This Idaho bill could repeal a law that bans private militias. It has surprising allies.
Ryan Suppe, Idaho Statesman
(Idaho Statesman) — Legal experts have raised concerns over a new bill, pushed by the Idaho National Guard and Gov. Brad Little, that would repeal a longstanding state law prohibiting private militias and paramilitary organizations.
While the anti-militia law is currently not enforced in Idaho, removing it would limit the obstructions to private militias, which operate outside state authority and are unaccountable to the public, legal experts say. Similar anti-militia laws have been used to halt paramilitary activity through the courts in other states, the Idaho Statesman reports.
Last month, the Idaho National Guard introduced the legislation, “relating to unorganized associations and parades,” that would repeal part of an Idaho code section that regulates the Idaho Military Division. The statute forbids “a body of men,” other than the National Guard, to “associate themselves together as a military company or organization, or parade in public with firearms in any city or town of this state.”
Maj. Stephen Stokes, general counsel for the Idaho National Guard, told a legislative panel that the statute “restricts fundamental rights and freedoms.”
Stokes called the restrictions “antiquated” and “clear violations” of both the U.S. Constitution and Idaho Constitution.
Emily Callihan, the governor’s communications director, told the Idaho Statesman the governor’s office approved the bill language and gave the green light to propose the bill this session.
“Gov. Little is a strong supporter of Americans’ First and Second Amendment rights, and the nearly 100-year-old statute that H475 will repeal is needless and inconsistent with Idahoans’ rights to peaceably assemble and bear arms in public,” Callihan said by email.
But Stokes’ legal opinion ignores previous court rulings and other parts of state law, according to the Institute for Constitutional Advocacy and Protection, a public interest law firm based in the Georgetown University Law Center, and Boise attorneys at Stoel Rives.
In a letter sent to legislators earlier this week, legal experts pointed out the statute aligns with language in both the U.S. Constitution and Idaho Constitution and protects the state against unauthorized paramilitary activity. It’s also not the only Idaho statute that seeks to deter militias.
“The prohibition against unauthorized paramilitary organizations is fully consistent with the First and Second Amendments to the U.S. Constitution and with the Idaho Constitution and Idaho’s substantial regulation of military and paramilitary activity,” the letter said.
Confronted with the legal analysis, the Idaho National Guard didn’t flinch.
Spokesman Lt. Col. Christopher Borders said by email the statute is “unrelated” to Idaho Military Division operations, and the bill was suggested as part of the Red Tape Reduction Act. The executive order Little issued in 2019 directed state agencies to find ineffective or outdated rules that should be repealed.
LAW EXPERTS RAISE CONCERNS OVER REPEALING PROHIBITION ON PRIVATE MILITIAS
The letter from the two law groups points to previous court cases, dating back to the 19th Century and as lately as 2018, that concluded bans on unauthorized militias do not infringe on free speech rights or the right to bear arms. The Idaho Constitution also forbids military groups from operating outside of state authority.
The 1927 Idaho statute that the Idaho National Guard seeks to repeal is “very similar” to statutes barring militias in 29 states, said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection.
“Some of the verbiage is identical,” she said by phone. “We have relied on similar statutes to enforce against militias elsewhere, and it’s been used historically.”
Idaho currently does not enforce the statute, despite seeing its fair share of militia organizations, from North Idaho’s Aryan Nations chapter to more recent military-style organizations such as the Three Percenters and Ammon Bundy’s People’s Rights. In 2020, armed vigilantes patrolled the streets of Coeur d’Alene, to protect the city from rumored rioting and violence, which did not materialize.
While Idaho has other statutes that deter paramilitary activity, the one that faces repeal remains important, McCord said.
One statute bars groups from training in techniques that can cause property damage or bodily harm with the intent to employ the training “in the commission of civil disorder.” Another statute forbids citizens from unlawfully exercising, or attempting to exercise, the functions of a law enforcement officer.
The three statutes together make a “statutory scheme that heavily regulates paramilitary activity in all of its different ways,” McCord said.
PREVIOUS U.S. COURT CASES CHALLENGE PARAMILITARY ACTIVITY
Following the 2017 “Unite the Right” white supremacist rally in Charlottesville, Virginia, in which one counterprotester was killed, the Georgetown Law group — representing the city, local businesses and neighborhood associations — successfully sued rally organizers. Consent decrees barred the organizers from engaging in paramilitary activity during rallies and protests.
The lawsuit was based on a state constitutional provision and state statutes similar to those that exist in Idaho. The Virginia court also rejected arguments that the rally organizers were being denied their Second or First Amendment rights.
States’ anti-militia statutes give teeth to constitutional provisions such as Idaho’s, McCord said.
“Having legislation that goes along with that constitutional prohibition is also important,” she said.
McCord, who previously specialized in national security as an assistant attorney general for the U.S. Department of Justice, said she was surprised to learn the Idaho National Guard introduced the bill to repeal Idaho’s prohibition on private militias.
“We usually find that within the military community, they strongly understand why it’s important for all the military to report to either the governor, in the case of the states, or to the president, as commander-in-chief,” McCord said.
The Idaho House Transportation and Defense Committee unanimously introduced the bill on Jan. 26. The bill has yet to have a full hearing.
During the introductory hearing, there was one question, from Rep. Scott Syme, a Caldwell Republican. He asked why the military was proposing the bill.
“During our annual red tape review, we saw this and decided to bring it forward to eliminate it,” Stokes said.