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Are Citizen Militias Legal?

MICHEL MARTIN, HOST:

We're going to turn our attention now to acts of violence that have taken place during recent street protests. A little later this hour, we'll get the latest information from Portland, Ore., where one man was shot and killed as a pro-Trump caravan of cars was driving through the city.

But first, we want to return to that situation in Kenosha, Wis., where armed civilians inserted themselves into demonstrations just days ago. In the middle of it, two people were killed and another seriously injured. A 17-year-old has been charged in connection with that incident, and he's believed to have been part of one such group.

Those self-appointed security forces said they were in Kenosha to protect a service station. But these untrained and unaccountable civilian militias are breaking the law, according to Mary McCord. She is the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, and she is with us now.

Mary McCord, welcome. Thank you for joining us.

MARY MCCORD: Thank you for having me, Michel.

MARTIN: You recently wrote letters to the Wisconsin attorney general and to the mayor of Kenosha and other local officials explaining that Wisconsin law prohibits private paramilitary activity. Explain what's legal and what's not. I'm guessing that this varies state by state.

MCCORD: It does vary state by state. But one thing is consistent - all 50 states have some provision in their state law, whether it's their state constitution or their state statutes, that prohibits private militia, private paramilitary activity. And that's also the case in Wisconsin. In addition, many states, including Wisconsin, prohibit private individuals, untrained, unaccountable to civilian authority from taking on official functions - functions of an official public officer like a police officer without any authority.

And so in Kenosha, what we saw was the armed militias not only acting as paramilitary organizations but also, you know, arrogating to themselves official functions as peacekeepers or law enforcement officers that they have no authority to be undertaking.

MARTIN: So this is different from, say, if the owner of the gas station had a weapon, and he and his brothers, say, displayed their weapons in a way to defend their own property. What is it that crosses the line - the fact that they sort of presented themselves as a militia?

MCCORD: Yeah, this is a great question. So the Second Amendment does protect an individual right to bear arms for one's own individual self-protection and protection of their own property. What it does not protect is armed members of the community banding together as an organized police force, really. And, in fact, many people will ask the question, well, what about private security?

Well, private security in Wisconsin and in most other states - maybe every other state - is highly regulated. To be a private security guard, you have to have a license. You have to have insurance. You have to meet state criteria. And that's important because we see what can go tragically wrong when we have individuals who aren't accountable to the state - they're not law enforcement. They're not members of the National Guard. They're not even members of a licensed private security company - arrogating to themselves when and under what circumstances to deploy lethal force.

And we saw that, of course, with the 17-year-old. And, you know, some people have been saying, well, he wasn't actually part of that militia. He was, you know, a hanger-on. But that I think just illustrates the danger of private militias - because it does embolden others, hangers-on, to join them.

And the Kenosha guard and the other militia members - they weren't telling the 17-year-old to go home, to get out of there, you know, not to be with them. They essentially welcomed him into their armed, you know, defense of this property on Tuesday night, and the results were tragic.

MARTIN: Before we let you go, you know, we've seen that some in the conservative media, the far-right media and right-wing groups, are defending the shooting suspect. Predictably, there's been crowdfunding to raise money for his defense. And I just, you know, wonder what it means to you that this kind of vigilantism has become a political statement.

MCCORD: Yeah. Well, it's really unfortunate because vigilantism, private militia activity - you know, it's dangerous to public safety, and it's horribly threatening to constitutional rights. But you do see this breaking down along political lines, and it's very unfortunate.

And, you know, some of these militias, particularly on the right - they will claim that they are not ideological, that they are there as patriots to defend property and that they are, you know, not white supremacists. They're not aligned with those ideologies. But oftentimes, you don't have to scratch much below the surface to see some pretty racist, xenophobic commentary on pages like Facebook, Reddit, other social media by members of those groups.

And I don't mean to suggest that that's the cause of the breakdown of - you know, into more politically coarse discourse and divides. But clearly, that's a part of it.

MARTIN: Mary McCord is the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. She was also acting U.S. assistant attorney general for national security from 2016 to 2017.

Mary McCord, thank you so much for joining us.

MCCORD: Thank you, Michel.

(SOUNDBITE OF YOSI HORIKAWA'S "STARS") Transcript provided by NPR, Copyright NPR.