The preamble to the Second Amendment mentions service in a militia as a reason citizens have the right to keep and bear arms: “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.”
In his ruling, Benitez builds on the 2008 Supreme Court case D.C. v. Heller. In that landmark case, the Supreme Court held, as Justice Antonin Scalia wrote, that the amendment protects a right to possess a firearm unconnected to military service and that individuals are free to use such weapons for “traditionally lawful purposes, such as self-defense within the home.”
Benitez accepts this individual right, including to own assault weapons, but he adds what he calls “citizen militias” to the mix, which he defines as an “informal assembly of able-bodied, ordinary citizens acting in concert for the security of our nation.” The AR-15, he says, is an “ideal arm” for such purposes.
While distinguishing a citizen militia from a “state-organized militia,” the judge is vague about what, exactly, a citizen militia is. The examples he offers include the armed partisans led by Fidel Castro, Ho Chi Minh, and the Taliban and Iraqi insurgents. Although Benitez surely knows that the United States has a long history of vigilantism and mob violence, he doesn’t say which informal groups of armed citizens in this country might qualify and which would not.
That lack of specificity is a problem. Does a citizen militia include the protesters who occupied the Michigan State Capitol during the spring of 2020, posing with assault weapons slung over their shoulders? What about the activists who in the summer of 2020 briefly created Seattle’s Capitol Hill autonomous zone, where guards armed with AR-15s stood watch at the entrance and patrolled the streets? Kyle Rittenhouse, on trial for killing two people with a Smith & Wesson rifle in Kenosha, Wisconsin, allegedly viewed himself as part of a militia and claimed to be helping the police.