This week may have been a turning point for democracy. With the conviction of Steward Rhodes, for the charges of seditious conspiracy and terrorism, the US courts have shown that there are limits to what right wing militias can do. Oath Keepers and Proud Boys who took part in the January 6th attack on the US Capitol are being charged and convicted. For a while, it didn’t seem like this would happen.
For a time, it seemed that politically motivated displays of force were protected by a combination of the First and Second Amendments and in many states (Rhode Island is a happy exception), the combination of Open Carry and Stand Your Ground Laws. In this scenario the First Amendment protects political speech, the Second protects the right to bear arms, Stand Your Ground laws allow individuals to shoot anyone they believe is threatening them, and Open Carry laws allow weapons at protests.
We got to see this in effect at the 2017 Unite the Right rally in Charlottesville, where we were terrified by images of men in Nazi uniforms, carrying automatic weapons and brawling with counter demonstrators. In the aftermath, the Commonwealth of Virginia has proposed prohibition of firearms/ weapons of any kind within a 10 block radius of a protest. We can urge our state governments to repeal Stand Your Ground and Open Carry laws, or at least to put in place a policy prohibiting firearms and weapons in proximity to protests. This policy could address the concerns of the National Police Foundation that firearms at protests are becoming normalized. This policy might also have prevented Kyle Rittenhouse from killing two men at a Black Lives Matter rally in Kenosha, WI. Still, there is clearly not a consensus that even Rittenhouse’s actions should have been prevented, as indicated by Marjorie Taylor Greene’s nomination of him for a Congressional Medal of Honor.
Subsequent events, including the January 6 assault on the Capitol and the plot to kidnap Michigan Governor Gretchen Whitmer, seem to have been bracing enough to clear away our muddled thinking and permit arrests, charges and convictions. It turns out that the First Amendment does not protect “true threats and advocacy of imminent lawless action” (The First Amendment Encyclopedia). And, the Second Amendment doesn’t actually protect private militia’s rights to bear arms–in fact it doesn’t even protect the existence of private militias. The inclusion of the phrase “a well regulated militia” refers to militia regulated by the government, like the National Guard. Every state has laws prohibiting private paramilitary organizations.
Still, so far these laws are not being enforced–and Federal legislation prohibiting paramilitary organizations is needed (justsecurity.org). Both the FBI and the Department of Homeland Security are concerned about the risks of domestic terrorism by extremists and illegal militias. But the US Senate has not passed the Domestic Terrorism Prevention Act of 2022 which the House of Representatives did pass last year. The Senate vote was 47 for, 47 against and 6 not voting. We can press our Senators to pass this legislation–the information regarding who voted for and against is readily available on the US Senate’s website.
As we take on preventing domestic terrorism, we should not lose sight of the role that hate speech and conspiracy theories are playing in stirring up violent extremism. Militias multiplied and hate crimes increased substantially with the election of our first Black president. The birther movement spread the conspiracy theory that Barack Obama was not an American and that he was going to take away our rights and our guns.
More recently, Donald Trump encouraged militia members to “LIBERATE MICHIGAN,” asked the Proud Boys to “stand back and stand by” and, of course, pushed the conspiracy theory that the election was stolen from him–culminating in the January 6th attack on the Capitol. I think we need to take another look at this and other hate speech and conspiracy theories–to determine if they are true threats or advocacy of imminent criminal action. Let's hope that our courts are able to charge and convict those who are spurring violence and domestic terrorism. It seems much more likely after this week’s conviction and sentencing.