Stockpiling Weapons: Can Private Militias Receive Protection Under the First and Second Amendments?

• NCJ Number: 166974
• Journal: Thomas Jefferson Law Review Volume: 18 Issue: 1 Dated: (Spring 1996) Pages: 61-95
• Author(s): M S Barry
• Date Published: 1996
• Length: 35 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This paper discusses whether or not the Federal Government has the power under the U.S. Constitution to regulate the stockpiling of weapons by paramilitary groups.

Abstract

The discussion is premised on the assumption that private militias, including individual members acting on behalf of a group, are stockpiling weapons in preparation for a supposed civil war with the Federal Government, its agents, and officers. Linked with this assumption is the issue of whether the Federal Government has the power to regulate such stockpiling of weapons by paramilitary groups. In particular, the author considers possible defenses to weapons stockpiling under the First and Second Amendments to the U.S. Constitution. Among these defenses are issues that involve freedom of expression, the right to keep and bear arms (individually and collectively), the right to possess military weapons, and the right to associate with non- governmentally authorized military organizations. The author establishes the government's ability to manage any "arsenal building in preparation for resistance of potential domestic tyranny." The discussion begins with an examination of the term "private militia" and the distinction between the traditional and modern meaning of militia. It then shows that the First Amendment provides no protection to these groups when they seek a political voice through weapons stockpiling. Further, the fundamental governmental interests that provide the basis for regulation of weapons stockpiling is addressed. Finally, the author shows that Second Amendment jurisprudence does not limit the government's power to restrict the stockpiling of weapons by private militias. There is no need for Congress to create an "imperfect compromise" of anti-terrorism legislation, because the framers of the Constitution and those who have interpreted its meaning through the ages have already provided the answer to gun disobedience. 174 footnotes