Idaho bill would repeal law prohibiting private militias

By Zach Hagadone
Reader Staff

A bill working its way through the Idaho Legislature would repeal the section of state code that explicitly outlaws private militias, triggering alarm from as far afield as the Georgetown University Institute for Constitutional Advocacy and Protection.

In a Feb. 7 letter addressed to Idaho Speaker of the House Scott Bedke and Senate President Pro Tempore Chuck Winder, attorneys representing Boise-based law firm Stoel Rives and ICAP wrote that the statute is not only consistent with Idaho’s Constitution and other laws, but according to numerous court rulings — including from the U.S. Supreme Court — does not infringe on the First or Second amendments.

An unidentified man carrying a long rifle and ammunition arrives at a protest held by teenagers at the Bonner County Courthouse on June 2, 2020. Photo by Ben Olson.

“Idaho’s prohibition on private paramilitary organizations is entirely in keeping with Idaho’s robust regulation of paramilitary and law enforcement activity,” wrote attorneys Mary McCord, of the Georgetown University Law Center, and Wendy Olson, of Stoel Rives and a former U.S. attorney for the District of Idaho. 

McCord and Olson concluded by characterizing House Bill 475, which would repeal part of Title 46, Chapter 8 of Idaho Code, as removing “a law designed to protect public safety against the threat of private paramilitary organizations unaccountable to governmental authorities.”

The bill went before the House Transportation and Defense Committee on Feb. 16, where lawmakers voted 13-4 to advance the legislation to the full House without a recommendation either for or against.

The current law, identified as 46-802 “Unorganized Associations Prohibited” and which has been in force since 1927, expressly prohibits groups other than the National Guard, the state militia when called into service by government order or otherwise constituted by the state or federal government from “associat[ing] themselves together as a military company or organization, or parade in public with firearms in any city or town of this state.” The statute also makes it illegal for municipal governments to support private military organizations with financial or material support.

About 10 residents from around the state testified before the committee — including Sandpoint Mayor and Idaho gubernatorial candidate Shelby Rognstad — with all opposed to HB 475 and some going further to say that the code section should be strengthened to include penalties and enforcement.

“I fully support our local sheriffs, police departments and Idaho National Guard,” said Rognstad. “We must respect the chain of command, which does not exist under a private militia.”

Boise resident Nicole Brown, who identified herself as an Air Force veteran and volunteer with Moms Demand Action for Gun Sense in America, said repealing the current law would “encourage armed intimidation and the open carrying of firearms in Idaho by allowing individuals to form a militia.” 

Maj. Steve Stokes, who serves as general counsel for the Idaho Military Division, presented the bill, which he said stemmed from Gov. Brad Little’s “Red Tape Reduction Act.” Since his election in 2018, Little has made striking laws off the books a top priority of his administration, routinely trumpeting the notion that Idaho is the least regulated state in the U.S. — a statement backed up by research from George Mason University, which reported in November 2021 that the Gem State has only 35,000 regulations in its code. 

HB 475 was one of a handful of statutes brought to the committee by the Idaho Military Division, all intended for the chopping block as an effort to reduce “legal barriers for Idaho people,” Stokes said.

He told the committee that the current militia-related law applies to civilians, rather than the operations of the Idaho Military Division; doesn’t contribute to the ability of the government and the Military Division to defend the state or help with disaster preparedness; and is “over-inclusive” with “vague” and “unenforceable” language.

While Stokes said in late January that the statute runs afoul of the First and Second amendments, as well as portions of the Idaho Constitution, he softened that assessment somewhat on Feb. 16, saying, “I acknowledge that there is case law … upholding provisions that are similar to 46-802,” yet later added that, “as written, I believe … it would have a hard time passing constitutional scrutiny.”

Furthermore, Stokes argued that the kinds of activities proscribed in the code section are already forbidden and penalized in the Idaho Terrorist Control Act, which makes it illegal to conspire “to injure, oppress, threaten or intimidate any citizens in the free exercise or enjoyment of any right or privilege secured to him by the constutitons or laws of the United States or the state of Idaho.” 

The Terrorist Control Act also prohibits the assembly of one or more individuals “for the purpose of training or instructing in the use of, or practing with, any technique or means capable of causing property damage, bodily injury or death with the intent to employ such training, instruction or practice in the commission of a civil disorder.”

For those who testified before the committee Feb. 16, the specific language prohibiting private militias was a critical reason why it should be retained. 

Saying that he agreed the current law is too vague “and should be tightened up,” Meridian resident and Army veteran Joe Evans added that, “We are already looking at a great degree of violence as a relationship to labor laws, racial issues, and a number of other things. … I feel that repealing this law at this time without a replacement in place would be bad form.”

Ben Saterlee, of Boise, said, “I can think of no time in our nation’s history when a law like this is more needed,” adding that repealing the statute would serve as a “greenlight” for vigilantism and intimidation.

It is also the same law that ICAP cited in a letter to Bonner County Commissioner Dan McDonald and Sandpoint Mayor Shelby Rognstad in June 2020 following the militia presence at a local Black Lives Matter demonstration. At the time, armed individuals claimed to be on hand to protect participants in the BLM march, but organizers — most of them in their teens or 20s — said they felt intimidated and did not welcome their presence. The number of individuals carrying firearms and in many cases wearing tactical garb increased in the late afternoon and evening, many of them traveling from out of the area and forming patrols ostensibly to guard downtown businesses from a rumored threat of damage.

“This isn’t a theoretical concern for us,” Rognstad told the committee, referring to the militia activity in June 2020. “Many people in the community felt harassed and intimidated. …This was a dangerous moment for our town.”

Testifying from Coeur d’Alene, resident Shawn Keenan called a similar militia presence in his community during the summer of 2020 an “occupation” by as many as 400 armed men and women whose goal was “simply to intimidate.”

“We were terrified, let’s just be honest,” he said.

Committee member Rep. John Gannon, D-Boise, said that parts of the current law are “very necessary,” particularly the stipulation that communities can’t fund or otherwise support militias. 

“I would be very concerned that a group might move into a very small city and … through an election influence city policy in a way to support a very influential militia group in that city.”

Ponderay Republican Rep. Sage Dixon, who also serves on the House Transportation and Defense Committee, told the Reader in an email ahead of the Feb. 16 meeting that, “Without delving deep into constitutional law, [the current statute] does appear to be an infringement on the right to assemble and the right to bear arms. 

“I also have worked on legislation, at the request of constituents, which was prohibited by 46-802,” he added. “I am not fearful of armed citizens exercising their constitutional rights, and am grateful for the proposed change.”

The bill now goes to the full House, though it was immediately unclear when lawmakers would take it up.