Since before our nation’s founding, factions of private citizens have organized into groups, deemed themselves militia, and claimed a right to act outside the direction or control of any government. Often referred to as private militia, their activities include organized training with firearms, explosives and tactics.
The question is whether this kind of training is legal in Pennsylvania.
Pennsylvania has a statute that ostensibly prohibits “paramilitary training.” But the statute does not define the term “paramilitary.” The courts, when confronted by an undefined term in a statute, will give the term its ordinary meaning. However, the term “paramilitary” is vague even as it is used in common parlance. It generally refers to an unofficial force organized along a military pattern, or military in appearance, that stands as a force available for use as a military. It comes from the Latin para, meaning “near” or “resembling,” and militaria, meaning “of soldiers or war.” There is no case law that I have found defining the term. The best I can say, therefore, is that if a group looks like it is organized along military lines, it is likely going to be found to be “paramilitary.” But in the end, it does not appear to matter whether a particular group is “paramilitary” or not.
The Pennsylvania statute is as follows:
18 P.S. § 5515. Prohibiting of paramilitary training
. . . .
(b) Prohibited training. —
(1) Whoever teaches or demonstrates to any other person the use, application or making of any firearm, explosive or incendiary device or technique capable of causing injury or death to persons, knowing or having reason to know or intending that same will be unlawfully employed for use in, or in furtherance of, a civil disorder commits a misdemeanor of the first degree.
(2) Whoever assembles with one or more persons for the purpose of training with, practicing with or being instructed in the use of any firearm, explosive or incendiary device or technique capable of causing injury or death to persons, said person intending to employ unlawfully the same for use in or in furtherance of a civil disorder commits a misdemeanor of the first degree.[1]
The statutory definition of civil disorder is also relevant for purposes of understanding what is prohibited:
8 Pa.C.S. § 5515(a). Civil disorder.
Any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.
So, the State Legislature has avoided the definition of “paramilitary” altogether, and instead described certain kinds of training under certain circumstances and declared that sort of training to be illegal. Whether the group conducting that kind of training is “paramilitary” or not seems to be irrelevant.
The statute makes training illegal only where the trainer knows or has reason to know the firearms or explosives will be used unlawfully in, or in furtherance of, a civil disorder, or the assembled trainees intend to use them unlawfully in or in furtherance of a civil disorder. It follows that if your group is not assembled to train with firearms or explosives while knowing, having reason to know, or intending those firearms or explosives will later be used unlawfully in or in furtherance of a civil disorder, then you are not violating this statute.
As a case in point, I have spoken with members of a Pittsburgh area group who explicitly refer to themselves as a militia, and who “drill with arms.” Their declared purpose is to be ready to intervene in large demonstrations to “assist the police,” and to protect private property when demonstrators become disorderly. There are a number of such groups active in Pennsylvania.
Since these fellows had common sleeve insignia, were decked out in military gear (such as plate carriers, drop holsters, and chest rigs for magazines), and since they called themselves a militia, I would regard them and their organization as paramilitary. But, as we have seen, whether they are a “paramilitary” is not important to the statute. What matters are their knowledge and intention at the time they train. Do they know or have reason to know that their firearms will later be used, unlawfully, in or in furtherance of, a civil disorder, or do they intend such use?
These fellows did anticipate a large demonstration someday, where some or all of the participants are taxing police resources to the point where the police need their assistance, or where property is in need of their protection. This sort of disturbance certainly fits the definition of a “civil disorder.” And it is certain they intend those firearms to be used “in” that civil disorder. So, what it comes down to in their case is whether they intend those firearms to be used “unlawfully.”
If you train to be ready to use firearms during a future civil disorder, I would caution you to be very sure that your idea of what is lawful falls in line with the Commonwealth’s definitions of what is lawful. You may actually intend to act only within the law, but through ignorance or mistake include unlawful activity within your plans.
For example, hiring yourself out to use (or potentially use) firearms to protect other people’s private property makes you private, armed security. To do that without a state mandated Act 235 certificate is unlawful. So, training to act as private armed security in the course of some future “civil disturbance” without the required state certification would, on its face, fall within the conduct the Statute prohibits.
Similarly, it is illegal for someone who is not a sworn peace officer to interject himself into police action without first being officially deputized, or without being expressly asked by a police officer to assist that particular officer in a particular situation. Therefore, intervening to assist the police in a civil disorder without being so deputized is unlawful, and training to do that falls within the definition of what is prohibited under the paramilitary training statute
In contrast, training with the intention of later obtaining an Act 235 Certificate to act as private security, or training in anticipation of being properly deputized to assist the police, is not training to later do anything unlawful and, in my opinion, does not violate the statute.
The question of what one intends with respect to some hypothetical future event is always problematic. And the question is still open whether one who was planning to do something they did not know was unlawful (e.g., the absence of an Act 235 certificate) “intended” to use the training for an unlawful purpose. Of course, if people shoot their mouths off on the Internet about some patently unlawful objective, that clears things up.
So, there is nothing unlawful, wrongful or untoward, about a group organizing, dressing up and calling themselves a militia. In fact, getting together in this manner to pursue common ideas or objectives is protected activity under the First Amendment to the U.S. Constitution, which protects both freedom of expression and freedom of association. Only training to commit or facilitate unlawful activity, in the context of some future civil disorder, is illegal under the statute prohibiting “paramilitary training.”
Note that training with others to jointly commit or facilitate any unlawful activity, whether in the context of a civil disorder or not, is criminal conspiracy. Being part of such a conspiracy makes everyone who agreed to train intending to use that training in the course of committing an unlawful act criminally responsible for the future crimes of any of those involved. So, if the guy next to you while training on the range later gets out of hand and does something terrible in the course of committing whatever (perhaps not-so-terrible) unlawful act you originally had in mind, you can be legally responsible for his actions.
This makes me wonder why a special statute identifying this one particular form of conspiracy to commit future unlawful acts was even necessary.
Also superfluous is an explicit exemption in the Statute for state agencies, gun clubs and private instructional programs:
18 Pa.C.S. §5515(d).
(d) Excluded activities. --Nothing contained in this section shall make unlawful any activity of the Game Commission, Fish and Boat Commission, or any law enforcement agency, or any hunting club, rifle club, rifle range, pistol range, shooting range or other program or individual instruction intended to teach the safe handling or use of firearms, archery equipment or other weapons or techniques employed in connection with lawful sports or other lawful activities
Teaching the safe handling and use of firearms “in connection with lawful sports or other lawful activities” obviously falls outside the definition of what is prohibited under the Statute. Conversely, if a gun club or private instructor were to teach the use of firearms knowing or intending that the training would be used unlawfully in or in furtherance of a civil disorder, the “exemption” of §5515(d) would not, by its terms, apply. My suspicion is this gratuitous provision was included as part of a political compromise at the time the law was passed, to mollify pro-gun constituents of some of the legislators.
In the final analysis, the statute is not limited to paramilitary organizations, prohibits conduct which would be unlawful pursuant to other laws, and seems to be to be entirely superfluous. Perhaps this is why I have not been able to find any record of any prosecutions under this statute.
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[1] A misdemeanor of the first degree is punishable by up to five years in prison, and results in a lifetime prohibition on the possession of firearms or ammunition.