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Legal Experts Warn Against Allowing Militia Activity To Continue In Louisville

J. Tyler Franklin

A panel of legal experts is warning that the city of Louisville needs to take legal measures to prevent further action by militia groups, including right-wing militias such as the “Three-Percenters” and the NFAC, a new national Black militia.

“This is not protest in America,” Mary McCord said referring to the convergence of opposing militias in Louisville Saturday.

McCord is the legal director of Georgetown University’s Institute for Constitutional Advocacy and Protection (ICAP), which helped advise the City of Charlottesville in preventing militia groups from returning after the 2017 Unite the Right rally. She was speaking as part of a panel Wednesday hosted by ICAP and moderated by NPR’s Michel Martin.

“This is not a peaceful assertion of First Amendment rights. This is not what we want to protect. This is reckless, and it’s dangerous,” she said.

Right-wing militia groups such as the “Three-Percenters” have had a presence during protests over the police killing of Breonna Taylor. Some said they were there to “provide security” and protect property from protesters. Many came to Louisville on Saturday because they said they were concerned about the presence of the NFAC, a Black militia.

Meanwhile many Black protesters said they saw the NFAC as a protective presence from police and white supremacists. The NFAC leader, John “Grandmaster Jay” Johnson, called for answers in the Breonna Taylor investigation. He also urged residents to take up arms, and threatened the city with violence if his demands were not met.

Police separated the two groups with barricades, and the day ended without armed conflict.

McCord and ICAP have sent a letter to Louisville Mayor Greg Fischer and city leaders offering free legal assistance to help the city regulate private paramilitary activity, “while preserving constitutional rights during public protests and demonstrations.”

“It’s wrong for the activity not to be challenged now by local officials, whether it’s right-wing activity or left-wing activity,” McCord said.

After the Unite the Right rally, ICAP represented the City of Charlottesville, and won several court orders preventing militia members from returning to the city in armed groups.

According to McCord and ICAP, a number of Kentucky laws prohibit private paramilitary activity. One statute she cites states reads: “no persons other than the Kentucky National Guard or Kentucky active militia shall associate together as an armed company or drill or parade with arms without permission from the Governor.”

Furthermore, McCord said the Second Amendment does not prevent Kentucky from enforcing these laws.

“There’s a notion or mythology out there about the Second Amendment, particularly in open-carry states…that that means you can carry a weapon, anytime, for whatever purpose in any way, including as part of a militia. And that is exactly the opposite of what the Supreme Court has said,” McCord said, referring to a 2008 majority opinion in D.C. v. Heller , which reads “the Second Amendment] is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

During the panel, McCord and other experts warned that cities need to use existing statutes to curb paramilitary activity from any group, no matter the political ideology.

“It is not a left-wing or right-wing thing to be armed,” attorney Steven Schulman said. “It is something that is unfortunately a symbol of a breakdown of civil society. And that’s what we’re trying to make sure that we don’t have happen here.”

Schulman is a pro bono partner of the law firm Akin Gump Stauss Hauer & Feld, which helped organize other firms to advise cities in regulating militias.

“We are, I think, at a dangerous moment in our history,”  Bernalillo County, New Mexico District Attorney Raul Torrez said.Torrez is suing to prevent a white supremacist militia known as the New Mexico Civil Guard from organizing in his county.

“It is not for self-appointed armed groups to mediate conflict because we all know that eventually it will break into combat, into armed conflict,” he said.

A spokesperson for Fischer said his office has reached out to ICAP to schedule a discussion.

“The Mayor is interested in exploring any effort that enhances our efforts to protect public safety while also preserving people’s First Amendment rights to protest,” spokesperson Jean Porter wrote in an email to WFPL News.

Correction: An earlier version of this article incorrectly stated that ICAP was formed in response to the Unite The Right Rally in Charlottesville, Va. The timing of the center’s launch in Aug. 2017 was coincidental with the rally, but it was not formed in response.

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