Militia enabling bill comes at a dangerous moment. Lawmakers should reject it
Lawmakers should reject a bill that’s in front of the House Transportation and Defense Committee. House Bill 475 would repeal a section of Idaho Code that bans private militias and armed parades.
The bill, introduced with the backing of the Idaho National Guard and Gov. Brad Little, has been opposed by legal groups that have used similar laws in other states to push back against organized paramilitary groups, particularly at the “Unite the Right” rally in Charlottesville, Virginia, famous for groups of torch-bearing white men chanting: “Jews will not replace us.”
Maj. Stephen Stokes, who presented the bill on behalf of the Idaho National Guard, testified that his organization was bringing forth the legislation to comply with Little’s Red Tape Reduction Act, an executive order he signed in 2019.
The guard’s stated reason for bringing the bill doesn’t quite add up. That order deals solely with administrative rules, not at all with Idaho Code. So bringing legislation is strictly outside the scope of the order.
Stokes stated that the guard also wanted to repeal the bill because it violates the U.S. Constitution.
If you think “original intent” is an idea that’s taken seriously in right-leaning legal circles, this incident should be enough to disabuse you of the notion. Here, the First Amendment’s protection of free speech and assembly has been combined with the Second Amendment’s notion that citizens should have the right to bear arms so they can be part of a well-regulated state militia. And sure as two plus two equals five, this is taken to imply that maintaining a private army is constitutionally protected.
This flies in the face of long-standing U.S. Supreme Court decisions, which find that states have a right to prohibit militias. This is not some new idea, a product of “judicial activism.” That was the court’s finding in the 1886 decision Presser v. Illinois.
Idaho’s statute is not unique. It’s quite a common one in states throughout the nation. So the notion that prohibiting private armies from training and assembling is unconstitutional is a legal novelty.
Idaho, more than most states in the nation, would be better served by reviving this seldom-enforced law than by repealing it. In the past few years, armed groups have disrupted meetings, had negligent discharges during rallies and occupied Coeur d’Alene to prevent an invasion of imaginary Antifa supersoldiers, to name a few incidents. Several Idahoans have been charged in connection with the Jan. 6, 2021, riot at the U.S. Capitol.
But don’t expect the Idaho Legislature to act sensibly here. Far too many members are plainly sympathetic to the militia movement.
- Rep. Chad Christensen, R-Ammon, lists his affiliation with the Oathkeepers, key players in the attempted insurrection on Jan. 6, on his official legislative biography.
- Rep. Dorothy Moon, R-Stanley, led lawmakers in a 2018 standing ovation for Three Percenter leader and Bundy Ranch sniper Eric Parker, who had recently pleaded guilty to a federal charge stemming from an armed standoff with federal law enforcement officers.
- Lt. Gov. Janice McGeachin has posed for photos with members of the militia and administered an oath at one of their rallies.
So it isn’t surprising that such a bill would arise in the Idaho Legislature. What is surprising is that it would be backed by Little.
Perhaps he sees it as a way to prove his bona fides with the far-right wing of the Republican Party, even if it loses him a bit of credibility with the center. Perhaps that is understandable as a short-term political calculation.
But in the long term, this bill wouldn’t do anyone any good — Little least of all.