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Read in a historical context, the Second Amendment provides clear answers to only a few of the questions regarding the appropriate limits of state regulatory power to restrict organizing and training private militia groups. Moreover, a basic analysis of the original materials yields conclusions that may be disappointing to both critics and sympathizers of the private militia movement. Critics may be unhappy with the conclusion that the individual right to bear arms offers important protection to at least some activities of private militia members. Sympathizers may be equally disappointed with the conclusion that activities which include full-scale preparation for a military confrontation with the government are not protected by the Second Amendment.

A less obvious irony of the militia debate is that the First Amendment may provide the most effective means to protect militias against intrusive state regulation. Consider that many of those who join private militia groups object to constitutional innovation, especially in the area of expanding civil liberties for individuals and minorities. There is some irony in the fact that the First Amendment doctrines that seem likely to offer significant protection to private militia groups are among those that might be contested as exceeding the degree of protection contemplated by those who adopted the First Amendment. Ironies aside, difficult questions raised by the activities of some private militia groups may also provide the Supreme Court with an opportunity to think more carefully about the limits previously established concerning the freedom granted to potentially dangerous advocacy groups under the First Amendment. This Article will present how the Second Amendment may limit regulation of private militias, and how the First Amendment may also limit regulation of private militias. This Article offers a suggestive rather than exhaustive approach to how these constitutional amendments limit the extent to which the state may regulate militia activities. The Article concludes that carefully applying constitutional tenets can simultaneously protect individual rights and the safety of the community at large.

Publication Citation

58 Mont. L. Rev. 45 (1997).