When people read the section of Arizona’s Constitution on the right to bear arms, they usually focus on the stark guarantee of the first clause:
“The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired ...”
People rarely discuss the second part of Article 2, Section 26: “... but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.”
Every time I read about a border militia group operating in Arizona, I wonder: Do their activities violate the state Constitution?
This question arose again in recent weeks because of the hubbub surrounding an armed group operating in New Mexico that captured hundreds of Central American asylum seekers and handed them over to the Border Patrol. The incident captured the attention of a national public unused to the idea of border militia groups — unlike the audience in Southern Arizona.
We’ve known about citizen efforts to prevent illegal border crossings or to capture crossers since rancher Roger Barnett started doing it on the land he leased near Douglas, back in 1999. Soon after, a group called Ranch Rescue was formed, then the Minutemen and various other groups down to Arizona Border Recon, which operates in the Arivaca area today.
Many times, self-appointed border watchers have been arrested for committing crimes. Most notoriously, in 2009 Shawna Forde and two other affiliates of her fledgling militia group killed 9-year-old Brisenia Flores and her father, Junior Flores, in an Arivaca home invasion intended to raise money for their group. Others have been successfully sued.
But never, apparently, has a state agent tried to argue that their activity is prohibited by the state Constitution.
Should it be thought of that way?
I spoke with a handful of people this week to find out.
One, Charles Heller, a Tucson gun-rights activist, told me it doesn’t apply because, “No one is raising an armed body of men.”
“There’s nothing done about them because there’s nothing you can do constitutionally,” he said. “If they exceed the law, then you can do something. But doing something would be counter-indicated in most cases.”
Heller, who said he joined the Minutemen border-watch activities in 2006, said you could not fairly point to that as an armed body of men. It was a loosely organized group, some of whom were armed, he said.
Alan Korwin, a gun-law expert from the Phoenix area, pointed out that state law permits and regulates armed security guards, which in the case of large security companies could be viewed as an “armed body of men.” He also noted that while the constitution doesn’t authorize the organization of such a body, neither does it prohibit that.
On the other hand, Korwin added: “Could they enforce this? They can enforce anything.”
Like much of Arizona’s original Constitution, this section appears to be lifted from that of Washington state’s 1889 constitution. The intent at the time was to prevent railroads, mines or other employers from forming private armies to break strikes or otherwise enforce their will.
Using the Constitution against a self-appointed militia would probably be tough. As Paul Bender, a longtime Arizona State University law professor told me, one would have to seek an injunction or similar civil remedy against the militia group, citing this provision of the Constitution.
Pima County Sheriff Mark Napier has dealt repeatedly with groups of armed citizens near the border and doesn’t encourage them. But he said he has not considered the applicability of this section of the Constitution.
”The language you read to me sounds applicable, but you’d have to see if there’s applicable case law,” Napier said. The simpler solution, he said, is simply to police “those acts that are a violation of state law. That’s the easy thing.”
So, despite the state Constitution, militia members would likely have to commit a crime like kidnapping, trespassing, impersonating an officer or assault to face legal consequences.
GOP tax surprise
The chair of the Arizona GOP surprised many this week when she came out in support of asking voters if they want to increase the state sales tax for education.
What is going on with Kelli Ward, the former candidate for U.S. Senate who now heads the state Republican Party? She is the last person many of us would expect to stump for a possible tax increase, in this case from six-tenths of a cent per dollar to a whole cent.
Ward said she’s helping Republicans become the party of education funding and is aiming to keep the loyalty of suburban women who’ve been drifting toward Democrats.
But the Arizona Mirror and Yellow Sheet Report presented a compelling alternative explanation this week. They both cited sources saying Ward has been concerned about maintaining connections with the business-class donor base of the party, a group that has been supportive of education funding even if it means a tax increase.
It may not be a coincidence that Rodney Glassman, the former Democratic Tucsonan turned Republican Phoenician, has been pushing for the sales tax increase. His law firm, Beus Gilbert, held a fundraiser for the state GOP this week right after Ward announced her support for the tax increase.
Beard joins Miller
The newest member of Pima County Supervisor Ally Miller’s team is a familiar name in Tucson politics. Bill Beard, the former chairman of the Pima County Republican Party, joined Miller’s staff this week as a special assistant performing constituent service and research.
Beard has long been involved in county issues, serving for years on the Election Integrity Commission.
He also worked as a campaign liaison for the National Rifle Association during the 2018 campaign. He has been a landscaping contractor for 33 years.
Beard replaces Sandy Russell on Miller’s team. When I asked the Pima County administration about the changeover, spokesman Mark Evans said Russell turned in a notice that she was returning to a position in the county finance department. Upon receiving the notice, Evans said, Miller asked Russell to leave that day.
The county moved up Russell’s start date in her new job so she wouldn’t suffer a break in her work that could affect her county benefits or retirement.
Miller’s office didn’t return my call for comment.
Last week I wrote that D.C. politicians should be banned from visiting the Arizona-Mexico border because they only go there to get photos taken and reinforce their pre-existing opinions. This triggered a business idea from a reader who responded to me on Twitter.
Someone should build a permanent border-wall display in Tucson, this reader, who went by a pseudonym, suggested. They could rent it out to politicians for their use in advertisements and other propaganda. They could even hire actors in Border Patrol uniforms! This could be an economic-development idea: A new Old Tucson, but for border-wall visitors.