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What legal standing do armed civilian groups at protests have?

This summer has seen mass protests stretch across the United States, some of them yielding vandalism and violence. The presence of armed civilian groups at these demonstrations seems to be on the rise, further raising the stakes in situations already tense. Amna Nawaz talks to Georgetown University’s Mary McCord, former Justice Department acting assistant attorney general for national security.

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  • Amna Nawaz:

    For a closer look at the protests, and those armed groups showing up in response, we turn now to Mary McCord. She's legal director at the Institute for Constitutional Advocacy and Protection. She's also a law professor at Georgetown University, and formerly with the Department of Justice as acting assistant attorney general for national security.

    Mary McCord, welcome back to the "NewsHour," and thanks for being hear.

    We should mention it has been 14 weeks now since George Floyd was killed. And, as was just reported, in the hundreds of protests, they have been overwhelming peaceful, but things have taken a turn, as we saw in Portland and in Kenosha, now much more deadly, in some instances.

    Do we know — very briefly, do we know why that is?

  • Mary McCord:

    Well, I think there's a lot of different contributing factors, but certainly the violence we saw recently in Kenosha was, at least in large part, attributable to the private militias that took it upon themselves to do what they called protecting property, but they did so without any authority.

    They came heavily armed. They weren't answerable to governmental entities or to really anyone other than themselves, and they created a permissive environment, where others, including the 17-year-old, who may or may not have actually been officially part of any of the militias that came, but nevertheless was a hanger-on, they created this permissive environment that resulted in tragedy.

    And I think we have seen more and more across the country, at peaceful protests, at protests against racial injustice, we have seen more and more self-proclaimed and self-professed militias showing up, ostensibly to protect property, but with no authority, heightening tensions, intimidating people, and sometimes resulting in violence, like we saw in Kenosha, Albuquerque, Portland and elsewhere.

  • Amna Nawaz:

    And I want to ask you, Mary, specifically about a couple of those cities.

    But, before we move on, I want to ask you about the word militia, because there's been a lot of question about why we use this term to refer mainly to groups of armed white men, but rarely armed black men or any other group. Do you know why that is?

  • Mary McCord:

    Well, I can't tell you whether it had any sort of racial basis.

    Militias, the term goes back, of course, to the founding of the country, and, at that time, referred to all sort of able-bodied white men, frankly, between certain ages. It didn't include white in it, but that's who predominantly the landowning people were in the country at the time.

    And so I think it has historical roots. But militias have never been — private militias have never been lawful. To the extent militias have ever been lawful, they are only in service of the state or the federal government. So they can only be called forth by the state or the federal government.

    As you indicated, when we talk oftentimes about people of color having armed groups, other terms might be used for those groups, including terms like gangs. So, I think what has devolved over the course of time is something that does tend to break down somewhat racially.

    And I would also add that the militia groups, they fancy themselves as patriots and suggest that what they're doing is actually in furtherance of the Constitution, when it really is nothing of the sort.

  • Amna Nawaz:

    So, Mary, the groups in Kenosha, for example, will argue that they're protected under the Second Amendment to be there and armed and help protect the community. What do you say to that?

  • Mary McCord:

    Well, the Supreme Court has actually been quite clear, back in 1886 and as recently as 2008, that the Second Amendment protects an individual right to bear arms for one's own individual self-protection, but does not prevent states from prohibiting private paramilitary organizations.

    And that's what those groups were. They were private paramilitary organizations. The Second Amendment doesn't protect their activity in Kenosha or elsewhere.

  • Amna Nawaz:

    So, if they're not supposed to be there, whose job is it to enforce that they are not there and not armed in the way that they are?

  • Mary McCord:

    Well, there certainly are state authorities that could enforce that. And state law in Wisconsin prohibits — not only does the state constitution prohibit rogue militias, rogue militaries that aren't answerable to the governor, but it also prohibits falsely assuming the functions of a public official.

    And so, when those militias were essentially arrogating to themselves law enforcement responsibility, the responsibility for protecting property, they were falsely undertaking the functions of law enforcement that they have no authority to undertake.

  • Amna Nawaz:

    So, when you look at what happened in Portland, for example, the protesters will say they have the right to peaceably assemble. So will the Trump supporters who drove through in those caravans.

    Who is to stop it before it gets to a violent, potentially deadly clash?

  • Mary McCord:

    This may require cities, and maybe even with the help of the state and even the federal government, if necessary, to actually enforce the types of time, place and manner restrictions that are permissible under the Constitution in order to allow for peaceful protests.

    That means things like not allowing militias, not allowing violence, not allowing firearms where it's possible to ban them. So those are the kind of things that law enforcement and government officials need to be able to enforce, although it's very difficult, given the spontaneity of some of the protest activity that we have seen.

  • Amna Nawaz:

    And given that tensions also keep rising.

    That is Mary McCord of the Institute for Constitutional Advocacy and Protection.

    Thank you very much, Mary.

  • Mary McCord:

    Thank you.

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