Many people have brought to our attention a document titled,
“Fact Sheet on Unlawful Militias in Virginia” (or other State),
purportedly prepared by the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law . We have seen very similar versions for many of the States, and articles with similar messages are easy to find.
Below, I quote ICAP’s text, in italics., and offer my comments.

First, as background, it must be understood that in the Colonial and early Constitutional periods, recognition, organization, regulation, and support of Militia by government was nearly universal, and recognized as essential. This is a reciprocal duty carried forth and codified in our Constitution. It has been abdicated by our government for 150 years. However, it is no less important today than it was centuries ago, to secure safety and rule of law in our communities, to assure citizens of the lawful intent of persons acting as Militia, and to provide coordination with the Grand Jury and Court system to enable Militia’s essential law enforcement function.

Notwithstanding this abdication, Militia is not only our organic exercise of our God-given right and duty of self-defense, but is the only thing defined as “necessary” in our Constitution. The neglect of duty by Congress and the States cannot be allowed to destroy it, and the Declaration of Independence clearly establishes that it does not.

However persons and groups intending to perform their civic duty as Militia still have the obligation to seek, wherever possible, the Constitutionally-assumed reciprocal recognition by and coordination with any willing and available level of government. This is likely to be most convenient at the County level, through the passage of an Ordinance similar to the TACTICAL CIVICS™ Model Constitution Protection and Militia Ordinance, written by quondam Tactical Civics Co-Founder John Leyzorek and available from him. You can find a generic version in the “files” here on this site, but please contact John for the version specific to your State.

What is a militia?
Federal and state laws generally use the term “militia” to refer to all able-bodied residents between certain ages who may be called forth by the government to defend the United States or an individual state. See 10 U.S.C. § 246.

Congress has no Constitutional authority to define Militia or limit its powers or membership.

When not called forth, they are sometimes referred to as the “unorganized militia.” A group of people who consider themselves part of the able-bodied residents referred to as members of the militia under state or federal law is not legally permitted to activate itself for duty. A private militia that attempts to activate itself for duty, outside of the authority of the state or federal government, is illegal.

“Unorganized militia” is an oxymoron. Militia is not private, it is a public function. Militia’ right to respond autonomously to immediate needs cannot be outlawed, after all, it is we-the-people collectively exercising our own right of self-defense loal to the threat.

When the Declaration of Independence stated that, “He has dissolved Representative Houses repeatedly…whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise”, the American People collectively established that powers delegated by the People return to them, when the servant body to which they have been delegated abdicates, neglects, or refuses their proper exercise. Both Congress and the States have long since abdicated their duties of supporting Militia, which, however, the Constitution states is “necessary”. “Call forth” is a Constitutional term. “Activate” is not. It is the essential nature and duty of Militia to respond immediately to any immediate threat, however response to threats not directly observed or not in the group’s locality should only be by “call” from appropriate authority local to the threat. If law is unexecuted, and insurrection or invasion is taking place but Congress and the State concerned are neglecting their duty to “call forth” Militia, then that duty, too, returns to the People.

How do I know if a group of armed people is an unauthorized private militia?
Groups of armed individuals that engage in paramilitary activity or law enforcement functions without being called forth by a governor or the federal government and without reporting to any government authority are acting as unauthorized private militias. They sometimes train together and respond to events using firearms and other paramilitary techniques, such as staking out tactical positions and operating in military-style formations. They often purport to have authority to engage in military and law enforcement functions such as protecting property and engaging in crowd control.

No law requires “authorization” of Militia, and no institution of government has lawful power to “authorize” or decline to authorize Militia. Militia is “the whole People, except for a few public officials”, and it is the collective and public exercise of the unalienable right of self-defense.

Law enforcement functions may be performed by any person in the form of “citizens arrest”, a common law power codified in most States, and are not the exclusive privilege of government employees. Moreover, Law enforcement is a Constitutionally explicit power of Militia. (Art I Sec 8 Clause 15)

There is no conflict between inherent rights simultaneously exercised, as, the right to arrest and the right to bear arms.

In the Constitution we give power to Congress to“call forth” Militia, but not “exclusive” power. The President is commander of Militia only when it has been “called” into actual service of the united States. Militia is inherently paramilitary, and the Constitution defines it as “necessary”, therefore neither it not its essential nature can be prohibited. The term “private militia” is an oxymoron, since Militia is a public function. An armed group entering private quarrels without due processwould be a gang. Armed citizens executing law, suppressing insurrection, repelling invasion, or performing other public safety or aid functions are not “private”, and are functioning substantially and in their inherent authority as Militia.


These groups often engage in behaviors that show their intent to act as a private militia, such as wearing military- style uniforms, tactical gear, or identifying insignia; wielding firearms or other weapons; and operating within a coordinated command structure. Other factors—such as statements by leaders or members’ efforts to direct the actions of others—also may suggest that a group is acting as a private militia. Groups of armed individuals may engage in unauthorized militia activity even if they do not consider themselves to be “members” of a paramilitary organization.

Militia is a fundamental lawful citizen function, not a crime, therefore “intent” to do so is not criminal.
Insignia are protected speech and related to the right of assembly and free association.
Direction without compulsion is protected speech. As above, “authorization” is inapplicable to Militia, and while “calling forth” as well as regulation are non-exclusive government functions, our government also has abdicated them.

Does the Second Amendment protect private militias?
No. In fact, the Supreme Court decided in 1886—and repeated in 2008—that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.” District of Columbia v. Heller, 554 U.S. 570, 621 (2008) (citing Presser v. Illinois, 116 U.S. 252 (1886)).

Militia is “necessary” under the Constitution, and is not a private organization, but an essential civic function. Militia is intrinsically paramilitary, and cannot be prohibited because it is recognized as “necessary” in the Constitution.

Presser v Illinois correctly notes that the assembly element of militia activity is absolutely protected by the federal Constitution. The decision upholds the conviction on the basis that the prohibited Militia activity was not by an “organized” Militia, however nowhere does the Constitution authorize the Government to specify precisely what constitutes “organization” of Militia, nor what body or bodies may exercise this authority. So the unspoken implication on which the decision is based , i.e. that “organization” of Militia can only proceed from government is without foundation, is absent from the Constitution, and is contradicted by the Declaration of Independence.
.
The Constitution of Illinois states, “SECTION 1. MEMBERSHIP
The State militia consists of all able-bodied persons
residing in the State except those exempted by law.
SECTION 3. ORGANIZATION, EQUIPMENT AND DISCIPLINE
The General Assembly shall provide by law for the
organization, equipment and discipline of the militia in
conformity with the laws governing the armed forces of the
United States.

There is no showing that the State of Illinois does or ever did provide as required for all able-bodied persons, therefore under the principle set forth in paragraph 8 of the Declaration of Independence, these powers return to the People at large for their exercise. This is at least as true today in Virginia as it was in Illinois in 1886

Finally, Larry Kramer, former dean of Stanford University Law School, in his book The People Themselves sets forth the case that we-the-people are the final arbiters of what the law says, not the federal Supreme or any other court.


Is it legal to act as a private militia in Virginia?
No. All 50 states prohibit private, unauthorized militias and military units from engaging in activities reserved for the state militia, including law enforcement activities. Some, including Virginia, also prohibit paramilitary activity during or in furtherance of a civil disorder. Virginia’s laws are described below:
Virginia Constitution: The Virginia Constitution forbids private military units from operating outside state authority, providing that “the military should be under strict subordination to, and governed by,the civil power.” Va. Const. art. I, § 13.

As pointed out supra, “Private militia” is an oxymoron without meaning in this context, as is “authorization” of Militia. Nor is Militia the same as “the military” Nor does the Constitution require Militia to be formally “called forth” by any authority in order to function.

Prohibiting any activity, paramilitary or not, that may be an appropriate and proportional part of self defense in any situation, disorderly or otherwise, unlawfully contravenes the inherent right of self-defense

Virginia Statutes
Prohibition on paramilitary activity:
It is a felony in Virginia to:
(1) teach or demonstrate how to use, apply, or make “any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that such training will be employed for use in, or in furtherance of, a civil disorder”; (2) assemble “with one or more persons for the purpose of training with, practicing with, or being instructed in the use of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, intending to employ such training for use in, or in furtherance of, a civil disorder”; or

To prohibit teaching or assembly of any kind in furtherance of civil disorder is perfectly reasonable and appropriate. However to so infringe rights of speech and assembly used to disseminate information usable for self-defense IN a civil disorder, or anywhere else, is an illegitimate invasion not only of rights of speech and assembly but of the most fundamental of human rights, that of self-defense. This may be considered as having zero relevance or application to militia, since it is militia’s duty and authority to suppress insurrections, not participate in them. Additionally it may be seen as repugnant to the Constitution, since militia has explicit inherent authority to “suppress insurrections”.

(3) “point, hold or brandish any firearm or any air or gas operated weapon” or similar-looking object, “whether capable of being fired or not,” in a way that would “reasonably induce fear in the mind of another” “while assembled with one or more persons for the purpose of and with the intent to intimidate any person or group of persons.” Va. Code Ann. § 18.2-433.2 (incorporating Va. Code Ann. § 18.2-282(A)).

No credible assertion can be made that Militia activity per se is intended to intimidate anyone, nor can a claim that “I was intimidated” logically lead to the presumption that the action referred to was so intended or reasonably could have been expected to do so. However to attempt to intimidate a person reasonably believed to have the means and intent to do harm, can also be a proper and responsible part of the inherent unalienable right of self-defense, and the best way to avoid actual violence.

Prohibition on falsely assuming functions of law enforcement: In Virginia, it is a crime for any person to “falsely assume[] or exercise[] the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or any local, city, county, state, or federal law-enforcement officer.” Va. Code Ann. § 18.2-174.
It is also “unlawful for any person, not an officer, warrant officer or enlisted person in the armed forces of the United States, to wear” a uniform that is “similar to a distinctive part of the” uniform of the U.S. armed forces. Va. Code Ann. § 44-120.

Militia does not usurp any power or privilege lawfully exclusive to paid government employees. It does not intend to replace them nor to interfere with their lawful activity. However, its authority to execute the Law comes from the inherent and unalienable right to collective self-defense, and is explicitly recognized by the Constitution.
Military uniforms have acquired a drab similarity all over the world, however no militia unit wants or seeks to be confused with a government-employed, unconstitutional standing military unit.

What should I do if I see armed groups near a polling place or voter registration drive?
First, document what you see:

➢ What are the armed people doing?

Criminal acts are criminal. Assembling, observing, and deterring or obstructing crime or defending persons or property against violence or destruction are lawful.

➢ What are the armed people wearing?

If they are naked, they may be committing indecent exposure

➢ Are they carrying firearms? If so, what type? If not, are they carrying other types of
weapons?

Protected by Second Amendment

➢ Are they wearing insignia? If so, what does it say or look like?

Protected speech

➢ Are they bearing signs or flags?

Protected speech

➢ Do they seem to be patrolling like a law enforcement officer might do?

Observing activity in public is not a crime

➢ Do they seem to be coordinating their actions? ➢ Do they have a leader?

Protected rights of assembly and association. Militia is to be “well-regulated”

➢ Are they stopping or talking to people outside of their group?

Protected rights of speech, assembly, and association

➢ Do they appear to be provoking or threatening violence? If so, what are they doing
specifically?

Threatening violence ONLY as a reasonable proportional response to violence or threat thereof, is part of the right of self-defense

➢ Are people turning away from the polling station after seeing or speaking with them?

ICAP’s mission is to use the power of the courts to defend American constitutional rights and values. Visit us at www.law.georgetown.edu/icap/. Contact us at reachICAP@georgetown.edu.