During the American Revolution, militias — known as “Minutemen” — formed the backbone of the revolutionary forces. These groups, comprised of men aged 16 to 60, were tasked with serving, keeping arms and training for the defense of their towns.

While historical militias were state-operated and answered to the government, today’s militias operate without government regulation.

For Sen. Ed Markey, D-Mass., and Rep. Jamie Raskin, D-Md., militia groups evoke images of far-right extremist organizations like the Proud Boys and the Oath Keepers. Some of these groups’ members were involved in the storming of the U.S. Capitol on Jan. 6, 2021.

In response to such incidents, Markey and Raskin introduced the “Preventing Private Paramilitary Activity Act,” aiming to federally prohibit private militia activity. All 50 states have laws prohibiting unauthorized groups from engaging in activities reserved for the state militia, but the proposed bill seeks to enhance federal enforcement.

If enacted, the bill would criminalize armed militia groups engaging in harmful or deadly paramilitary techniques, interfering with government proceedings, violating constitutional rights, assuming law enforcement functions and training for such behaviors.

According to Eric Berger, an Earl Dunlap Distinguished Professor of Law at the University of Nebraska-Lincoln, modern militias differ significantly from their 18th-century counterparts. Berger noted potential constitutional challenges.

“One would be to argue that this is beyond the scope of Congress’s power,” Berger said. “I think that’s probably pretty unlikely to succeed since the Constitution gives Congress the authority to discipline the militia.”

Berger also stressed there could be concerns about this bill infringing on individual rights protected under the First and Second Amendments. Despite the challenges, he suggested that a narrowly written bill could withstand these constitutional tests.

“There is a Second Amendment right to keep and bear arms, but it’s not an unlimited right and it does not include the right to keep and bear arms to try and overthrow the U.S. government, or even to try to assume governmental functions or supplant the government,” Berger said. “For the First Amendment freedom of speech, there is obviously important freedom of speech in this country and that does include the right to criticize the government and criticize the government strenuously, but it does not include the right to advocate or incite attempts to overthrow the government or to incite other illegal behavior.”

Berger acknowledged the current political challenges in passing such a bill.

“I think it’s not an exaggeration to say that contemporary Congress is pretty dysfunctional,” Berger said. “So, the odds of getting it through the Senate and especially the House right now given that Republicans control the House, is unlikely. Not impossible but pretty unlikely.”