“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Twenty-seven words that have been interpreted in various ways over many decades, usually with the first thirteen left off. Well, let’s review those words as it pertains to New Hampshire.
What is a militia? Federal and state laws commonly refer to all able-bodied residents between the ages of 17 and 45 who may be called by the government to defend the United States or an individual state a “militia.” An organized militia consists of the National Guard and the Naval Militia. An unorganized militia consists of people who are not members of the National Guard or the Naval Militia.
A group of people who think themselves part of the “able-bodied residents” under state or federal law are not legally permitted to activate itself for duty. A private militia attempting to activate itself for duty, outside of the authority of the state or federal government, is illegal. 10 U.S.C. section 246
Are private militias protected under the Second Amendment? No. The Supreme Court ruled in 1886 and again in 2008, the Second Amendment “does not prevent the prohibition of private paramilitary organizations.” District of Columbia v. Heller 2008, 554 U.S. 570, 621 (citing Presser v. Illinois, 116 U.S. 252 (1886)).
Is it legal to act as a private militia in NH? No. All 50 states prohibit private, unauthorized militias and military units from engaging in activities reserved for the state militia, including law enforcement activities. Some states, which includes NH, also prohibit paramilitary activity during or by advancing civil disorder.
The New Hampshire Constitution forbids private military units from operating outside state authority, providing that “[i]n all cases, and at all times, the military ought to be under strict subordination to, and governed by, the civil power.”
NH.Constitution part 1, article XXVI
New Hampshire law makes it illegal for groups to organize as private militias without permission from the state. RSA 111:15 states “[n]o organization, society, club, post, order, league or other combination of persons, or civil group, or any members thereof, are authorized to assume any semblance of military organization or character by bearing or possessing rifles, pistols, sabres, clubs, or military weapons of any kind, or wearing a military uniform of any kind.” The statute has limited exemptions for authorized military units, color guards, and similar entities.
In NH, it is a felony for any person to “knowingly and falsely assume[] or exercise[] the functions, powers, duties, or privileges incident to the office of sheriff, deputy sheriff, state police officer, police officer of any city or town, or any other law enforcement officer or investigator employed by any state, country or political subdivision of a state or country.” RSA 104:28-a
Sadly, there are groups of people who use their Second Amendment rights to intimidate people who are exercising their voting rights. We don’t really see that here in NH, but just in case. . .
What to do if armed groups are seen near polling places or at a voter registration drive?
First, always document what you are witnessing.
Are they carrying firearms? If so, what type? If not, are they carrying other types of weapons?
What are the armed people doing and wearing?
Are they wearing insignia? If so, what does it say or look like?
Are they carrying signs or flags?
Do they seem to be patrolling as a law enforcement officer would?
Do they appear to be coordinating their actions, have a “leader?”
Are they stopping or talking to people outside of their group?
Do they appear to be provoking or threatening violence? If so, what are they doing specifically?
Are people turning away from the polling station after seeing or speaking with them?
Don’t engage, just contact your local police or sheriff’s department.
This information is taken from Georgetown Law.