The Clinton administration considered requiring militia members to register with the federal government as part of a plan to strictly limit the activities of the groups following the Oklahoma City bombing, which killed 168 people on April 19, 1995.
The effort was laid out in a May 1995 memo released along with hundreds of other documents by the Clinton Presidential Library on Friday.
“The Militia Clauses grant Congress broad power to enact laws to organize a militia and ensure that it is able effectively to fulfill its statutory and constitutional role,” reads the memo which was written by four Justice Department attorneys.
Militia and paramilitary activity became a focal point following the bombing of the Alfred P. Murrah federal building in Oklahoma City, which was carried out by Gulf War veteran Timothy McVeigh, who had ties to such groups.
The Justice attorneys said that since little legal precedent existed on the issue, Congress could wield its authority to craft new interpretations of the Constitution to clamp down on the organizations.
“Because Congress has not previously sought to regulate the conduct of private actors under this power, there is no judicial precedent ratifying such action,” reads the memo.
“If so supported and absent other constitutional limitations, a statute could ban paramilitary activities outright, prohibit contributions to paramilitary organizations, or require paramilitary organizations to file reports disclosing their existence, their membership, an inventory of their weapons, and other relevant information regarding their instruction, drilling, and maneuvers,” the memo continued.
The document shows that the Justice Department considered using a loophole in the Interstate Commerce Clause which regulated the cross-state movement of firearms. The agency sought to take advantage of the fact that most firearms cross state lines.
“Congress’s authority under the Interstate Commerce Clause extends to the regulation — including the prohibition — of the use of firearms that have ever traveled in interstate commerce (which includes the vast majority of firearms) absent other constitutional limitations, allows Congress to regulate all of the activities of paramilitary organizations that involve firearms — such as training and maneuvers — and to require organizations and members to register an inventory of firearms used in such activities,” reads the memo.
“Congress alternatively could impose certain restrictions on such activity, or require persons wishing to engage in such activity to register with the government and provide certain information that is germane to Congress’s regulatory interests.”
The memo also stated that Congress would have the authority to require militia leaders to register with state and federal governments, and for local governments to release that information to the public.
The Constitution would also “not bar a requirement that an organization disclose any firearms and weapons that the organization owns or possesses.”
The memo does state that a prohibition on financial contributions to paramilitary organizations may be “problematic” because it could violate the First Amendment.
Other documents contained in Friday’s release show that Dick Morris, a Clinton adviser at the time, pushed hard for the new oversight.
In an Oct. 6, 1995 memo, Morris wrote “that Justice has decided not to revise or expand the FBI guidelines on militias, but rather only to issue a low-key internal clarification which does little to expand the FBI mandate.”
“The public overwhelmingly supports a significant expansion in the FBI’s ability to investigate militia groups,” Morris wrote.
“If you and the Justice department believe such an expansion would be in the public interest, I would recommend that we go ahead with it with a high profile announcement.”
“If Justice is ‘gun-shy’ as a result of the hammering the FBI has been taking from Republicans in Congress, it should not be,” Morris continued, arguing that the FBI was receiving “incredibly high marks” from the public for its “honesty and effectiveness.”
Ultimately, the regulations were not put in place.