Since 1983, “unlawful paramilitary activity,” has been a crime in Oregon. On July 18 Governor Tina Kotek signed House Bill HB 2572. This law creates a new civil cause of action against private militia groups. HB2572 does not create new criminal law.
Under the new law, an individual or group of individuals harmed by militia activity can file a civil cause of action against those that harm them. The law also authorizes Oregon’s Attorney General to investigate, and if necessary, to ask a court for injunctive relief to stop militia misconduct.
Opponents of HB2572 claim the bill violates the federal First and Second Amendments and the right to bear arms provisions in Article I, Section 27 of the Oregon Constitution. It does not. State and federal courts including the US Supreme Court have ruled this type of legislation constitutional.
In written testimony against HB2572 local radio host Rob Taylor, says the bill violates” the First Amendment right to the freedom of association.” The First Amendment does not protect associating that causes injury to other people.
Law-abiding gun owners should not fear Oregon’s private militia laws. Oregon’s unlawful paramilitary activities statute ORS1660 only prohibits specific activities that a person, “intends” or “knows” will be “unlawfully” used in a “civil disorder”. Lawful group activities with firearms are permitted. HB2572 does not expand the narrow scope of existing criminal law.
Denesa Rains, a member of the Citizens Restoring Liberty from Myrtle Point also gave written testimony against HB2572. She was one of the right-wing activists who harassed County Election workers last year. Ms. Rains said in her testimony “The anti-government founding fathers” gave citizens, “the ultimate right” of self-defense against the government. She also said, “The Militia was not limited to a government-sponsored fighting force.”
However, state governments including Oregon have the right to, “supervise” militia in their states. This is part of a long-standing legal tradition in America that all military forces, including militia, are controlled by State or Federal civilian governments. In a paper for the Brennan Center for Justice, Georgetown law professor, Mary McCord reviewed the second amendment militia clause. She concluded, “Since well before the founding a “well-regulated militia” has always meant regulated by the government, not private actors.” The right to bear arms section in Oregon’s Constitution also says, “the military shall be kept in strict subordination to the civil power.”
In 1886 Presser v. Illinois the US Supreme Court upheld the constitutionality of an Illinois law that banned private militias unless authorized by the Governor. The court found the law did not violate the right to bear arms or of peaceable assembly. The court said of militias, “Under our political system they are subject to the regulation and control of the State and Federal Governments, acting in due regard to the respective prerogatives and powers.” Both before and after Presser numerous state and federal courts have upheld this principle.
In written testimony supporting HB2572 Oregon’s Department of Justice reviewed state and federal laws pertaining to militias and concluded, “The only type of, ’militia’ activity that is sanctioned in Oregon is that which is regulated and controlled by the civilian government.” (Bolding in the original)
Americans are wise to be suspicious of government power. We need to understand that private militias can also threaten liberty and safety.
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