Idaho bill would repeal law banning private militias. Here’s how senators voted

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The Idaho Senate on Monday cleared a bill that would repeal a longstanding state law prohibiting private militias and paramilitary organizations.

The Idaho National Guard last year introduced similar legislation as part of an effort to clean-up unused state code. The anti-militia law is currently not enforced, but legal experts say removing the statute would limit obstructions to private militias. Similar statutes have been used to prosecute paramilitary activity in other states.

The state law forbids “a body of men,” other than the National Guard, to “associate themselves together as a military company or organization, or parade in public with firearms in any city or town” in Idaho.

The new version of the bill is sponsored by Sen. Dan Foreman, R-Moscow, a U.S. Air Force veteran and former Moscow police officer. Foreman said during a Senate debate Monday that repealing the statute would protect constitutional rights to assemble and bear arms.

“We will unfortunately always have those among us who will break the law and seek to cause unrest,” Foreman said. “However, the response to that should be one of due process. Our response should not be based in fear that leads to the abridgment of constitutional rights.”

Foreman’s bill would retain one section of the law, which forbids cities and towns from harboring militias.

The Senate passed the bill nearly along party lines. Two Republicans, Sens. Linda Wright Hartgen, R-Twin Falls, and Geoff Schroeder, R-Mountain Home, opposed it.

The bill heads to the House, which overwhelmingly passed the Idaho National Guard bill last year, before it died in the Senate.

Attorneys say current law is constitutional

Attorneys with Stoel Rives, a Boise law firm, and Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection in January sent a letter to legislative leaders opposing a previous version of Foreman’s proposal to repeal the anti-militia law.

The U.S. Supreme Court and other lower courts have upheld similar anti-militia statutes in other states against First and Second Amendment challenges, the letter said.

“Idaho’s prohibition against unauthorized paramilitary organizations is fully consistent with the First and Second amendments to the U.S. Constitution and with the Idaho Constitution and Idaho’s substantial regulation of military and paramilitary activity,” the letter said.

The Georgetown Law group in 2017 successfully sued the organizers of the “Unite the Right” white supremacist rally in Charlottesville, Virginia, using a similar anti-militia statute. A Virginia court rejected arguments that the rally organizers were being denied their First or Second Amendment rights.

Sen. James Ruchti, D-Pocatello, on Monday recalled when Aryan Nations, a neo-Nazi group, often held parades in Coeur d’Alene. Ruchti, an attorney and U.S. Army veteran, said similar groups forming militias and parading with weapons would chill the speech rights of Idahoans who oppose them.

“You show up to a parade, neo-Nazis are marching with weapons. Are you really going to express how you feel about them?” Ruchti said. “You’re at least going to think twice, maybe three times. Maybe you won’t even say anything.”