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