In May of this year I wrote a blog post about protesters and demonstrators carrying firearms at their events. In the months since that post, a variation of that conduct has begun happening more frequently: armed militias showing up at other groups’ events, either as supporters or as opponents. The recent events in Kenosha have brought renewed media attention to this issue, but incidents involving armed militias have occurred all across the country this summer (see a few examples here, here, here, and here).
Lately I’ve been asked if these types of private militias are legal in North Carolina, and if so, whether they are permitted to “deploy” to protests as participants or security? This post provides a summary of the relevant statutes and the criminal offenses that may apply.
Is This Happening in North Carolina?
I don’t have first-hand knowledge about the movement, but in 2019 the Southern Poverty Law Center estimated that militias and related anti-government groups in the U.S. numbered well into the hundreds, including 20 groups operating in North Carolina. A surge of militia activity back in the 1990’s was followed by a decline over the next couple decades, but the number of militias appears to be rising again this year in reaction to the “threads of the modern American experience that for months have been pulled with increasing tension,” as Chris Tyner eloquently put it in last week’s News Roundup.
Social media companies like Facebook have begun disabling the pages of militia groups, making it more difficult to accurately estimate their current numbers. But privately run websites like this one still advertise more than 20 active North Carolina-based militias, with participation ranging from a single person up to 40 members, and this militia group claims its membership has risen “to over a few hundred members through-out the state.” Whether this phenomenon will taper off or continue to grow remains to be seen, but since this is probably an unfamiliar area of law for most practitioners, a brief primer seemed overdue.
Organized and Unorganized Militias
The North Carolina militia statutes are found in Chapter 127A, and they provide for two different types of state militias: organized and unorganized. The organized militia is composed of the state’s National Guard (Army and Air), along with a naval militia and certain historic military commands. G.S. 127A-3, 4, 6. The organized militia also includes the “state defense militia,” a counterpart to the state’s National Guard that is not subject to being called into federal service. See G.S. 127A-5. The predecessor to the state defense militia was active from 1941-1947, and it was reactivated from 1988-1996 when Guard troops were deployed to the Persian Gulf, but the force is suspended and inactive at this time.
G.S. 127A-7 addresses the state’s other military force, known as the “unorganized militia.” If you are not familiar with this force, you may be surprised to learn that if you are over age 17 and not a convicted felon, you are probably already a member of it:
The unorganized militia shall consist of all other able-bodied citizens of the State and of the United States and all other able-bodied persons who have or shall declare their intention to become citizens of the United States, who shall be at least 17 years of age, except those who have been convicted of a felony or discharged from any component of the military under other than honorable conditions.
Id. Proponents of private militias often cite this statute as support for the claim that their activities are not only lawful, but also their patriotic duty. However, the remainder of Chapter 127A strictly limits the formation and operation of such groups.
Control of the Unorganized Militia
First, and most importantly, the fact that nearly all adult citizens of the state are members-in-waiting of the unorganized militia does not authorize them to self-mobilize or engage in the type of activities typically performed by law enforcement agencies and military units. The Governor is the commander in chief of all militia units, both organized and unorganized, and only he or she has the power “to call out the militia to execute the laws, secure the safety of persons and property, suppress riots or insurrections, repel invasions and provide disaster relief.” G.S. 127A-16. See also G.S. 127A-17 (Governor prescribes regulations for both organized and unorganized militia); G.S. 127A-87 (“The commander in chief may at any time…order out the whole or any part of the unorganized militia”).
Furthermore, the statutes make clear that the unorganized militia is the state’s defensive force of last resort. It may only be activated after the Governor has already called out the National Guard and any other organized militias and found that “the number available is insufficient” for the task, in which case “the Governor shall then order out any part of the unorganized militia that the Governor may deem necessary.” G.S. 127A-87; G.S. 127A-97 (“in all cases the North Carolina National Guard and naval militia as provided for in this Chapter shall be first ordered into service”). In the unlikely event that the unorganized militia is actually needed, the Governor may call up a sufficient force either by volunteer or by draft, and attach them to units of the Guard or other organized militias “as may be best for service.” G.S. 127A-88.
In short, the idea of private citizens banding together to create their own military unit may work in the movies, but it is not permitted under North Carolina law.
What Are the Crimes?
Very few appellate cases have analyzed Chapter 127A, and the limited cases we do have primarily address civil issues such as retirement benefits eligibility for Guard members. See, e.g., Baccus v. N.C. Dept. of Crime Control and Public Safety, 195 N.C. App. 1 (2009). As a result, we do not yet have a body of case law that clearly draws a line between what constitutes a “militia” as opposed to, let’s say, a group of individuals who happen to be engaging in firearms practice, group exercise, and political discussion. Judges, juries, and appellate courts will have to chart that course in the years ahead, but in the meantime there are two approaches for situations where criminal charges may be warranted.
1. Statutory Militia Offenses:
G.S. 127A-151 makes it a Class 1 misdemeanor for any person to form a military company, act as a military officer, or drill or parade with such a group without authorization from the Governor as outlined in the statutes above:
If any person shall organize a military company, or drill or parade under arms as a military body, except under the militia laws and regulations of the State, or shall exercise or attempt to exercise the power or authority of a military officer in this State, without holding a commission from the Governor, the person shall be guilty of a Class 1 misdemeanor.
Id. If the status of the person or group is sufficiently clear from the facts (e.g., self-identified as a militia, wearing uniforms or insignia, parading under arms, established chain of command, attempting to exercise military authority), this charge may be appropriate. Chapter 127A contains additional related offenses, such as unlawfully placing a person’s name on a militia muster roll (G.S. 127A-152, Class 1 misdemeanor) and violating the regulations regarding wearing a military uniform (G.S. 127A-153, “punished in like manner and to the extent prescribed by Article 134 of the Uniform Code of Military Justice”), but applying those offenses to a militia that was not lawfully formed in the first place could be problematic.
2. Unlawful Assembly and Other Crimes:
In situations where armed individuals show up to assist or interfere with a protest, but claim they are acting on their own and deny being members of a militia group, it may be harder to decide if they are in violation of G.S. 127A-151. Even if those individuals are not in violation of the anti-militia statute, they may be committing the common law offense of Unlawful Assembly:
The common law crime of unlawful assembly, which is a component element of common law riot, contains the following elements: (1) the participation of three or more persons; (2) a common intent to attain a purpose which will interfere with the rights of others by committing disorderly acts; and (3) a purpose to commit acts in such manner as would cause firm persons to apprehend a breach of peace.
State v. Brooks, 287 N.C. 392 (1975). See State v. Leary, 264 N.C. 51 (1965); State v. Cole, 249 N.C. 733 (1959). Pursuant to G.S. 14-3(a), a conviction for this common law offense is punished as a Class 1 misdemeanor. Obviously this offense presents the challenge of proving that the suspects had the intent to commit a qualifying disorderly act; but if the evidence supports that element, this option has the benefit of allowing law enforcement to intervene before the intended crime actually occurs.
Alternatively, as discussed in the earlier post on G.S. 14-277.2, bringing a firearm to a protest or demonstration is a crime in itself, and any number of other criminal offenses can occur at these events just as they would anywhere else (assault, trespassing, vandalism, disorderly conduct, riot, armed to the terror of the public, etc.) and be charged accordingly. Additionally, given that issues of race have been a significant factor in many recent demonstrations, charging agencies might also consider whether the sentencing enhancement for an offense “committed because of the victim’s race, color, religion, nationality, or country of origin” is applicable. See G.S. 14-3(c).
Constitutional Challenges to Anti-Militia Statutes?
Turning back to the anti-militia statutes themselves, particularly since many militias pledge loyalty to the Constitution to the exclusion of any other laws, the next question is whether these statutes violate the participants’ First or Second Amendment rights? Again, militia-specific case law is sparse in North Carolina, but the available precedent strongly suggests that neither amendment protects organizing or acting as a private militia.
The First Amendment certainly protects freedom of speech and the right to peaceably assemble, but that protection usually does not cover non-expressive conduct, speech that is plainly likely to incite violence, or assembling for criminal purposes; therefore, the activities typically engaged in by private militias will not fall under the amendment’s protection. See, e.g., Vietnamese Fishermen’s Association v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982) (interpreting a comparable anti-militia statute in Texas, and referencing G.S. 15A-151). The court in Vietnamese Fishermen’s Association affirmed an injunction issued under the anti-militia statute to prohibit the activities of the “Texas Emergency Reserve,” a branch of the KKK who “associated as a military company or organization and have paraded in public with firearms within cities or towns of this State,” concluding that it did not violate the group’s First Amendment rights for the reasons listed above. Id.
Similarly, the Second Amendment protects an individual’s right to keep and bear arms, and even addresses the need for a “well regulated militia,” but the U.S. Supreme Court has clarified that this protection does not extend to bearing arms in the service of an unlawful, private militia. See District of Columbia v. Heller, 554 U.S. 570 (2008) (“the right to keep and bear arms was not violated by a law that forbade ‘bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.’ […] This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups”); quoting Presser v. Illinois, 116 U.S. 252 (1886). It’s true that North Carolina courts may interpret the corresponding state constitutional right more broadly, but the bearing of arms by an illegal militia group likely falls outside the scope of cases in which our state courts have chosen to make such a departure. Cf. Britt v. State, 363 N.C. 546 (2009) (validating an as-applied constitutional challenge to law prohibiting possession of firearms by a convicted felon, where the petitioner “affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety”).
I sincerely hope that no readers of this blog will find a need to return to this post in the future, but if the situation does arise it may serve as a useful resource for quick reference. Stay safe.