FAQ for Minnesota vs Arakawa and The 21st Century Militia Act

This is a work of fiction.

What is This All About?

Two different things have happened in Federal politics that will influence the structure of law enforcement and the rule of law in America as well as gun rights, gun control, training, and how the police and the FBI can address issues like domestic terrorism. It’s important to note that the Arakawa case in the Supreme Court and the Millennium Militia Act are distinct and separate events, though they overlap somewhat.

What is Minnesota vs Arakawa?

It is a Supreme Court case that was decided a few days ago, and it’s going to be a landmark case, as well as the first major Second Amendment related case since the Tanner case in 2033. To summarize a lengthy decision in a single sentence, it says that the combination of the right to bear arms, the right to free association under the 1st Amendment, and some other factors mean that the government can’t criminalize “the bearing of arms as a community or voluntary association” unless they are actually planning, doing or threatening to do a criminal act beyond just being an organization, having weapons, and training with them. You can also read the actual decision and its concurrence and dissents. As a note, it was decided 6-3, it is not a just-barely-edging-out-the-progressives case.

What is the 21st Century Militia Act?

It’s a federal law that was signed by President Fuentes on the same day as the Minnesota vs Arakawa decision was announced, and it reforms the 1903 Militia Act which basically established how the National Guard works for the last 141 years. It’s a pretty lengthy law which mostly modifies the finer points of how it works for the Federal Government to call up the National Guard. It goes into effect next year.

The thing that’s notable about the 21st Century Militia Act is that it is responding to the Arakawa vs McPatricks Supreme Court case, which did not get much press attention and involved details of the little-used State Defense Forces. However, the Arakawa vs McPatricks decision (it was indeed the same Taichi Arakawa, who has been involved in no fewer than three Supreme Court Cases to this date) included a side-note that “moreover, the unorganized militia represents the casual and organic capacity for defense of the country by its citizens, and the reduction of it to a mere recruiting category or a theoretical entity is not consistent with the text, history, and tradition of American constitutional law”.

The provision of the 21st Century Militia Act that is of most importance to the average citizen is that it makes the normal funding of a State’s National Guard (which is currently dependent on the National Guard meeting various standards) also depend on some vaguely defined standards regarding “Voluntary training of members of the unorganized militia” and “a system for mustering the unorganized militia”.

What Does This Mean, Though?

It’s not 100 percent clear. A lot of the effects of Minnesota vs Arakawa outside of Minnesota depend on how lower courts interpret the decision, and a lot of the effects of the 21st Century Militia Act depend on how exactly the federal government actually interprets it and what laws may be made in the future, as well as exactly what the state bureaucracies do. There are already at least three court cases against the latter coming from the states, though it’s not clear how they will shake out.

What can be said with a fair amount of confidence about Minnesota vs Arakawa:

Minnesota’s 2025 “Paramilitary Organizations and Training Act” and laws in several other states based on it are definitely overturned.
Vermont’s “Paramilitary Training Camps” law and some similar laws based on it, which forbid military-style training provided that it is to be used in a somewhat broadly defined “furtherance of a public disorder”, are probably overturned. Vermont already has a bill in progress to modify this bill to include a more narrowly defined standard of “a clear and present danger of a public disorder” and to note that a “public disorder” does not include “legally justified self-defense or community defense”.
A wide variety of laws in numerous states regarding “unauthorized military organizations”, “drilling in public”, or “wearing of uniforms” may be affected, though it’s unclear how much. The judgement specifically states that “wearing of clothing such as camouflage coveralls, webbing, or body armor without insignia of any government organization” is generally constitutionally protected.
Washington’s 2029 Military Simulations Act, which affects airsoft and similar mock battles, is definitely overturned (although it was already gutted by a preliminary injunction).
New York’s 2026 Terrorist Training Prevention Act, which affects airsoft and similar mock battles and also USPSA/IDPA and some similar shooting competitions is also definitely overturned.
Regulation of security guards is somewhat impacted as long as they are involved with a nonprofit organization. It remains to be seen how much of an effect this will have.

What’s not entirely clear about Minnesota vs Arakawa:

Exactly how broad the “clear and present danger” or “imminent lawless action” standards are.
How broad the latitude for actions by a “community self-defense organization” or “voluntary group of armed citizens” can be (and how much it can be affected by state or local law).
Some of the finer details for laws of evidence of intent to commit a criminal act.
Some details related to what “a broad view of pragmatic and responsible defense of one’s self and one’s community” means.
How all of this affects action rather than training or preparedness or constitution of an organization.

What can be said with some confidence about the 21st Century Militia Act:

States are expected to give some sort of consideration to military training of members of the “unorganized militia acting voluntarily”, i.e. ordinary citizens.
Average citizens who are not members of the regular military, reserves, National Guard, or state guards are probably going to have some kind role in national defense that they haven’t had since the 19th century.
There will probably be some kind of opportunities for said ordinary citizens to make some kind of use of military facilities for some kind of training, somehow.
The law is unlikely to go away entirely, and any replacement would have to address the same Supreme Court decision. It’s also unlikely that any state will flatly refuse to go along with it (and thereby lose a bunch of funding).

What’s not clear about the Act:

Basically all of the details.
How this will affect states that have historically followed restrictive policies on private ownership of firearms, on self-defense, etc.

Aren’t Militias Already Legal?

Yes and no.

After public controversies about the “Militia Movement” starting in the 1990s, there have been a lot of publications making a claim that “militias” or “paramilitary organizations” are illegal in every state, which is not entirely accurate (in many cases, the laws only outlaw organizations actually intended to do something criminal). On the other hand, it’s an established principle of American law that the “militia” does not refer to random groups of people acting on their own initiative, and that the unorganized militia or groups thereof is not unbeholden to the civil government.

The Arakawa decision uses the terminology “Bearing arms as a community or voluntary association”, “Community self-defense organization”, and “Voluntary and law-abiding group of armed citizens”, and while it does reference the “well-regulated militia” clause of the 2nd Amendment and the history of the American militia in the early Revolutionary War, it’s much more focused on the 1st, 2nd, and 9th amendments and their overlap. The Act uses the terminology “members of the unorganized militia (acting voluntarily)” and “defense by the unorganized militia of their homes and immediate communities”.

Doesn’t This Allow Domestic Terrorists Free Reign?

Not really.

First, the Act doesn’t do anything that would help domestic terrorists except that well-disguised groups might be able to have some access to training facilities. The Act allows this access to be regulated by the Federal government.

The Arakawa decision is clear that it does not permit “voluntary associations” to commit or plan to commit crimes, and it also makes a distinction between “preparedness for defense against crime or unrest” and “the actual plotting or preparation for a violent crime or insurrection against the laws of the United States”.

Definitely this limits what can be done regarding domestic terrorists. However, it does not “legalize domestic terrorism”, “give domestic terrorists immunity until they have actually killed someone”, or “prevent the government from investigating terrorist training camps”. The decision establishes that the laws can criminalize an armed group that is preparing for an “imminent lawless action” (using language echoing that of the decision that secured free speech rights for extreme political parties that have an abstract belief in a violent revolt) or when a group’s “intent regarding the present or immediately foreseeable situation represents a clear and present danger of a violent act.”

Nothing in either the Act or the Arakawa decision prevents the Government from monitoring or investigating groups that are suspected of plotting violence, or from charging people who plan violent felonies and commit some overt act related to them with conspiracy.

What is Known To Be Changing In The Near Future?

Some degree of “armed community groups” or “voluntary association of armed citizens” which are not directed towards the commission of crimes are now legal in every state.

In the time leading up to the passing of the 21st Century Militia Act, a number of reports were published by various organizations of the Department of Defense and Department of Homeland Security relating to a revitalized role for the unorganized militia, and some vague statements of policy were made. There are three types of actions under active consideration: options for members of the Civilian Marksmanship Program in Eastern states to make some use of some military training facilities, establishment of programs that would serve as feeders to the National Guard but also could support an “unorganized militia” community in its own right, and a program where the National Guard and sheriffs’ departments would work together to help people prepare to defend their communities against riots. All of these show some sign of possibly being set up in the next two years.

New York, Washington, Massachusetts, New Jersey, and Illinois are known to be working on bills to respond to this court case in the current legislative session, though unlike the attempts to functionally nullify Bruen or the “massive resistance” against Tanner, they mostly seem to accept the actual statement of the court case. I think you can compliance with the law to be an ordeal in these states and in the San Francisco region.