Gonzaga Law Review
32 (1996 / 1997): 523.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

AN OUNCE OF PREVENTION: THE CONSTITUTIONALITY OF STATE ANTI-MILITIA LAWS
Ellen M. Bowden *
Morris S. Dees **

Copyright © 1997 Gonzaga Law Review Association, Ellen M. Bowden & Morris S. Dees

Table of Contents

I.    Introduction ....................................... 523

II.   Freedom of Expression ....................... 527

III.  Freedom of Association ...................... 530

IV.   Vagueness ......................................... 531

V.    Proposed Model Anti-Militia Statute .. 534

VI.   Conclusion ......................................... 535

I. Introduction

The 1990s have seen an explosion of militia groups. [1] Although some militias may resemble paper tigers, [2] others pose serious threats to public safety [Page 524] with their military-style organizations, [3] large caches of weapons, [4] military training, [5] and intense hatred of the government. [6] Timothy McVeigh attended several militia meetings before he bombed the Oklahoma City federal building out of anger at the federal government over its handling of the Waco crisis. [7] Worsening the situation, many militia groups also have ties to white supremacists. [8] [Page 525]

As militia activity and the dangers associated with it have grown, the response by law enforcement has been limited. Federal authorities have indicted militia members for crimes ranging from bombings and bomb plots to possession of bombs and unlicensed automatic weapons. [9] Nonetheless, states have made no efforts to use one of the most potent tools against militias at their disposal: state laws outlawing unauthorized military organizations. [10] As a result, the vast majority of militias continue to operate unchecked. [11]

Today, twenty-four states have anti-militia laws. [12] Alabama's statute is typical. It provides:

Unauthorized military congregation.

Any two or more persons, whether with or without uniform, who associate, assemble or congregate together by or under any name in a military capacity for the purpose of drilling, parading or marching at any time or place or otherwise take up or bear arms in any such capacity without authority of the governor, must, on conviction, be fined not more than $1,000.00. This section does not apply to any school or college where military training and instruction is given under the provisions of state or federal laws, nor to the order of Knights of Templar, Knights of Pythias, Patriarchs Militant or Uniform Rank of Woodmen of the World. [13]

Twenty-four states, including seven with anti-militia laws, have another type [Page 526] of statute prohibiting training with firearms or other destructive devices while knowing or having reason to know that such techniques will be used to further a civil disorder. [14] These anti-paramilitary training laws present an additional hurdle in obtaining a conviction that anti- militia statutes do not: proof that defendants knew or intended that their paramilitary training would further civil disorder. [15]

State attorneys general have frequently tried to justify their failure to enforce anti-militia laws by maintaining that the laws are unconstitutional. [16] They do not usually base their arguments on the Second Amendment [17] because the Supreme Court upheld an Illinois statute under that provision in Presser v. Illinois. [18] Notwithstanding Presser, legal commentators have occasionally joined the fray, arguing that anti-militia laws violate the First Amendment freedoms of speech and association [19] or are void for vagueness. [20]

To avoid these problems, the Anti-Defamation League of B'nai B'rith [Page 527] ("ADL") has sponsored a model anti-paramilitary training law. [21] While the "imminent civil disorder" component of the ADL's anti-paramilitary training law provides a safe constitutional harbor, [22] it severely curtails the circumstances under which the law can be enforced. [23] In some cases where the conduct is considered sufficiently severe to be punishable under anti-paramilitary laws, it may be illegal under other state statutes as well. [24] In short, the reach of anti-paramilitary statutes is not only narrow, but it may also be redundant.

This article examines anti-militia statutes and concludes that they are constitutional. Part II examines the laws' constitutionality under the First Amendment's free speech guarantee, and Part III considers their impact on the First Amendment's right to freedom of association. Part IV discusses whether the laws are void for vagueness. Finally, Part V sets forth a model anti- militia statute.

II. Freedom of Expression

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." [25] Where expressive conduct is at stake, courts must determine whether laws regulating the conduct are "related to the suppression of free expression." [26] If they are not, courts apply the less stringent standard articulated in United States v. O'Brien. [27] This test provides:

[A] government regulation [affecting both speech and conduct] is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important governmental interest; if the governmental interest is unrelated to [Page 528] 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. [28]

On their face, anti-militia statutes proscribe only conduct. [29] Specifically, they forbid persons from gathering as an unauthorized military organization. [30] They do not prohibit speech by members of such organizations. [31] A federal district court, in Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, agreed, viewing military operations as "'conduct' not 'speech."' [32] This has been the only case concerning a First Amendment challenge to an anti-militia law.

To determine whether the more lenient O'Brien test applies, courts must analyze whether anti-militia laws are aimed at suppressing the militia's message. The laws' clear purpose is protecting public safety, not preventing anti-government groups from communicating their views. [33] As the court in Vietnamese Fishermen's recognized, the state's interest is unrelated to suppressing free expression. [34] Even if all members of unauthorized military groups hold the same political views, that "does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated [the laws]." [35] The O'Brien test, therefore, applies. [Page 529]

States have both ample power to regulate private armies and important reasons for doing so under the first two O'Brien requirements. As the Supreme Court explained in Presser v. Illinois,

[i]t cannot be successfully questioned that the state governments . . . have . . . the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety and good order. [36]

Anti-militia laws further satisfy the third O'Brien requirement because the state's interest in protecting public safety is unrelated to suppressing free expression.

The fourth O'Brien requirement, that the state's restrictions be no greater than necessary to advance the state's interest, poses the thorniest issues in free expression analysis. Anti-militia laws are prophylactic measures designed to prevent violence. By definition, they do not depend upon a showing of independent illegal acts or imminent violence. [37] The question then becomes whether a prophylactic measure to prevent violence can ever be narrowly tailored. Because the laws necessarily cast a wide net to prevent harm from occurring in just a few instances, the answer initially appears to be no.

But in this case, states have no alternative. There is simply no practical way for law enforcement officials to predict which unauthorized military organizations will turn violent and which will not. From an outsider's point of view, people practicing with weapons in the woods to defend against what they believe will be an imminent attack by black United Nations' helicopters [38] look no different from people detonating practice bombs in preparation for blowing up a federal building. [39] Those engaged in paramilitary training with an evil design in mind will hardly admit to it. [40] Meanwhile, the costs of making a mistake and not stopping a militia before it commits violence are enormous. [Page 530]

Members of the West Virginia Volunteer Militia, for example, were recently indicted for conspiring to bomb the Federal Bureau of Investigation's fingerprinting complex. [41]

These difficulties, combined with the fact that militia members "remain free to express their views by means other than the threat of military force," [42] make the laws' restrictions no greater than necessary to further the government's interest. For these reasons, courts should hold that anti-militia laws pass the O'Brien test and do not infringe on the militias' right to free expression.

III. Freedom of Association

The right to freedom of association is grounded in the First Amendment freedoms of "speech, assembly, and petition." [43] It protects "the right of individuals to combine with other persons in pursuit of a common goal by lawful means." [44] Laws that infringe on the right to political association must serve a compelling state interest to survive strict scrutiny analysis. [45]

By forbidding people from associating as an unauthorized military organization, anti-militia laws obviously affect the right to political association. But states have a compelling reason for doing so: protecting public safety. [46] As with freedom of expression, the laws are narrowly tailored to advance this interest because an outright ban on militias is the only way to prevent the militias that are preparing to commit violence from actually doing so. [47]

The effect on the right to free association, moreover, is quite marginal. The laws "in no way hinder[ ] [militia members] from meeting together as a group." [48] Indeed, people remain free to meet to discuss their views in public or in private as long as they are not assembling as an unauthorized military organization. This freedom ensures that militia members' right to associate with one another remains adequately protected.

While the Supreme Court has never addressed a freedom of association claim against an anti-militia statute, it briefly touched on a freedom of assembly claim in Presser:

The only clause in the constitution which, upon any pretense, could be said to have any relation whatever to [the] right to associate with others as a military [Page 531] company, is found in the first amendment, which declares that "congress shall make no laws . . . abridging . . . the right of the people peaceably to assemble and to petition the government for a redress of grievances." This is a right which it was held in United States. v. Cruikshank, . . . was an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. But it was held in the same case that the right peaceably to assemble was not protected by the clause referred to, 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 citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. [49]

Though the Presser analysis of free assembly does not resolve the free association issue, [50] it does give some indication of the legal status of the claim. Not only did the Supreme Court emphasize the state's need to have control over military organization and drill, [51] it soundly rejected the more specific Second Amendment challenge to anti-militia laws. [52] This rejection makes it quite unlikely that the laws would be found unconstitutional on the more general ground of free association. [53]

IV. Vagueness

Under the Due Process Clause of the Fourteenth Amendment, laws are void for vagueness if their "prohibitions are not clearly defined." [54] Two basic tests determine whether statutes fall into this category. First, laws must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." [55] Second, laws must contain explicit [Page 532] standards to prevent their "arbitrary and discriminatory enforcement." [56] In applying these rules, courts also consider whether a statute contains an intent requirement--a stipulation that people knowingly or intentionally violate the law--because such provisions mitigate a statute's vagueness. [57] A "more stringent vagueness test" applies when laws inhibit First Amendment rights. [58]

These rules do not translate into a requirement of "perfect clarity and precise guidance." [59] Laws must be impermissibly vague in all their applications to be defeated in a facial challenge. [60] There is also a strong presumption of a statute's validity. [61]

No court has yet considered a vagueness attack on an anti-militia law. The only analyst to address the issue argued that the laws are impermissibly vague, maintaining that the lack of a definition of "military organization" leaves government officials free to interpret the term broadly, without giving notice to potential violators that their conduct is prohibited. [62] The ADL also expressed qualms about pinpointing the term's meaning. [63] When closely examined, however, these statutes are specific enough to survive constitutional scrutiny.

Applying the first vagueness requirement, anti-militia laws reasonably inform the average person that his or her conduct is prohibited. [64] Though the laws never explicitly define an "unauthorized military organization," they do so in an implicit way by describing the prohibited conduct as "[a]ny two or more persons . . . associat[ing], assembl[ing], or congregat[ing] . . . in a military capacity for the purpose of drilling, parading or marching . . . or otherwise tak[ing] up or bear[ing] arms" without the governor's authority. [65]

The key words in this definition stand out as "military" and "tak[ing] up or bear[ing] arms." The phrase "taking up or bearing arms" is self-explanatory; "military" means "relating to soldiers, arms, or war." [66] Together, these terms explain that the laws prohibit groups bearing arms and operating as private armies. In addition to explaining what they outlaw, the laws also specify what [Page 533] they do not ban: schools with military training programs and military training conducted by certain civic groups. [67] These specifications help ensure that a reasonable person has notice of what is proscribed.

Nothing in the case law regarding anti-militia laws gives any indication that the laws are likely to be considered vague. Indeed, in Presser, the Supreme Court noted the plaintiff's argument that Illinois' anti- militia law "deprive[d] [the plaintiff] of either life, liberty or property without due process of law . . . is so clearly untenable as to require no discussion." [68] These long-standing interpretations of anti-militia statutes reflect that the laws are not unduly vague. [69]

Despite these precedents, "the fertile legal 'imagination can conjure up hypothetical cases in which the meaning of (disputed) terms will be in nice question."' [70] For example, some might argue that anti-militia laws seemingly prohibit Civil War re-enactments. A neighborhood watch group that forms to quash riots it believes to be imminent by using military ranking and nightly neighborhood patrols might also seem questionable.

But none of these examples are truly "military" in character. Civil War re- enactments, for instance, occur for purely recreational and educational, as opposed to military, purposes. Similarly, the neighborhood watch group is distinguishable from a true military company because no weapons are used by the group. If the group armed itself with baseball bats, that would present a closer case as to whether its conduct fell within anti-militia statutes.

The fact that there is gray in certain situations does not mean that the laws cannot be enforced where the issues are black and white. [71] Importantly, the laws' constitutionality does not hinge on hypotheticals, but rather on whether people understand that particular conduct is prohibited. [72] If there is an ambiguity, courts could easily craft a limiting construction [73] which would clarify that only groups with a viable military character come within the laws' ambit. [Page 534]

The laws' lack of an intent requirement [74] also fails to render them impermissibly vague. Intent is only a factor mitigating a law's vagueness; it is not a constitutional requirement. [75] Where reasonable people should know that their conduct is dangerous and potentially subject to regulation, intent to violate the law is particularly unnecessary. [76] In United States v. Freed, [77] for example, the Supreme Court upheld a statute making it a crime to possess an unregistered grenade even though the law had no intent requirement, because "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." [78]

Turning to the second vagueness requirement, there is no evidence that anti- militia laws are being enforced in a discriminatory manner. In fact, there is no evidence that the laws are being enforced at all [79] other than in the three decisions issued in 1886, [80] 1896, [81] and 1982. [82] In the event that anti-militia laws are selectively enforced, there are legal remedies available to address the problem. [83]

Anti-militia laws will survive constitutional challenges under either part of the vagueness test. They do not need to meet a higher legal standard to pass constitutional muster [84] because the First Amendment is not implicated. [85] Thus, the statutes are not void for vagueness.

V. Proposed Model Anti-Militia Statute

As demonstrated by the foregoing sections, anti-militia laws pose no constitutional problems and may, therefore, be properly enforced. States that do not yet have anti-militia laws should enact them. A model anti-militia statute [Page 535] appears below. This model law clearly defines the prohibited military organizations to further minimize constitutional concerns.

§ A-A-A. Unauthorized military organizations.

A. Any two or more persons who associate as a military organization or demonstrate with arms in public without the governor's authority shall be guilty of a Class ___ misdemeanor.

B. A military organization is any unit with arms, command structure, training, and discipline designed to function as a combat or combat support unit.

C. This section does not apply to any school or college where military training and instruction is given under the provisions of state or federal laws.

VI. Conclusion

In an age increasingly populated by militia groups that train to commit violence, states should think seriously about using their anti-militia laws to shut down militias. States without these laws should enact them because they are the best route to prevent the violence that militias can cause. Further, states can be confident in enacting these laws because they pose no serious constitutional problems.

* Staff Attorney, Southern Poverty Law Center. J.D., Columbia Law School, 1994; B.A., University of Pennsylvania, 1991.

** Co-Founder & Chief Trial Counsel, Southern Poverty Law Center. J.D., University of Alabama School of Law, 1960; B.A., University of Alabama, 1958. Mr. Dees has written previously about militias, see Morris Dees, Gathering Storm (1996), and was counsel for the plaintiffs in Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D.Tex. 1982).

[1]. The Anti-Defamation League has found militias "operating in at least forty states, with membership reaching about 15,000." Thomas Halpern, et al., Militia Movement: Prescription for Disaster, USA Today (Mag.), Jan. 1996, at 16. More recently, the Southern Poverty Law Center "identified 858 Patriot groups" active in 1996. Klanwatch & Militia Task Force Projects of the Southern Poverty Law Center, Two Years After: The Patriot Movement Since Oklahoma City, Mar. 4, 1997, at part IV. "Patriot groups" include "militia organizations, common-law courts, Identity churches, radio broadcasters, publishers and others who identify themselves as Patriots opposed to the 'New World Order' or who advocate or adhere to similar anti-government doctrines." Id.

[2]. See David Hackworth, Militias Represent Most Clear, Present Danger, Austin-American Statesman, Jan. 24, 1997, at A15 (describing some members of the patriot movement as "wannabe warriors" or "intellectual laptop patriots").

[3]. Some militias utilize military rankings "to enforce the same kind of unquestioning obedience to command that is required of armed forces in times of war." Southern Poverty Law Center, False Patriots 21 (1996) [hereinafter False Patriots]. For instance, the leader of the Republic of Texas militia, Richard McLaren, resides in an "Embassy" surrounded by a Chief of Security, armed guards, and at least one "Ambassador." Sam Howe Verhovek, Serious Face on a Texas Independence Group, N.Y. Times, Jan. 24, 1997, at A1. Bomb threats linked to the Republic of Texas have led state officials to temporarily close two state buildings, and McLaren has threatened military reprisals if the state attempts to shut down his embassy. Id.

[4]. Federal officials have found grenades, rifles, rockets, and nearly a ton of ammonium nitrate fertilizer (one of the ingredients used in the Oklahoma City bomb) at the homes of Arizona militia members known as the "Viper Team." Carol Morello & Gwen Florio, The Evolution of an Uprising, Toronto Star, July 7, 1996, at F7. Members of another militia group, the West Virginia Mountaineer Militia, had "large amounts of plastic explosives, TNT and blasting caps." Robert Ruth, Movement Linked to Plots; Oklahoma City Bombing, Freemen Standoff Head Long List, Columbus Dispatch, Nov. 10, 1996, at 2A. The men were indicted for conspiring to bomb the Federal Bureau of Investigation's fingerprinting complex. Id.

[5]. "The most sophisticated training camps have 700-yard sniping ranges and demolition grounds for bomb testing. Target practice takes place with automatic weapons, large caliber machine guns and .50-caliber sniper rifles. Explosives manufacture and demolition techniques are also studied and practiced." False Patriots, supra note 3, at 20. One reporter observed a small group of militia men training in the Idaho woods. See Bill Morlin, On the Move with the Militia, Spokesman-Rev., Dec. 3, 1995, at H10. Camouflaged, the group stated that it staged ambushes and was armed with powerful rifles, gas masks, and noise detectors. Id. Other militia groups have similarly admitted to conducting paramilitary training with weapons. See Scott Blake, Militias Want Their Rights, Members Say, Tampa Trib., Dec. 26, 1996, at 4 (the 19th Regiment Brevard County Militia in Florida boasted that it has semiautomatic weapons and has conducted secret paramilitary training); John Flesher, Public Scrutiny, Infighting Become Militia's Biggest Foes, Chi. Trib., Apr. 16, 1996, at 8 (the Northern Michigan Regional Militia reported that it engages in paramilitary training every weekend).

[6]. See Richard Abanes, Rebellion, Racism & Religion: American Militias 21 (1996) (noting that "[m]ilitia members ... are being emotionally charged by an electrifying current of anti-governmentalism"). The Republic of Texas, for instance, believes that the State of Texas is still at war with the United States. Verhovek, supra note 3, at A1.

[7]. Halpern et al., supra note 1, at 16; see Morris Dees, Gathering Storm 161-64 (1996) (describing McVeigh's numerous contacts with the militia movement); Susan J. Tochin, Angry Voters Reach Out to Militias, Ariz. Repub., Nov. 3, 1996, at H5 (suggesting that McVeigh "found ample validation for his delusional views" in the militia group he joined).

[8]. While many militias have tried to distance themselves from the taint of racism, see Jim Nesbitt, Militia Movement Trying to Recast Image; It's for Gun Owners' Rights, Not Extremism, Leaders Say, The Times-Picayune, Oct. 13, 1996, at A20. White supremacists have clearly helped to form and shape the militia movement. See False Patriots, supra note 3, at 36-38; Abanes, supra note 6, at 22, 171-73. Certain militia groups have even publicly embraced racist views. See Steve Lipsher, The Radical Right (pt. 2), Denv. Post, Jan. 22, 1995, at A01 (discussing Colorado patriot groups); Rich Gilmore, Skinheads Crash Meeting of Gays, Lesbians, Salt Lake Trib., Oct. 24, 1994, at D1 (discussing the Utah-based "St. George Unit" of the Army of Israel).

[9]. See Klanwatch, Two Years After, supra note 1, at part iv (providing partial list of patriot crimes by state).

[10]. See Peter Applebome, Paramilitary Groups Are Presenting Delicate Legal Choices for the States, N.Y. Times, May 10, 1995, at D1 (discussing failure of states to enforce their anti-militia laws).

[11]. See supra note 1 and accompanying text.

[12]. See Ala. Code § 31-2-125 (1989); Ariz. Rev. Stat. Ann. § 26- 123 (West 1991); Fla. Stat. ch. 870.06 (1994); Ga. Code ann. § 38-2-277 (Harrison 1995); Idaho Code § 46-802 (1977); 20 Ill. Comp. Stat. 1805/94 (West 1993); Iowa Code § 29A.31 (1995); Kan. Stat. Ann. § 48-203 (1994); Ky. Rev. Stat. Ann. § 38.440 (Banks-Baldwin 1992); Me. Rev. Stat. Ann. tit. 37-B, § 342.2 (West 1996); Md. Ann. Code, Militia § 35 (1995); Mass. Gen. Laws ch. 33, § 129-132 (West 1993); Minn. Stat. § 624.61 (1987); Miss. Code Ann. § 33-1-31 (1990); Nev. Rev. Stat. § 203.080 (1995); N.H. Rev. Stat. Ann. § 111:15 (1990); N.C. Gen. Stat. § 127A-151 (1986 & Supp. 1996); N.D. Cent. Code § 37-01-21 (1984); N.Y. Mil. Law § 240 (McKinney 1990); R.I. Gen. Laws § 30-12-7 (1994); Tex. Gov't Code Ann. § 431.010 (West 1990); Wash. Rev. Code § 38.40.120 (1991); W. Va. Code § 15-1F-7 (1995); Wyo. Stat. Ann. § 19-1-106 (Michie 1996).

[13]. Ala. Code § 31-2-125 (1989). Some anti-militia laws also permit punishment up to six months in jail in addition to a fine. See Miss. Code Ann. § 33-1-31 (1990) (allowing a $500.00 fine and six month jail term as punishment); see also Wyo. Stat. § 19-1-106 (Michie 1996) (permitting a $1000.00 fine and six month jail term as punishment).

[14]. See Fla. Stat. ch. 790.29 (1992); Ga. Code Ann. §§ 16-11-150 to - 152 (1996); Idaho Code §§ 18-8101 to -8105 (1987); 20 Ill. Comp. Stat. ch. 1805/94 (West 1993); N.Y. Mil. Law § 240 (McKinney 1990); N.C. Gen. Stat. § 14-288.20 (1993); R.I. Gen. Laws §§ 11-55-1 to -3 (1994) (state anti-paramilitary training statutes in states that also have anti-militia laws). See also Ark. Code Ann. §§ 5-71-301 to -303 (1991 & Supp. 1995); Cal. Penal Code § 11460 (West 1992); Colo. Rev. Stat. § 18- 9-120 (1986 & Supp. 1996); Conn. Gen. Stat. § 53-206b (1994); La. Rev. Stat. Ann § 14:117.1 (West 1986); Mich. Comp. Laws § 750.528a (1991); Mo. Rev. Stat. § 574.070 (1995); Mont. Code Ann. § 45-8-109 (1995); Neb. Rev. Stat. §§ 28-1480 to -1482 (1995); N.J. Rev. Stat. § 2C:39-14 (1995); N.M. Stat. Ann. §§ 30-20A-1 to -4 (Michie 1990); Okla. Stat. Ann. tit. 21, § 1321.10 (West 1983); Or. Rev. Stat. § 166.660 (1990); 18 Pa. Cons. Stat. Ann. § 5515 (West 1983 & Supp. 1996); S.C. Code Ann. §§ 16-8-10 to -30 (Law Co-op. 1996); Tenn. Code Ann. § 39-17-314 (1991); Va. Code Ann. §§ 18.2-433.1 to -433.3 (Michie 1996) (state anti-paramilitary training laws in states that only have such laws).

[15]. Anti-Defamation League of B'nai B'rith, ADL Paramilitary Training Statute: A Response to Extremism, ADL L. Rep. 6 (Fall 1986) [hereinafter ADL Paramilitary Training Statute]; see Southern Poverty Law Center, State Lawsuits Can Shut Down Militias, Klanwatch Intelligence Rep., June 1995, at 1, 14 [hereinafter State Lawsuits Can Shut Down Militias] (discussing differences between two types of laws).

[16]. See Dees, supra note 7, at 221.

[17]. The Second Amendment provides that "[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." U.S. Const. amend. II.

[18]. 116 U.S. 252, 264-65 (1886) (finding that the Second Amendment does not apply to the states); see also Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 208 (S.D.Tex. 1982) (upholding anti-militia law under the Second Amendment); Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass. 1896) (also upholding anti-militia law despite Second Amendment challenge).

[19]. Joelle E. Polesky, The Rise of Private Militia: A First and Second Amendment Analysis of the Right to Organize and the Right to Train, 144 U. Pa. L. Rev. 1593, 1611-20 (1996).

[20]. R.J. Larizza, Paranoia, Patriotism, and the Citizen Militia Movement: Constitutional Right or Criminal Conduct?, 47 Mercer L. Rev. 581, 600 (1996).

[21]. ADL Paramilitary Training Statute, supra note 15, at 6.

[22]. See Polesky, supra note 19, at 1621-42; Larizza, supra note 20, at 618-32; ADL Paramilitary Training Statute, supra note 15, at 3-7. See generally John R. Moore, Note, Oregon's Paramilitary Activities Statute: A Sneak Attack on the First Amendment, 20 Willamette L. Rev. 335, 335-36 (1984).

[23]. State Lawsuits Can Shut Down Militias, supra note 15, at 14.

[24]. See, e.g., Cal. Penal Code § 12020 (West 1992 & Supp. 1997) (criminalizing the possession of certain firearms, including bullets with explosive agents and short-barreled shotguns or rifles); Mont. Code Ann. § 45-8-333 (1995) (making it a misdemeanor to recklessly use explosive substances); Mont. Code Ann. § 45-8-335 (1995) (punishing possession of explosives by up to 20 years in jail and a $50,000.00 fine); Mont. Code Ann. § 45-8-336 (1995) (permitting same punishment for possession of a silencer); cf. Cal. Penal Code § 11460 (West 1992) (penalizing violation of anti-paramilitary law with up to one year in jail and $1000.00 fine); Mont. Code Ann. § 45-8-109 (1995) (punishing violation of anti-paramilitary law with up to 10 years in jail and $50,000.00 fine).

[25]. U.S. Const. amend. I.

[26]. Texas v. Johnson, 491 U.S. 397, 403 (1989).

[27]. 391 U.S. 367 (1968).

[28]. Id. at 377. Applying this test, the O'Brien Court upheld a law criminalizing the burning of draft cards. Id. at 382. See also Texas v. Johnson, 491 U.S. at 412, 420 (finding a Texas law banning flag desecration during political protests unconstitutional, as content-based regulation required a more rigorous constitutional test than the O'Brien test); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298-99 (1984) (upholding park regulation which prohibited camping as applied to people protesting homelessness under O'Brien); Schacht v. United States, 398 U.S. 58, 63 (1970) (striking down a statute which criminalized the unauthorized wearing of a military uniform during a skit protesting the Vietnam War because people have "the right to openly criticize the government during a dramatic performance").

[29]. See ADL Paramilitary Training Statute, supra note 15, at 6 (noting that anti-militia statutes "regulate[ ] conduct only"); Polesky, supra note 19, at 1613 (describing expressive content of militia members' activities).

[30]. See supra note 13 and accompanying text.

[31]. See id.

[32]. 543 F. Supp. 198, 208 (S.D.Tex. 1982).

[33]. See supra note 13 and accompanying text (presenting Alabama's anti- militia law, which applies equally to all unauthorized military organizations); but see Polesky, supra note 19, at 1612-16 (maintaining that the laws restrict speech based on the militia's anti-government message); Dees, supra note 7, at 221 (quoting Colorado and North Dakota attorneys general regarding same).

[34]. Vietnamese Fishermen's, 543 F. Supp. at 209.

[35]. Madsen v. Women's Health Center, Inc., 512 U.S. 753, 763 (1994); see Council for Life Coalition v. Reno, 856 F. Supp. 1422, 1428 (S.D.Cal. 1994) (citations omitted) (noting that "[p]ersons who interfere with access to reproductive health services 'are not shielded from regulation merely because they express a[n] ... idea or philosophy"').

[36]. 116 U.S. 252, 267-68 (1886); see also Vietnamese Fishermen's, 543 F. Supp. at 209 (finding that Texas' anti-militia law satisfied the O'Brien test and that Texas had the power to regulate private militias); Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass. 1896) (noting that the state had power to enforce its anti-militia law to preserve public security and order).

[37]. See supra note 13 and accompanying text.

[38]. See False Patriots, supra note 3, at 9 (discussing patriot myth that "[b] lack helicopters are being used to spy on law-abiding citizens").

[39]. See supra note 7 and accompanying text (referring to McVeigh's militia ties).

[40]. Testimony during a trial charging the White Patriot party with violating North Carolina's anti-paramilitary training statute revealed as much. When an official of the North Carolina State Bureau of Investigation visited the group, the group's leader, Glenn Miller, told him "that the group only engaged in defensive training." Morris Dees, A Season for Justice 284 (1991). "'After [the official] left,' [testified the plaintiffs' informant James Holder], 'it was a big laugh. We sat and joked about it because we had blew [sic] a smoke screen."' Id.

[41]. Ruth, supra note 4, at 2A.

[42]. Vietnamese Fishermen's, 543 F. Supp. at 209.

[43]. Healy v. James, 408 U.S. 169, 181 (1972).

[44]. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933 (1982).

[45]. See Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 225 (1989).

[46]. See supra part II.

[47]. See id.

[48]. Vietnamese Fishermen's, 543 F. Supp. at 209.

[49]. Presser v. Illinois, 116 U.S. 252, 267 (1886) (emphasis added).

[50]. The Supreme Court decided Presser before it actually recognized the right to free association in NAACP v. Alabama, 357 U.S. 449 (1958). This right is much broader than the right to free assembly. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court noted that freedom of association covers "intimate human relationships" as well as the right to engage in "activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion." Id. at 617-18.

[51]. See Presser, 116 U.S. at 257.

[52]. Id. at 264-65.

[53]. See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (stating that prisoners can only bring excessive force claims under the more specific Eighth Amendment, which prohibits cruel and unusual punishment, rather than under the redundant substantive due process clause).

[54]. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

[55]. Id.

[56]. Id.

[57]. Id.; see also United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) (noting that crimes without mens rea requirements have a "generally disfavored status").

[58]. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982).

[59]. Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989); see Grayned, 408 U.S. at 110 ("Condemned to the use of words, we can never expect mathematical certainty in our language.").

[60]. Village of Hoffman Estates, 455 U.S. at 494-95.

[61]. United States v. National Dairy Prod. Corp., 372 U.S. 29, 32 (1963).

[62]. Larizza, supra note 20, at 600.

[63]. See supra note 15 and accompanying text.

[64]. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

[65]. Ala. Code § 31-2-125 (1989) (emphasis added).

[66]. Merriam Webster's New Collegiate Dictionary 738 (10th ed. 1993).

[67]. Ala. Code § 31-2-125 (1989); see also Ga. Code Ann. § 38-2- 277 (1995) (noting that students of military science schools may drill or parade with firearms and that benevolent groups "may parade in public with swords"); 20 Ill. Comp. Stat. 1805/94 (West 1993) (exempting veterans groups and students of military drill from the law).

[68]. Presser, 116 U.S. at 268; see also Vietnamese Fishermen's, 543 F. Supp. at 203 n.3 (noting that "paramilitary" is a more precise term than "military" in the statute, but that the Court "uses the general term 'military' to include 'paramilitary"').

[69]. See Jordan v. De George, 341 U.S. 223, 227-32 (1951) (fact that there was a long-standing interpretation of "crime involving moral turpitude" helped persuade Court that term was not unduly vague).

[70]. Grayned v. City of Rockford, 408 U.S. 104, 110 n.15 (1972) (citing American Communications Assn. v. Douds, 339 U.S. 382, 412 (1950)).

[71]. As the Supreme Court has explained, "statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language." United States v. National Dairy Prod. Corp., 372 U.S. 29, 32 (1963).

[72]. Id. at 32-33.

[73]. See id. at 32.

[74]. See supra note 13 and accompanying text.

[75]. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982).

[76]. See United States v. Dotterweich, 320 U.S. 277, 284-85 (1943) (ruling that "consciousness of wrongdoing" is not needed in statute penalizing the shipment of adulterated food or drugs); United States v. Balint, 258 U.S. 250, 251-54 (1922) (upholding statute making it a crime to sell a certain amount of opium where knowledge of the offense was not required).

[77]. 401 U.S. 601 (1971).

[78]. Id. at 609.

[79]. See supra note 10 and accompanying text.

[80]. Presser v. Illinois, 116 U.S. 252 (1886).

[81]. Commonwealth v. Murphy, 44 N.E. 138 (Mass. 1896).

[82]. Vietnamese Fishermen's Ass'n v. Knights of Ku Klux Klan, 543 F. Supp. 198 (S.D.Tex. 1982).

[83]. See United States v. Armstrong, ___ U.S. ___, 116 S. Ct. 1480, 1487 (1996) (listing requirements for a defense of selective prosecution).

[84]. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982).

[85]. See supra parts II & III.