An anti-extremist expert is warning Idaho’s top legislators that a bill under consideration would repeal the state’s main law banning private militias.
The part of state code at issue, which has been in place since 1927, prohibits groups other than the Idaho National Guard to organize as a militia, or “parade in public with firearms in any city or town of this state.”
During the bill’s introductory hearing on Jan. 26, Maj. Steve Stokes, general counsel for the Idaho Military Division, said the agency wanted to repeal this law as part of Gov. Brad Little’s (R) Red Tape Reduction Act.
“The restriction [sic] in that section are antiquated and are clear violations of the First and Second Amendments to the United States Constitution,” Stokes said.
Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law, sent a letter to House Speaker Scott Bedke (R-Oakley), Senate Pro Tem Chuck Winder (R-Boise) and other lawmakers this week.
In it, McCord and a group of Boise lawyers, including former U.S. Attorney Wendy Olson, argued the law is fully constitutional.
McCord’s group successfully sued a Pennsylvania militia in 2017 over its involvement in the deadly Unite the Right rally in Charlottesville, Virginia.
Their letter outlinesa U.S. Supreme Court case from 1886 that challenged a similar Illinois law. The ruling found it to be constitutional.
“Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law,” the ruling states.
In the landmark 2008 decision in District of Columbia v Heller,the majority opinion written by former Justice Antonin Scalia reiterated that finding.
Idaho’s Constitution also outlaws private militias, saying the “military shall be subordinate to the civil power.” That means the elected governor and state legislature hold the ultimate authority over Idaho’s military groups.
“The need for [militias] to be 'well regulated’ was well recognized,” the letter states, pointing to examples in colonial Massachusetts and New York laws.
According to an analysis from McCord’s institute,48 states have such language in their respective constitutions.
A former militia based in Blackfootattempted to legalize militias in Idaho through a ballot initiative in 1995. But an attorney general’s opinion found“a number of constitutional problems” with the proposal.
Emily Callihan, Little's communications director, said in a statement that the governor is a "strong supporter of Americans’ First and Second Amendment rights" and that the statute is "needless and inconsistent with Idahoans’ rights to peaceably assemble and bear arms in public."
Militias have risen to prominence in recent years in Idaho.
In 2019 on the steps of the Idaho Capitol, Lt. Gov. Janice McGeachin (R) administered an oath to a group of militia members almost identical to the one given to U.S. troops when they join the military.
The Real 3%ers of Idaho has endorsed McGeachin's candidacy for governorthis year. Its president, Eric Parker, pointed a rifle at federal agents during the 2014 standoff at Cliven Bundy's ranch and is running for a state Senate seat.
Another Bundy ranch standoff participant, Todd Engel, is running to become a state representative in North Idaho.
Bundy's son, Ammon, who led another armed standoff against federal agents at a wildlife refuge in Oregon in 2016, wants to become governor.
State Rep. Chad Christensen (R-Iona) previously mentioned his membership with the Oathkeepers in his legislative biography. Several members of that militia, as well as its leader, Stewart Rhodes, were charged with seditious conspiracy related to the Jan. 6, 2021 insurrection.
Lt. Col. Christopher Borders, a spokesperson for the Idaho Military Division, said the military division will share more information about House Bill 475 at a public hearing, though a date has not yet been set.
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