Balkinization: The New Militia Moment

The New Militia Moment

Guest Blogger

Jared Goldstein

Cliven Bundy had a very short-lived reign as a conservative hero. Two weeks ago, over 1000 armed protesters came out to support Bundy, forcing the Bureau of Land Management to back down from enforcing long-overdue grazing fees. Just as Bundy’s supporters were celebrating their victory over the big bad federal government, Bundy’s star crashed to earth when he was exposed as an old school racist, ranting that “the Negro” may have been better off under slavery than on “the government subsidy.”

Now that he’s been abandoned by his champions in the GOP establishment and the national media, it’s tempting to believe that the protests in support of Bundy can be forgotten too. But that would be a mistake. The Bundy Ranch protest reveals that significant elements within the conservative movement now openly cheer armed resistance against perceived federal overreaching.

A new militia insurgency has been brewing for a while. The Southern Poverty Law Center estimates that the number of militias and militia-supporting groups has increased almost ten-fold since President Obama’s election. Support for militias runs high in the Tea Party movement, and militia members form a significant constituency within the movement. Tea Party events frequently feature tables and speakers from the Oath Keepers, which claims to have enlisted 30,000 military and law enforcement personnel who have taken an oath to disobey a list of orders deemed unconstitutional, and Constitutional Sheriffs and Peace Officers Association, an organization that advocates the old Posse Comitatus philosophy that the county sheriff has a duty to repel federal officials whenever they encroach on county territory. Old-time militia cheerleaders from the 1990s—like Sheriff Richard Mack, who encouraged local militias to arrest IRS agents—have found a larger audience in Tea Party events and in appearances on Fox News than they ever had during the last militia moment.

The new militia moment arises out of an ideology best characterized as “constitutional nationalism,” which starts with the widely-held conviction that the Constitution embodies what it means to be American and asserts that militant action is needed because the core constitutional values are under attack by anti-American forces. Expressions of this ideology can be found everywhere in the conservative movement. Typical is NRA President Wayne LaPierre’s speech last week at the NRA annual convention. “Freedom has never needed our defense more than now,” LaPierre told a cheering crowd, because the government has been taken over by “anti-freedom activists,” who are committed to the destruction of America and “the core values that have always defined us as a nation.” With America under attack, it is now time to “stand and fight.”

It’s not merely the NRA, the Tea Party movement, and Fox News that has offered support for the new militia insurgence. The Supreme Court itself has given its blessing to the insurrectionist theory of the Second Amendment, a key part of the constitutional philosophy that undergirds the movement. Back in 1993, when the last militia movement was beginning, the theory was articulated mostly by relatively fringe figures like Gun Owners of America’s Larry Pratt who declared, “The Second Amendment ain’t about duck hunting. Long live the militia! Long live freedom! Long live a government that fears the people!” The Militia of Montana liked the slogan so much they put it on their t-shirts. In Heller, however, insurrectionist theory became part of our foundational law, as the Court repeatedly declared that the purpose of the Second Amendment is to enable citizens “to resist tyranny,” and to protect the people’s right to form “a ‘citizens' militia’ as a safeguard against tyranny.”

To be sure, many who accept the insurrectionist theory agree that armed resistance can only be justified as a last resort. As Judge Alex Kozinski explained, “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed.” The Bundy Ranch protest illustrates the problem with that theory. To paraphrase Justice Harlan, one man’s minor kerfuffle over grazing fees is another man’s doomsday. The new militia moment has arrived because a broad segment of the conservative movement believes that doomsday is today.

Jared Goldstein is Professor of Law at Roger Williams University School of Law. You can reach him by e-mail at jgoldstein at rwu.edu

Posted 9:12 AM by Guest Blogger [link]