Paramilitaries? Terrorists? What should militia groups be called?

©Detroit Free Press

Jenni Girtman/Atlanta Journal-Constitution/TNS

LANSING, Mich. — Gov. Gretchen Whitmer, who last week escaped an alleged militia-backed kidnapping plot when federal and state officials arrested and charged 13 men, says such groups are domestic terrorists.

State Senate Majority Leader Mike Shirkey says militias are “getting a bad rap,” and composed of people “not uniquely different” from you and me. “They have a real purpose, and I think a sincere purpose,” Shirkey, R-Clarklake, said in a May TV interview, months before Thursday’s charges.

Both Whitmer and Shirkey were speaking broadly about private, armed paramilitary organizations, often self-described as militias, that have proliferated in Michigan for decades.

“They’re not ‘militias,’” Whitmer said in a Friday morning tweet that did not appear limited to the Wolverine Watchmen, a group whose members are accused of plotting against her. “They’re domestic terrorists endangering and intimidating their fellow Americans. Words matter.”

Indeed. How such groups are described is important — affecting their members’ abilities to gather with guns in public places, provide “security” at public events, appear on platforms with state lawmakers or county sheriffs, and carry rifles into public galleries that overlook the Senate floor. Do they “bleed red, white and blue,” as Shirkey describes them, or are they “hate groups,” as Whitmer spokeswoman Tiffany Brown said the governor sees them?

The truth is somewhere in between Whitmer’s and Shirkey’s characterizations, experts say. Private paramilitary groups, which often call themselves militias, should not be all lumped together and must be judged and labeled based on their actions and intentions, they say. Those same experts warn the potential for violence from such groups has grown under President Donald Trump and continues to grow in the highly charged political climate surrounding the Nov. 3 election.

“There’s nothing inherently illegal about them,” said Javed Ali, who has a law degree, is the former senior director for counterterrorism at the National Security Council, and is now a policy maker in residence at U-M’s Ford School of Public Policy.

Militias rely on constitutional provisions found in the First Amendment protecting freedom of speech, expression and assembly; and in the Second Amendment protecting the right to bear arms, Ali said.

“It’s only when their activity sort of crosses the line into criminal activity — that’s when it runs afoul of law enforcement.”

For example, a self-styled militia that trains with weapons on private property with no intent to take part in a civil uprising or engage in other criminal activity would be behaving lawfully.

As another example, Ali cited private militias that have patrolled the country’s southern border with Mexico in what has been described as a “tacit alliance” with the U.S. Border Patrol, though there have been isolated arrests and concerns from groups such as the American Civil Liberties Union (ACLU) about unsupervised paramilitaries detaining migrants.

“By and large, the existence of these groups on the southern border has been tolerated for some time, and even if not legal according to state law, has not led to wide-scale disruption of their activities,” he said.

Mary McCord, legal director of Georgetown Law’s Institute for Constitutional Advocacy and Protection, said public activity by militias generally violates federal and state constitutional and statutory provisions nationwide, even though such laws have seldom been enforced.

The main constitutional issue is that military groups must be under the control of the federal or state governments, and private militias and paramilitary groups are not. McCord does not believe private militia groups are generally protected by the First and Second Amendments.

Still, even McCord, a former acting assistant attorney general for national security at the U.S. Justice Department, said the example of armed militias training on private land with no revolutionary or criminal intent — and no policing role outside of the private land they train on — would be lawful.

“I think if they’re just on private property training for the end of days, or whatever … I wouldn’t necessarily say that is illegal,” McCord said.

A major issue nationwide has been a lack of enforcement of laws that restrict paramilitary groups, she said.

In Michigan, for example, armed members of a group called the Michigan Liberty Militia were blocking access to the Capitol steps at an April 30 demonstration in Lansing against Michigan’s state of emergency, as members of the Michigan State Police patrolled nearby and appeared to take no notice.

Private security firms and guards must be licensed in Michigan, and McCord said it violated a state statute for the militia group to “assume the functions of a peace officer” at the Capitol without authorization.

There could be many reasons why the MSP did not choose to enforce the law, including a calculation that trying to remove the armed men amid a large crowd would create greater public risk than letting them remain where they were, McCord said.

Private paramilitary groups, which often call themselves militias, occupy a somewhat vague legal territory. The Constitution recognizes the need for a “well-regulated militia” in the Second Amendment, but legal scholars agree that applies to the entirety of able-bodied men in the country able to provide for the common defense, not private groups.

And since the late 1880s, the court has said it’s the states, not individuals, who have the authority to regulate militias. And while the court has made clear that the Second Amendment doesn’t permit states to restrict the right to bear handguns and other firearms in common use, it has not, as yet, taken the right away from states to regulate groups calling themselves militias.

As such, every state has some kind of law on the book restricting private groups or their activities in some fashion. The Michigan Constitution makes clear that any military unit — presumably meaning any private “militia” purporting to be raised for the common good — is under the control of civil authorities.

The Supreme Court has ruled that simple expressions of government overthrow may not be enough to prosecute a militia member or group, but any sort of imminent threat of violence or insurrection can be addressed to protect the security of a state.

“What we’re seeing in the kinds of militias that we see today, these sort of self-appointed militias that have no relationship with the state government whatsoever, no authority to speak for the state or for the people of the state, these are not the kinds of militias that are referenced by the Second Amendment,” Adam Winkler, a law professor at the University of California at Los Angeles and expert in constitutional law and gun policy, told US News and World Report recently.

McCord said the lack of enforcement needs to stop.

Such groups are becoming much more visible and “emboldened to be out in public” under Trump, because their members believe they share a bond with the president by holding anti-government, anti-immigrant and anti-leftist views, as well as an absolutist view of the Second Amendment, she said.

“It’s dangerous to public safety.”

Though militia groups, especially in Michigan, have generally been made up of white males — though white women are members, too — “within their grievances there doesn’t seem to be a big racial component,” which is a distinction from the broader umbrella of far-right groups, which includes neo-Nazis and white supremacists, Ali said.

McCord said there is no current legal authority to designate domestic organizations as terrorist organizations, largely because of issues related to the First Amendment.

There is a growing phenomenon of Black people and other people of color forming paramilitary organizations, often in response to provocations from armed groups composed of whites.

In early May, after demonstrations outside the Capitol that drew many groups and included white protesters carrying Confederate flags and other racist symbols, state Rep. Sarah Anthony, D-Lansing, was escorted into the Capitol by several Black men in civilian clothes, carrying rifles.

“I’m not a huge gun person, in full disclosure, but I was pleased to receive the type of support from these community members who said ‘We’ve got your back,’” Anthony said.

The support for Anthony was spontaneous and not comparable to the formation of a militia. But armed Black militias — including the Not F---ing Around Coalition in Kentucky — have been springing up around the country amid unrest over the police killings of Breonna Taylor, George Floyd and other unarmed Black civilians.

“I can’t really blame people on the left for saying, ‘If they’re going to do it, I’m going to do it,’ “ but the same laws apply, said McCord.

Ali said the formation of Black paramilitary groups must be seen as a different phenomenon from the militia movement. But it is a counter-movement that increases the likelihood of violence when two armed groups clash.

“It’s already occurring, and we’ll probably see more of it,” he said.

Though he has spoken in positive terms about militia groups generally, Shirkey on Thursday condemned the plot against Whitmer and those involved in it.

Shirkey said in his May 18 interview with JTV in Jackson that he had asked to meet with the leaders of various Michigan militia groups and believes many of them get a bad reputation because of people who tag along after them, seeking attention, such as someone wanting “to get their photo taken with a noose on a Barbie doll.”

He said he met in Lansing with leaders of three of the groups and “we talked about their messaging, their purpose, what are they trying to accomplish, and how they could improve getting their message across.”

Shirkey, who could not be reached for comment Friday, said the meeting “was very fascinating, and they’re not uniquely different from you and I. They bleed red, white and blue, but they feel like they’re not being heard.”

He said he suggested that each group create its own code of conduct, which could be carried on a pocket-sized card and shown to members of the public who question or challenge them.

On Thursday, when Whitmer criticized Trump for being “complicit” in the kidnapping plot for his downplaying of the pandemic, his criticism of her orders and encouragement of armed protesters, and his refusal at times to flatly and forcefully denounce hate groups, she also voiced a broader criticism that took in Republican lawmakers, such as Shirkey, in the Michigan Legislature.

“Anyone in a leadership position that is fraternizing or giving comfort to militia groups is complicit,” she told the Free Press, “whether it is a local leader or the president of the United States.”

In addition to meeting with militia leaders, Shirkey and other state GOP lawmakers have appeared with them at demonstrations against Whitmer’s handling of the pandemic.

And at least two of the men charged Thursday were photographed at the Capitol at an anti-Whitmer demonstration in April.

“They either calm things down, or they incite them,” Whitmer said. “Every leader makes a choice.”

Asked if Whitmer was saying that all self-styled militia groups are terrorist organizations, her spokeswoman, Brown, said: “Any group that plans to kidnap and possibly kill the governor, blow up bridges, and violently attack people inside government buildings should be considered a domestic terror organization.”

When it was pointed out that Whitmer’s tweet and her Thursday comment about “giving comfort to militia groups” appeared much broader than that, Brown said: “Hate groups, I think that is the point here.”

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(Detroit Free Press staff writer Todd Spangler contributed to this report.)

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