with the government, stockpiling weapons becomes a "dangerous communication" under Vietnamese Fishermen's Association. This communication is meant to incite a breach of the peace because stockpiling weapons, in contravention of the law, is not purely symbolic. Its purpose is most likely to defend against a law enforcement agency or government entity in a feared or expected confrontation [p. 82] ending in violence, injury or possible loss of life. [113] The court in Vietnamese Fishermen's Association found this type of conduct carried with it such a strong threat of violence that it rose to the level of a "dangerous communication." [114] Stockpiling weapons could easily be interpreted to carry a strong threat of violence resulting in a breach of the peace. What is the ultimate purpose of having an arsenal at one's disposal? There is certainly only fear and danger associated with such a collection. [115]
There is no plausible argument proving the contrary. Therefore, under a "fighting words" theory, the stockpiling of arms constitutes a threat to the public welfare through its dangerous communication and would not be protected under the First Amendment.
c. Summary
The court in Vietnamese Fishermen's Association found the government's interests in the safety and well being of its citizens trumps any incidental limitation on a violation of the First Amendment right to free speech. Since stockpiling weapons is inherently dangerous conduct intended to intimidate or incite violence, any communication associated with it becomes unprotected expressive conduct under the First Amendment. Such "dangerous communications" are not protected under the First Amendment.
C) IN CONCLUSION-THE FIRST AMENDMENT
This section demonstrates that government regulation or restriction of stockpiling weapons is not a violation of one's freedom of speech under the First Amendment because the act of stockpiling weapons does not constitute expressive conduct. It is pure conduct; a mere process of collecting arms, which under Spence has no likelihood of conveying a message understood by those who view it. [116] Notwithstanding, in the unlikely event such conduct was considered expressive conduct thereby warranting consideration under [p. 83] the First Amendment, there would still be no violation of one's right to free speech under the First Amendment. O'Brien tells us that any limitation on expressive conduct which allegedly conveys a message may be justified based on substantial and important governmental interests. Regulating the stockpiling of weapons would be justified in order to protect the citizens of this country. Furthermore, the purpose of regulating such conduct is not to suppress free speech, but to regulate a potentially dangerous situation. Private militias would be free to express their dissatisfaction with the government in other ways.
The same analysis is appropriate for the analogy of stockpiling weapons as a dangerous communication. Such conduct could most certainly intimidate or incite violence equivalent to a "fighting words" situation. This determination would provide no protection under the First Amendment because stockpiling weapons could realistically be viewed as a call to "fight" or incite violence, thereby endangering public welfare. This is in direct contravention of the government's interest in keeping citizens safe. Private paramilitary groups might like to refer to the stockpiling of weapons as a call to "defend"or "censure," but such conduct would receive no constitutional protection.
IV. THE SECOND AMENDMENT
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [117]
A) GENERALLY-DOES THE SECOND AMENDMENT GUARANTEE A COLLECTIVE RIGHT OR AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS?
This section demonstrates that the Second Amendment does not restrict the right of the government to enact regulations relating to stockpiling of weapons and therefore, it will not provide protection for private militias which stockpile weapons in contravention of any regulations restricting such activity. If a private militia attempted to shield itself from legal recourse by asserting a violation of its Second Amendment rights, as in the case of the First Amendment, the action would not lie. The right to keep and bear arms, in conjunction with a well regulated Militia, is the thrust of this section. Here, the distinction between the collective right to keep and bear arms for the [p. 84] purpose of maintaining a well regulated Militia and the absolute individual right to keep and bear arms will be made. Because the Second Amendment only prohibits the government from disarming citizens in the capacity of service in the Militia, the point will be made through case law analysis that inferentially the federal government has the power to restrict and regulate the individual's right to keep and bear arms. Consequently, under the same analysis, the government has the same power to restrict and regulate the stockpiling of weapons by private militias.
Initially, the determination of whether the Second Amendment provides protection for stockpiling weapons seems impossible to reach only because interpretation of the Second Amendment is so diverse. Essentially, there are two widely held interpretations. One is that the Second Amendment confers on every person an individual right to keep and bear arms. [118] The second is that the Second Amendment confers a collective right to bear arms in conjunction with a well regulated Militia. [119] A careful study of the case law interpreting the Second Amendment's meaning and purpose makes clear its power, showing the latter interpretation is the appropriate one.
In light of the events mentioned in this Note's introduction, the Second Amendment is one of the most controversial topics of the day. Absent the topical argument, the Second Amendment creates its own dissentious debate. People advocating for and against the right of an individual to keep and bear arms agree the language of the Second Amendment is at least confusing. [120] Some contend the language of the Second Amendment is a reflection of "deliberate vagueness" resulting in the eventual compromise between the different political bodies ratifying the Constitution and the Bill of Rights. [121]
Arguments supporting either the individual right theory or the collective right theory are fiercely maintained. Those who believe the Second Amendment should be interpreted literally conclude the Second Amendment guarantees an absolute individual right to keep [p. 85] and bear arms. [122] These individuals, however, abandon their literal interpretation of the Second Amendment, qualifying the "absolute" right to bear arms by adding only "responsible, law abiding citizens" have a right to "ordinary small arms." [123] This rhetoric begs the questions: Who decides what is responsible conduct?, How are 'ordinary small arms' defined?, and Don't irresponsible persons have a right to self-defense?
On the other side of the debate, the focus is on the second clause of the Second Amendment which states, "the right of the people to keep and bear Arms, shall not be infringed." [124] These "textualists" claim it is the first clause of the Second Amendment that causes problems with interpretation. [125] The logic goes: were it not for the first clause of the Second Amendment, the second clause would easily be interpreted as a personal right, and "definitional determination would be of no unusual difficulty." [126] Proper analysis, however, is not conducted in a vacuum, and whether or not it makes the definitional determination difficult, the first clause of the Second Amendment is subject to interpretation in conjunction with the second clause.
Other interpretations follow a more practical path by synthesizing the two clauses. [127] The resulting synthesis combines the clauses and interpretations by defining the Second Amendment as an individual right to bear arms in order to maintain and preserve a well regulated state Militia. [128]
Those adopting this view believe there is no absolute individual right to keep and bear arms, and in fact, believe gun lobbies have "successfully spun a mythical broad individual right to bear arms for all legal private purposes." [129] In reality, under the Second Amendment there is "no right to bear arms for self-defense, hunting, or shooting competitions." [130] [p. 86]
B) THE PURPOSE OF THE SECOND AMENDMENT
The synthesized interpretation discussed above is nearly identical to the interpretation favored by case law. This includes the finding that the Second Amendment's purpose was to confer an individual right to keep and bear arms within the context of maintaining "a well regulated Militia." [131] This interpretation "inspire[s] a remarkable degree of consensus among federal and state courts." [132] It is a widely held belief that the Second Amendment was intended to maintain an organized state Militia, free from federal disarmament of a state's citizens serving in that capacity. [133]
The history of the Militia involved much debate regarding the federal government's role in the defense of the country. [134] Since that time, courts have consistently held the individual right to bear arms is only a restriction on the federal government to disarm the people while pursuing the maintenance of a well regulated Militia. [135] The proposal that the "right to bear arms" concerned the ability of the states to maintain an effective Militia, "not an individual right to keep weapons for any purpose whatsoever," was consistent with the states' declarations and constitutions of the 1770's. [136] The purposes of the colonial Militia were essentially to act in place of an organized standing army to resist foreign aggression, to serve as an internal police force, and to serve to counteract any federal standing army action against the states. [137] These purposes are no longer satisfied through the maintenance of a citizen Militia. Modernly, these needs are met through better able and better equipped agencies that have evolved over time to deal with these issues. [138] Subsequently, the interpretation that "there is no federal constitutional right for an [p. 87] individual to bear arms" has permeated judges' opinions. [139]
1) United States v. Miller
In 1939, the U.S. Supreme Court addressed the issue of whether the National Firearms Act violated the Second Amendment in United States v. Miller. [140] In that case, Jack Miller and Frank Layton were charged with possessing and transporting over state lines, a 12 gauge shotgun having a barrel less than 18 inches in length without the markings or registration required by the National Firearms Act. [141] The district court sustained the defendants' demurrer, finding the National Firearms Act violated the Second Amendment and quashed the indictment. [142]
The Supreme Court reversed and remanded the case on direct appeal, specifically stating that because there was no evidence a "shotgun having a barrel less than 18 inches in length" had some reasonable relation to the "preservation or efficiency of a well regulated militia," they could not find the Second Amendment guaranteed the right to keep and bear such an instrument. [143] Through an analysis of the history of the Militia and the Second Amendment, the Court reasoned that the Second Amendment must be "interpreted and applied" in light of its purpose. It held that the Second Amendment's purpose confers the right to bear arms in the collective context and the shotgun must be reasonably related to the preservation of a well regulated Militia. [144]
The Court's determination that the shotgun was not reasonably related to the maintenance and preservation of the Militia required finding there was no violation of Miller and Layton's Second Amendment right to keep and bear arms. The Court decided not only that the sawed-off shotgun came under the auspices of the National Firearms Act, but also that the federal government had the power to regulate and restrict a person's individual right to keep and bear arms. [p. 88]
Had the Court decided that the weapon at issue was indeed in the possession of Miller and Layton for the purposes of maintaining the Militia, it would have granted them the individual right to possess such a weapon. Whereby the Second Amendment confers a collective right to keep and bear arms in the context of a well regulated Militia, it inferentially confers or prohibits an individual right to do so.
Accordingly, a person asserting a right to keep and bear arms under the Second Amendment will be limited in that assertion depending on the weapon's intended use.
2) United States v. Hale
Under the Second Amendment, the preservation of the Militia is not to be interpreted only in terms of the weapon's intended use or by the particular type of weapon possessed. In United States v. Hale, Wilbur Hale wrongly inferred from Miller that the purpose of the Second Amendment was to protect individual possession of military type weapons because "by definition" military type weapons would be used in the maintenance of the Militia. [145]
In 1991, Wilbur Hale was arrested after the execution of a warrant by the Bureau of Alcohol, Tobacco and Firearms (ATF). [146] Hale's home was searched and assorted sub-machine guns, automatic weapons, assault rifles, and principle components were confiscated as being in violation of 18 U.S.C. s 922(o) and 26 U.S.C. s 5861(d). [147] Citing Miller, Hale, acting in pro se, claimed the charges against him violated his Second Amendment rights. [148] He argued the federal government was prohibited from regulating weapons "susceptible to military use" because these weapons by their nature were capable of use in the Militia. [149]
The Eighth Circuit upheld his conviction on thirteen counts of possession of machine guns and three counts of possession of unregistered firearms finding Hale's possession of those weapons was [p. 89] "not reasonably related to the preservation of a well regulated militia [and] [t]he allegation by Hale that these weapons [were] susceptible to military use [was] insufficient to establish such a relationship." [150] Specifically, the court said, "Hale wants to find in Miller the rule that individual possession of true military weapons is protected under the Second Amendment." [151] As in Miller, the court analyzed the history of the Second Amendment and its case precedents, quoting Cases v. United States:
[U]nder the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a wellregulated militia.[152]
The Hale court continued, stating because any "lethal weapon" could be used for military purposes, it is "not sufficient to prove that the weapon in question was susceptible to military use." [153] Further evidence must be presented by the person seeking protection under the Second Amendment to prove possession of the weapon has a reasonable relationship to "the preservation or efficiency of a well regulated [M]ilitia." [154] Such evidence might include that the defendant is a "member of a military organization" or is "[preparing] for a military career." [155] The court concluded Hale presented no evidence showing the confiscated weapons had even a "tenuous relationship" to the preservation of a well regulated Militia and it declined to reverse his conviction. [156]
As in Miller, the court decided not to protect Hale's individual right to possession of these weapons under the Second Amendment. This decision was made even though the confiscated weapons were of a military nature and could easily have been used in the maintenance and preservation of the Militia. Had the court decided that the confiscated weapons were in Hale's possession for the purposes of preserving a well regulated Militia, or that he was enrolled in the National Guard or had some other official affiliation with the military, [p. 90] it would not have upheld Hale's conviction. However, because it was not proven that the weapons were for the particular use of preserving the Militia, the Second Amendment did not provide the constitutional protection Hale sought. Consequently, his individual right to keep and bear arms was restricted.
3) United States v. Oakes
Further interpretation of the Second Amendment reveals mere membership in a military-type organization does not qualify to "preserve the effectiveness and assure the continuation of the state [M]ilitia." [157] In United States v. Oaks, Ted E. Oakes was convicted of knowingly possessing an unregistered machine gun under 26 U.S.C. s 5861(d). [158] Oakes sold these guns to an undercover agent for the ATF on seven different occasions. [159]
On appeal, Oakes alleged, among other things, that the prosecution violated his Second Amendment right to keep and bear arms. [160] Oakes argued that pursuant to the Second Amendment he had an "absolute" right to possess these weapons. [161] The Court of Appeals for the Tenth Circuit discounted Oakes' argument, concluding, as in Miller, that "[t]his broad conclusion has long been rejected." [162]
Oakes further alleged that even if the Second Amendment only guarantees a right to bear arms for the purposes of a well regulated Militia, it still applied to him. He argued that as a citizen of Kansas he was technically a member of the state Militia, and therefore he came within the scope of the Second Amendment. [163] He further argued he was also a member of "Posse Comitatus, a military-type organization registered with the state of Kansas." [164] The court similarly disregarded these arguments, affirming his conviction and stating:
To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any [p. 91] connection to the [M]ilitia, merely because he is technically a member of the Kansas [M]ilitia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to the appellant's membership in . . . an apparently nongovernmental organization.[165]
Once more, the power of the government to restrict an individual's right to keep and bear arms has been demonstrated through an application and finding that the Second Amendment only provides a collective right to keep and bear arms for the preservation and maintenance of a well regulated Militia. As in Hale, when Oakes presented no evidence of actual participation in any official capacity relating to the preservation of the Militia, he was left unprotected by the Second Amendment. Even though he proclaimed his "technical" membership in the Kansas Militia and his actual membership in a nongovernmental militia, the court looked to the history and purpose of the Second Amendment, as well as the case law interpreting it, in making its decision. The court's determination that protection under the Second Amendment must accompany actual membership in a government authorized Militia and there must be a distinct relationship between the weapon, its use and the preservation of a well regulated Militia, restricted Oakes individual right to keep and bear arms.
4) SummaryThis analysis of the Second Amendment demonstrates the government's ability to restrict an individual's right to possess weapons when they are not intended to be used in the preservation and efficiency of the Militia. The characteristics of paramilitary groups parallel the factual situations and arguments presented in Miller, Hale, and Oakes.
Under Miller, a private militia would not receive protection under the Second Amendment from stockpiling weapons because a private militia does not further the effectiveness of, nor ensure, the continuation of the state Militia. Its purpose is self-contained in contravention of government actions and policies. Considering historical analysis and case law, it has long been acknowledged that the purpose of the Second Amendment is to guarantee a collective right to keep and bear arms only in the context of preserving a well regulated Militia. [p. 92]
Stockpiling weapons would also not be protected under the Second Amendment allegation that the weapons stockpiled are meant for a military purpose. As discussed in Hale, the particular type of weapon, if not proven to be reasonably related to the preservation of a well regulated Militia, will not receive Second Amendment protection. Therefore a stockpile of weapons, without more, would likewise not ensure the effectiveness or continuance of the Militia simply because the weapons were military in nature. This would be especially true taking into account the fact that a private militia is not a governmentally authorized organization and inherently unable to claim recognition under the Second Amendment. [166]
Finally, simply characterizing itself as a military organization will not provide Second Amendment protection for a private militia from prosecution for stockpiling weapons. The court in Oakes found no justification in "logic or policy" that mere membership in military-type organization would allow protection under the Second Amendment for such conduct. [167] The Militia constitutionally sanctioned to bear arms is our modern day National Guard. [168] Because private militias operate without authority from the Constitution, they do not reap the benefit of its protection. [169]
C) IN CONCLUSION-THE SECOND AMENDMENT
The Second Amendment was part of a compromise between the Federalists and the Antifederalists to provide the states with a mechanism to protect themselves from a possible standing army raised in accordance with the Militia Clauses in the U.S. Constitution. [170] It did not, and does not today, condone an individual's right to possess weapons absent their use in the preservation of a well regulated Militia. Furthermore, the Second Amendment did not allow for weapons possession by persons with technical membership in state [p. 93] Militias or by members of unauthorized, non-governmental military organizations. [171]
V. CONCLUSIONThis discussion has demonstrated very few limits on the government's power to regulate one's ability to keep and bear arms. [172] The First Amendment does not protect nonexpressive conduct or conduct that is likely to intimidate or incite violence. If conduct qualifies as an expression, the limitations placed on the ability to freely express that communication are incidental to the government's important and substantial interest in the safety and security of its citizens. [173] Stockpiling of weapons by private militias is conduct that impacts important and substantial governmental interests. Any prohibition or restriction of such activity is merely incidental, and the First Amendment will provide no protection. Should private militias claim their politics or ideology are infringed, courts will not allow them to "transgress the law" under the guise of First Amendment protection. [174]
It has also been demonstrated that private militias may not successfully seek redress for stockpiling weapons under the Second Amendment. Case law and scholarly opinions agree the Second Amendment guarantees a collective right to keep and bear arms if there is a reasonable relationship to maintaining a well regulated Militia. A reasonable relationship to the maintenance of a Militia cannot be proven by the type of weapons possessed, their possible military nature or supposed membership in a military organization. Judicial opinions are typical of the following:
Since, the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or [p. 94] membership in a nongovernmental military organization is not sufficient to satisfy the "reasonable relationship" test. . . . Membership in a hypothetical or "sedentary" militia is likewise insufficient.[175]
Notwithstanding the fact the Constitution provides no explicit individual right to possess weapons, states do restrict and regulate weapon possession through statutory law and the police power. Even so, it is recognized that the Second Amendment has no ability to "invalidate" any law "restricting or regulating any aspect of private use, purchase or possession of firearms." [176] Therefore, the assumption is made that private militias operating outside the sanction of government authorization will be regulated or restricted from stockpiling weapons by statutes currently in place or enacted in the future. Should they seek protection from the Constitution under the First or Second Amendment, they will not be successful. [177]
In closing, mention should be made of the tension that underlies this controversy: the infringement of the personal freedom to stockpile weapons and the perceived oppressive regulation of that practice. It is said that the Americans for Civil Liberties Union (ACLU) "takes the position that the Second Amendment protects only the state's right to an organized military--a well regulated [M]ilitia. It rejects any suggestion that the Second Amendment protects an individual right [to keep and bear arms]." [178] This may seem strange commentary for an organization that is known for its defense of "individual rights against an encroaching government." [179] However, it may simply be that the ACLU recognizes there are some things more important than legal rhetoric and debate over who has the right to arm themselves and how. The conflict between personal liberties and the fear of an oppressive government is tempered in the knowledge that "oppression" and "liberty" are not all things to all people.
The primary concern should be for the safety and security of the citizens of this country. There must be a balance. If sides have to be taken, it is better to err on the side of preservation of life and the prevention of injury. George [p. 95] Washington may have said it best:
Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. . . . It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be preserved . . . . [180]
* B.A., University of California, San Diego; candidate for J.D., Thomas Jefferson School of Law, San Diego, California, May 1996. The author wishes to acknowledge her husband, Kevin, with deepest love and gratitude for the sacrifices he makes on her behalf, gracious thanks to her family for their continuing support, and NNK for her advice and counsel.
1. Kim Murphy, Both Sides Still Wrestling With Horrors of Ruby Ridge Idaho: Some fear shootout anniversary may spark new violence. Many in Militia movement see call to arms, L.A. Times, Aug. 20, 1995, at A1. On August 21, 1992, United States Marshals surrounded the property of Randy Weaver in the Ruby Ridge Mountains in Idaho. The agents were there because Weaver failed to appear in court regarding criminal charges filed against him alleging he sold two illegal sawed-off shotguns to an undercover agent for the Bureau of Alcohol, Tobacco, and Firearms (ATF). The incident ended in violence and the deaths of Weaver's wife and son and one marshal. Randy E. Barnett, Forward: Guns, Militias, and Oklahoma City, 62 Tenn. L. Rev. 443, 454 (1995).
2. Josh Meyer et al., Militia Members' Threats, Attacks on Officials Escalate Violence: Authorities confirm at least a dozen incidents with members of militant groups since last September. Alerts were issued in Central and Western States, L.A. Times, Apr. 27, 1995, at A1. The Branch Davidian Compound in Waco, Texas, consisted of approximately 100 members of a religious community including men, women and children. Agents for the ATF converged on the compound, en mass, to serve an arrest and search warrant for alleged weapons violations. A shoot out ensued when the ATF attempted to serve the warrant which resulted in a 51 day stand-off. The stand-off ended when the ATF agents attacked the compound with tear gas, which allegedly caused an explosion and the deaths of nearly all the Branch Davidians. Barnett, supra note 1, at 455.
3. Meyer et al., supra note 2.
4. 3 More Bodies Found in Oklahoma Rubble, Boston Globe, May 30, 1995, s 3, at 3.
5. Immediately after the Oklahoma bombing many private militia leaders denounced the bombing and the allegations that the perpetrators were connected with the militia movement. See generally Christopher Sullivan, Hate Group Extremists Eyed in Deadly Bombing, The Associated Press, Apr. 21, 1995, available in WESTLAW, 1995 WL 4384615, ASSOCPR.
6. See generally David Foster & Arlene Levinson, Beyond the Bombing: Militias, Government, and the Politics of Frustration, The Associated Press, May 18, 1995, available in WESTLAW, 1995 WL 4388808, ASSOCPR (discussing politics and the militia movement).
7. Id. at *5 (quoting Seymour M. Lipset, a political sociologist at George Mason University in Fairfax, Va.).
8. Meyer et al., supra note 2, at A13. Although California authorities have not experienced the armed confrontations reported by other states, they acknowledge a "potentially alarming rise in militia activity ...." Id.
9. Foster & Levinson, supra note 6, at *13.
10. Id. at *3. Some report the 100,000 members come from 30 states. Meyer et al., supra note 2, at A13.
11. Foster & Levinson, supra note 6, at *14.
12. See generally Judy L. Thomas, Private Militias Thrust in Spotlight, The Wichita Eagle, Apr. 25, 1995, at 1A. Some of these radicals include the national leader of the U.S. Militia Association, Samuel Sherwood; white supremacist, Robert Jay Mathews; founder of Militia of Montana, John Trochman; leader of the Aryan Nations, Louis Beam; self-proclaimed white separatist, Kirk Lyons; and Executive Director of Gun Owner's of America, Larry Pratt. See also Foster & Levinson, supra note 6; Leonard Zeskind, Armed and Dangerous: The NRA, Militias, and White Supremacists are Fostering a Network of Right Wing Warriors, Rolling Stone, Nov. 2, 1995, at 55-57.
13. Meyer et al., supra note 2, at A1, A13. Officials concerned with the increased militia activity have also stopped performing essential duties of their jobs. One example in particular was shortening the length of an investigation, by wildlife investigators, into the killing of a gray wolf on an Idaho ranch due to fear of an armed confrontation. Id. at A13.
14. Id.
15. Foster & Levinson, supra note 6, at *7.
16. Id. at *6-7.
17. Nina J. Easton, America the Enemy: Their politics are light years apart, but the bombers of the 60's and 90's share volatile rhetoric, tangled paranoia and a belief that violence is a legitimate weapon, L.A. Times, June 18, 1995 (Magazine), at 8, 28 (quoting Richard Flacks, Professor of Sociology at the University of California at Santa Barbara).
18. Josh Meyer & Paul Feldman, Move to Curb Explosives Taking on a New Urgency, L.A. Times, May 6, 1995, at A1, A17. Authorities reported 816 bombing incidents nationwide in 1987. In 1993, 1,880 bombings were reported. As reported by the ATF, the most common and most destructive type of bomb was the pipe bomb, which was used most frequently for purposes of vandalism and protests. The authors also discuss California's status as leader in the number of reported bombings. In California there were 1,559 bombings during a five-year period ending in 1993. The closest state behind California was Florida with 822 bombings during that same time period. Id. at A17.
19. Id. Bomb making materials are widely available in common substances such as fertilizer and fuel oil. Instructions on how to build a bomb can be found in one of several hundred books unregulated by the federal government. Further, the lack of national safety requirements to regulate explosives at construction sites, and the availability of explosives on military bases, give would-be-bombers increased opportunity to needed supplies for making bombs. Id. at A1, A17.
20. Thomas, supra note 12.
21. Easton, supra note 17, at 10.
22. Murphy, supra note 1, at A20.
23. Zeskind, supra note 12, at 86.
24. Easton, supra note 17, at 9.
25. In particular, private militia members use the issue of gun control as their catalyst for asserting this right. Zeskind, supra note 12, at 57.
26. Id. at 55 (quoting Larry Pratt, Executive Director of Gun Owners of America).
27. Id. at 57.
28. Easton, supra note 17, at 28.
29. Id. at 9 (quoting Allen J. Matusow, Dean of Humanities at Rice University).
30. Thomas, supra note 12.
31. Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev. 57, 58 (1995).
32. The term "gun disobedience" is described as "the far-right alternative to non-violent disobedience practiced by the civil-rights movement 30 years ago." Zeskind, supra note 12, at 57. One aspect of the debate not discussed here, but imperative to mention, is the inaction of the government in eliminating the ability of these groups to stockpile weapons. These groups masquerade under the auspices of private militias and survivalist training groups. Meyer et al., supra note 2, at A13. They have been allowed to operate freely, promoting among their ranks fear and hatred for the government, minorities, and those with ideologies unlike their own narrow beliefs. This is evidenced in the proliferation and tolerance of the Klu Klux Klan which has menaced society for over 100 years. See David V. Stivison, Democracy and Terrorism, 67 N.Y. St. B.J. 8 (1995). The government inaction may be evidence of the eternal conflict between the promotion of personal liberties at any cost and the denial of personal liberties to accomplish a greater purpose. Another consideration is the connection of the private militias and right wing political figures whose views are evidenced by their support of like minded groups such as National Rifle Association, the Christian Coalition, and Operation Rescue. See generally Zeskind, supra note 12 (detailing the interface between private militias and these groups). Larry Pratt, Executive Director of Gun Owners of America, and until recently aide to presidential candidate, Pat Buchanan, was suspended from the 1996 presidential campaign because of his ties with racists and armed militias. John M. Broder, Buchanan Aide Suspended Over Hate Group Ties, L.A. Times, Feb. 16, 1996, at A1. Pratt is also a member of the Counsel for National Policy, an organization that makes policy for the far right. Paul Weyrich, ultraconservative and first President of the Heritage Foundation, which provides policy proposals to "a generation of Gingrich republicans," has provided guidance to the Council for National Policy. Also linked with the Council for National Policy are influential political figures such as Reagan Attorney General Edwin Meese, Congressional Representative Helen Chenowith, Congressional Representative Steve Stockman, and House Majority Leader Richard Armey. Zeskind, supra note 12, at 60, 86.
33. Throughout this Note references made to "Militia" constitute the traditional, colonial militia and its successor the National Guard; both entities sanctioned by state and federal governments. References made to "private militia" constitute the modern concept of a military organization that operates without government authority.
34. U.S. Const. art. I, s 8, cl. 15, 16.
35. James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, 950-51 (1992) (quoting Etymological Dictionary of the English Language 368 (Walter W. Skeat ed., 1888); New English Dictionary of Historical Principles 439 (1980)).
36. Id. (quoting Assize of Arms of 1181, in A Constitutional and Legal History of Medieval England 273 (Bryce Lyon ed., 2d ed. 1980)).
37. Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 14 (1989).
38. Ann-Marie White, Comment, A New Trend in Gun Control: Criminal Liability for the Negligent Storage of Firearms, 30 Hous. L. Rev. 1389, 1393 (1993).
39. Id. (citing Burton v. Sills, 248 A.2d 521, 526 (N.J. 1968)); Ehrman & Henigan, supra note 37, at 15.
40. Ehrman & Henigan, supra note 37, at 14-15.
41. United States v. Miller, 307 U.S. 174, 179 (1939) (quoting Adam Smith, Wealth of Nations, Book V, Ch. 1 (1776)).
42. David E. Vandercoy, The History of the Second Amendment, 28 Val. U. L. Rev. 1007, 1038 (1994).
43. Id.
44. Id. at 1026.
45. Id. at 1022-23 ; U.S. Const. art. I, s 8, cl. 12.
46. Vandercoy, supra note 42, at 1024.
47. Chuck Dougherty, Note, The Minutemen, The National Guard and the Private Militia Movement: Will the Real Militia Please Stand Up?, 28 J. Marshall L. Rev. 959, 964 (1995).
48. Vandercoy, supra note 42, at 1023.
49. U.S. Const. amend . II.
50. Dougherty, supra note 47, at 968.
51. U.S. Const. art. I, s 8, cl . 15.
52. Dougherty, supra note 47, at 969.
53. Whisker, supra note 35, at 987.
54. Id. at 986.
55. Id. at 987. Today, this nation's armed military forces maintain the position as the premier defensive forces.
56. See generally Id. (detailing a complete history of the militia in the United States from the English tradition to the modern day National Guard).
57. Id. at 987.
58. Cal. Penal Code s 11460 (West 1996).
59. Dougherty, supra note 47, at 965.
60. Whisker, supra note 35, at 963-70.
61. Sullivan, supra note 5, at *6.
62. See Id.
63. Cal. Penal Code s 11460. The author of this Note mentions that the original Militia has virtually no relationship to the private militias of today. The purpose behind the Militia during colonial times has long been supplanted by the United States Armed Forces and local law enforcement agencies. Some private militia groups seek to identify with the colonial Militia in an effort to further assert their belief in an absolute, individual right to keep and bear arms. The fear of standing armies and a strong centralized government is no longer applicable in today's world. That being the premise and desire for a citizen Militia in colonial times, makes its relevance inapplicable to private militias of today. See generally Dougherty, supra note 47 (discussing the evolution of the National Guard and its modern day purposes).
64. Whisker, supra note 35, at 963-70 (beginning with the Militia Act of 1792, to the Army Reorganization Act of 1901, to Dick Act of 1903, to the National Defense Act of 1916, and finally to the National Defense Act Amendment of 1933, the government has controlled the role of the militia).
65. See generally Foster & Levinson, supra note 6; Meyer et al., supra note 2; Sullivan, supra note 5 (describing the militia movement, its activities and members).
66. Id.
67. Insurrection is defined as "[a] rebellion, or rising of citizens or subjects in resistance to their government. ...consists in any combined resistance to the lawful authority of the state, with the intent to cause the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence." Black's Law Dictionary 558 (6th ed. 1991).
68. See supra note 65 and accompanying text.
69. See generally Zeskind, supra note 12, at 55-57 (evidencing opposition to the government, and advocating racism and the use of violence).
70. U.S. Const. art. I, s 8, cl. 15.
71. Id.
72. Id. amend. I.
73. There are, conceivably, other arguments private militias may make in defense of stockpiling weapons under the First Amendment, such as the freedom to associate, freedom to assemble and freedom to petition the government for redress of grievances. The courts have struck down these arguments stating the intent of those freedoms are so narrow that situations involving private militias and gun control do not apply. In Presser v. Illinois, the Court said: [T]he right peaceably to assemble was not protected...unless the purpose of the assembly was to petition the government for a redress of grievances. The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. ... 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. Presser v. Illinois, 116 U.S. 252, 267 (1886).
74. U.S. Const. amend. I.
75. Conduct considered expressive and therefore protected under the First Amendment includes flag burning (Texas v. Johnson, 491 U.S. 397 (1989)), wearing black arm bands (Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969)) and saluting a flag (West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, (1943)).
76. Spence v. Washington, 418 U.S. 405, 411 (1974).
77. United States v. O'Brien, 391 U.S. 367 (1968).
78. Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 208 (S.D. Tex. 1982).
79. Id. The "fighting words" doctrine arises where some words "by their very utterance inflict injury or tend to incite an immediate breach of the peace." Such use of words is unprotected by the First Amendment because they are of "such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
80. Vietnamese Fishermen's Ass'n, 543 F. Supp. at 208.
81. O'Brien, 391 U.S. at 367.
82. Id. at 369-71.
83. Id. at 376.
84. Id.
85. Id.
86. Id. at 377.
87. Id. at 379-80.
88. Id. at 375-76.
89. Id. at 381.
90. A regulation is "content based" if the aim of the regulation is to limit the content of speech, or somehow censor the message.
91. O'Brien, 391 U.S. at 381-82.
92. Id. at 377.
93. Id. at 377-80.
94. Id. at 377.
95. Id.
96. "Underinclusive" means the regulation failed to fully address the underlying issues prompting the enactment of such legislation.
97. Assuming stockpiling of weapons is normally done in contravention of any regulation or prohibition, the purpose of such statutes is to prosecute discovered offenders and to dissuade potential offenders.
98. "Overinclusive" means the regulation has exceeded the scope of issues prompting the enactment of such legislation.
99. O'Brien, 391 U.S. at 376.
100. Stockpiling weapons may be regulated under other provisions of the Constitution, such as the Commerce Clause. That discussion, however, is not within the scope of this Note.
101. Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982). This case was never tested on appeal, and there is some question as to whether it would have survived appellate review. However, the factual situation is analogous to the issue presented here in that the display of weapons on the boat ride is similar to a "display" of weapons stockpiled by a private militia. The effect of the two is the same: they both instill fear and intimidation, and are potentially dangerous.
102. Id. at 201-02. Prior to that action there was a hearing requesting declaratory and injunctive relief from interference by defendants with the plaintiffs' fishing businesses. The interference included episodes of intimidating statements made to the Vietnamese, burning a shrimp boat and cross at a rally, taking boat rides while wearing robes and displaying cannons, burning boats belonging to Vietnamese fishermen and pointing guns at the plaintiff class and their families. That court granted the injunction, holding: [T]here is an existence of a substantial threat that the plaintiff class will suffer an irreparable injury, if the injunction is not granted. ... [T]he very ability of the plaintiff class to earn a living is being severely jeopardized.... [I]t is [clearly with]in the public interest to enjoin self help tactics of threats of violence and intimidation and permit individuals to pursue their chosen occupation free of racial animus. Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 518 F. Supp. 993, 1016-17 (S.D. Tex. 1981).
103. Vietnamese Fishermen's Ass'n, 543 F. Supp. at 201.
104. Id. at 206.
105. Id. at 206-07.
106. Id.
107. Id.
108. Id. at 207.
109. Id. at 208 (discussing United States v. O'Brien, 391 U.S. 367, 376 (1968)). The court also discussed Spence v. Washington, 418 U.S. 405, 411 (1974), stating that the evidence put forth at the preliminary injunction regarding the TER's "public show of force" was not "speech" within the meaning of Spence. Vietnamese Fishermen's Ass'n, 543 F. Supp. at 208.
110. Id.
111. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). Chaplinsky was convicted in municipal court of violating an ordinance which prohibited the making of "offensive, derisive or annoying" remarks about another in a public place with the intent to "deride, offend or annoy." Id. at 569. Chaplinsky challenged the ordinance arguing, among other things, that it violated his Fourteenth Amendment rights to free speech (Chaplinsky was asserting his First Amendment rights through the Fourteenth Amendment). The case came before the Supreme Court which decided that the words uttered by Chaplinsky, "damn racketeer" and "damn fascist," were "epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Id. at 574.
112. Vietnamese Fishermen's Ass'n, 543 F. Supp. at 208.
113. See supra notes 14-29 and accompanying text.
114. Vietnamese Fishermen's Ass'n, 543 F. Supp. at 208.
115. The author recognizes there are those who may legitimately collect guns for historical purposes, pleasure or sentiment. Those gun collections do not carry the same threat of danger as that mentioned here unless the collections are operational and accessible to people who may use them inappropriately.
116. See supra note 76 and accompanying text.
117. U.S. Const. amend. II
118. White, supra note 38, at 1396.
119. Id.
120. William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994).
121. Stephanie A. Levin, Grassroots Voices: Local Action and National Military Policy, 40 Buff. L. Rev. 321, 336 (1992). See also supra notes 37- 51 and accompanying text.
122. Don B. Kates, Jr., Gun Control: Separating Reality from Symbolism, 20 J. Contemp. L. 353, 363 (1994).
123. Id. at 364.
124. U.S. Const. amend. II.
125. Id. The first clause states, "[a] well regulated Militia, being necessary to the security of a free State, ...."
126. Van Alstyne, supra note 120, at 1237-38.
127. Levin, supra note 121, at 346-47.
128. Id.
129. Herz, supra note 31, at 58.
130. Id.
131. Id. at 61-62.
132. Ehrman & Henigan, supra note 37, at 40.
133. White, supra note 38, at 1396.
134. See supra notes 37-51 and accompanying text.
135. United States v. Miller, 307 U.S. 174, 178 (1939); Presser v. Illinois, 116 U.S. 252, 265 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1875); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992), reh'g denied,(1992), and cert. denied, 507 U.S. 997 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); Cases v. United States, 131 F.2d 916, 920 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).
136. Ehrman & Henigan, supra note 37, at 30 .
137. Dougherty, supra note 47, at 965.
138. Id. at 961-62.
139. White, supra note 38, at 1397-98 (quoting Miller, 307 U.S. at 174; citing Miller v. Texas, 153 U.S. 535 (1894); Presser, 116 U.S. at 252; Cruikshank, 92 U.S. at 542).
140. Miller, 307 U.S. at 174. The National Firearms Act was enacted in 1934 in response to the increase in gangster activity during prohibition and the subsequent rise in use of machine guns and sawed-off shotguns. See Dougherty, supra note 47, at 972; The National Firearms Act, ch. 757, 48 Stat. 1236 (1934).
141. Miller, 307 U.S. at 175.
142. Id. at 177.
143. Id. at 178.
144. Id.
145. United States v. Hale, 978 F.2d 1016, 1018 (8th Cir. 1992), reh'g denied, (1992), and cert. denied, 507 U.S. 997 (1993).
146. Id. at 1017.
147. Id. Section 922(o) regulates the possession of machine guns. 18 U.S.C. s 922(o) (1992). Section 5861(d) is violated if anyone receives or possess a firearm which is not registered to him in the National Firearm Registration and Transfer Record. 26 U.S.C. s 5861(d) (1988).
148. Hale, 978 F.2d at 1018.
149. Id.
150. Id. at 1020.
151. Id. at 1019.
152. Id. at 1019-20 (quoting Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943)).
153. Id. at 1020 (quoting Cases, 131 F.2d at 922).
154. Id.
155. Id.
156. Id.
157. United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (citing United States v. Miller, 307 U.S. 174, 178 (1939)).
158. Id. at 386.
159. Id.
160. Id. at 387.
161. Id.
162. Id.
163. Id.
164. Id.
165. Id. (emphasis added).
166. If an authorized organization meeting the definition of "Militia" under the Second Amendment were to stockpile weapons, the threats posed by the same conduct undertaken by an unauthorized militia would be obviated. It is certain that the National Guard has arsenals and armories all over the country for purposes of carrying out its obligations to the United States. The threat imposed by stockpiling weapons is inherent in the individuals sustaining such an arsenal and necessarily their plans for the weapons.
167. Oakes, 564 F.2d at 387.
168. See supra notes 52-58 and accompanying text.
169. See generally Oakes, 564 F.2d at 387 (proposing membership in a private militia will not secure Second Amendment protection for possession of illegal weapons).
170. See supra notes 37-51 and accompanying text.
171. This conclusion is issue and fact specific because although the Constitution makes no explicit individual right to possess weapons, anything not explicit in the Constitution is relegated to the states. In almost every state there is some form of gun regulation and restriction allowing for individual gun possession. Through state statute and the police power, states have the power to restrict and regulate gun possession. However, the discussion of such is beyond the scope of this Note.
172. White, supra note 38, at 1429.
173. United States v. O'Brien, 391 U.S. 367 (1968).
174. Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 210 (S.D. Tex. 1982).
175. United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992) (citation omitted) (quoting United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977)), reh'g denied, (1992), and cert. denied, 507 U.S. 997 (1993); see also United States v. Warin, 530 F.2d 103 (6th Cir. 1976), and cert. denied, 426 U.S. 948 (1976).
176. Herz, supra note 31, at 81.
177. This is evidenced in the holdings of the cases analyzed in this Note.
178. Vandercoy, supra note 42, at 1008.
179. Id.
180. Id. at 1008-09 (quoting Letter from George Washington to the President of Congress (Sept. 17, 1787), in 1 Documentary History of the Ratification of the Constitution 305 (John P. Kaminski et al. eds., 1983)).