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Senate Bill To Prohibit Armed Guards in Church? A Deep Dive Into the Bill

Aaron Walker  |  8:32 PM on February 17, 2024
AP Photo/Damian Dovarganes

Today a number of people have been claiming that the Senate was considering a bill that would make church security illegal. For instance, you see these tweets:

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So, we start with the basic question: Is this true? Are they trying to ban church security? We admit when we saw it, we wondered if they would be so brazen in their hostility to two constitutional amendments.

Well, the short answer is they are not doing this directly, but the bill they are pushing would make many forms of private security illegal, including what is commonly used by churches. We liken it to a boss saying no one is allowed to wear headwear at work. Maybe it isn't designed to screw over orthodox Jews and other people who believe as a matter of faith they have to wear headwear, but it certainly has that effect.

As with any bill or law, you start with the text. It would create a new 18 U.S.C. § 2741, which would say:

(a) Offense.—It shall be unlawful to knowingly, in a circumstance described in subsection (b), while acting as part of or on behalf of a private paramilitary organization and armed with a firearm, explosive or incendiary device, or other dangerous weapon—

(1) publically [sic] patrol, drill, or engage in techniques capable of causing bodily injury or death;

(2) interfere with, interrupt, or attempt to interfere with or interrupt government operations or a government proceeding;

 (3) interfere with or intimidate another person in that person's exercise of any right under the Constitution of the United States;

(4) assume the functions of a law enforcement officer, peace officer, or public official, whether or not acting under color of law, and thereby assert authority or purport to assert authority over another person without the consent of that person; or

(5) train to engage in any activity described in paragraphs (1) through (4).

Now, it also talks about a ‘circumstance described in subsection (b)’ but rather than get bogged down in the details of what that means, we'll summarize by saying this is basically Congress pretending this has something to do with interstate or foreign commerce. As you might know, Congress is empowered in the Constitution to regulate interstate and foreign commerce, but the Supreme Court has allowed them to go far beyond any reasonable limits on the definition of what counts as interstate commerce. This instance is no exception—while it is theoretically possible to avoid coverage, in practicality it is almost impossible to do so.

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But we will dig into the definition of ‘private paramilitary organization’ because that’s where things get truly ridiculous:

(9) PRIVATE PARAMILITARY ORGANIZATION.—The term ‘private paramilitary organization’ means any group of 3 or more persons associating under a command structure for the purpose of functioning in public or training to function in public as a combat, combat support, law enforcement, or security services unit.

In other words, if three guys decide to defend a church—or any other place—and decides to make one ‘in charge’ so they can coordinate their behavior, they are a private paramilitary organization. 

Three.

Guys.

That’s all it takes to be a paramilitary organization under this law.

Of course, it doesn’t ban all private security and the like. The law contains exceptions, and one of them is:

(c) Exceptions.—Subsection (a) shall not apply to— …

(4) members of an organization that is authorized under Federal or State law to provide paramilitary, law enforcement, or security services training or to engage in paramilitary activity, law enforcement, or security services when performing the functions authorized by law and, in the case of paramilitary activity and law enforcement functions, when under the direction and control of a governmental authority.

So, it allows for private security, as long as it is ‘authorized by law.’ Which sounds like you have to comply with state regulations on private security. If you’re just a small church and three guys volunteer to watch the place, do you have to refuse that help?

And the law makes a distinction between ‘paramilitary activity and law enforcement functions’ which has to be under the direction and control of a government authority, and ‘security services’ which do not. But the proposed law doesn’t define those terms, which creates hopeless ambiguity.

For instance, most people would call the Secret Service a law enforcement agency. So, if a person is under the protection of the Secret Service, and a person aims a gun at the protected person, they will definitely shoot that person and rightfully so. But …  is shooting a potential assassin in order to protect a presidential candidate law enforcement action?

Meanwhile, Robert F. Kennedy Jr. has been denied secret service protection, which we have written about, here. Suppose RFK Jr. hires his own security and they see a man point a gun at him and they shoot the suspect? Are they engaging in law enforcement? Does that mean that RFK Jr. can’t even hire private protection unless it is under the control of the government?

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And certainly arresting a suspected assassin at the scene would seem like law enforcement action, which is exactly what Kennedy’s private security did on another occasion. So, would that have to be under some kind of government control? What if they told them to stand down and refuse to protect Kennedy?

That becomes a huge constitutional problem. Under the Due Process Clause of the Fifth and Fourteenth Amendments, a law can be voided if it is too vague. 

The law also contains a number of other exceptions. We won’t go into detail for all of them, but it has exceptions for the historical reenactment, veterans parades, and ROTC. One exception is funny for what is not included:

(c) Exceptions.—Subsection (a) shall not apply to—

(1) the armed forces of the United States, the National Guard, the Naval Militia, any regularly organized State militia, or any unorganized or reserve militia called into service by a State or the United States;

Anyone notice what is not included? Um, the police, and other law enforcement agencies. So, we have a question: is this a sneaky way to disband (or disarm) the FBI, the DEA, the BATF and all local police? Or did they forget that these things existed? Since leftists tend to like things like the BATF these days—after all, the confiscation of illegal firearms is a huge part of their mission—we will assume they just forgot about law enforcement. But it’s still funny.

Of course, the more basic part of all of this is that it infringes on the right to create or join a militia and we do believe that right is in the Constitution. One might point at the Second Amendment and there is nothing wrong with citing it, but we think the better argument for the right to a militia—besides the history of our revolution—is actually found in the First Amendment’s right of assembly. You have a right to peaceable assembly under the First Amendment and your decision to exercise your rights under the Second Amendment doesn’t negate that.

Which is not to say that everything in that statute would be covered by this nexus of the First and Second Amendments. You don’t have a right to ‘interfere with, interrupt, or attempt to interfere with or interrupt government operations or a government proceeding’—if ‘interfere’ is interpreted as it is elsewhere in the U.S. Code, so that genuine First Amendment activity is protected.

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We also think that there is a right to defend yourself in the Constitution that this infringes. Some say it is in the Second Amendment—and that can certainly be cited in support—but we would locate it in the Fifth. For instance, if a man is shooting at you, and the law purports to tell you that you are not allowed to shoot back, we believe that is depriving you of your right to life without due process of law. And if you have a right to defend yourself, then we think you equally have a right to hire people to defend you.

So, does it deprive churches of private security? Not by name—because that would violate the First Amendment’s religion clauses. But many churches don’t hire official security companies but rather just let a few volunteers protect their grounds, and that is likely to run afoul of this bill, should it become law. The effect of doing so is also to make protecting churches much more expensive—which inevitably means many churches won’t be able to afford this. This is being done less than a few days after an attempted mass shooting at Joel Osteen’s church in Houston, because of course. We don’t know whether the off-duty cop—who apparently stopped an attempted mass shooting by a transgender pro-Hamass activist—was even officially sanctioned by the Osteen’s church, but that case certainly highlights the need for churches to have security, as does the perennial problem of church burnings. Considering how often black churches are attacked, you would think Democrats wouldn’t want to burden their security.

So, it is definitely an assault on the right to form a militia. It also definitely seems to have the disproportionate effect of outlawing many common methods of securing churches. In other words, our analysis doesn’t make the claim this would disarm churches wrong, just that they are glossing over the nuances. And frankly, we think the original piece sounding the alarm on this didn’t gloss over this. We believe this controversy started with a piece from something called ‘Protestia’—which promotes itself as a ‘polemical news site that is dedicated to providing Christian news and discernment in an age of widespread censorship’ and they dug into the law with enough detail to show you how they were making their argument:

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Naturally this led to outrage and other reactions:

Pretty sure the measure wouldn't be terribly popular among Jews right now, either, given the rash of antisemitism we've seen since October 7, 2023.

That’s also a fair point. Under the original understanding of Congressional power, they would have no power in this area. We can only hope and pray that we return to that understanding.

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Anarcho-tyranny seems to be the popular term, these days.

We presume that he means Senate Democrats when he says ‘they.’ 

As we showed, it doesn’t prohibit church security in so many words, but it outlaws an approach to security that many churches take.

However, it would be as good at time as any to mention that very often state laws specifically prohibit carrying a weapon in church—often in terms that makes it so that even if they are authorized by the church to do so, it is still a crime. As noted in this article … 

… the Second Circuit just upheld an injunction invalidating one such law in New York State and we think that is right. Such a rule violates both the First and Second Amendment rights of citizens.

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Well, not unless Biden gets a second term. As we explain here, if he gets a second term, there is a very good chance he could flip the Supreme Court and that will be a disaster for First and Second Amendment rights.

Pretty much.

It’s probably a full-time job. 

Joking aside, what is the problem that they are trying to address here? Even if they didn’t like militias in general, they could probably target them by raising the minimum number of people for them from three to something like fifty. It’s bizarre to call three people a private paramilitary organization no matter what their conduct is.

***

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