Key Militia Standoffs and Armed Revolution

Synopsis

This post records my exploration of gun-based events and groups that have positioned themselves against the federal government. The first half describes some well-known episodes. The second half explores some beliefs and scenarios for war against the federal government and the U.S. Army. These explorations consist partly of attempts to identify relevant facts, and partly of questions or criticisms of various views and actions.

Contents

PART ONE: STANDOFFS

The Bundy Standoff of April 2014
Ruby Ridge
Waco
Posse Comitatus
The Sovereign Citizen Movement
Montana Freemen
Republic of Texas
The Sagebrush Rebellion
The Malheur Occupation

PART TWO: CONCEPTS

Definition of Militia
Insurrectionary Interpretation of the Second Amendment
President Obama’s Response to Militia Gangs
An Example of Current Insurrectionism: Bob Owens
A Different Example: Whiteout Press and Domestic Terrorism
Oaths and Oath Keepers

SUMMARY AND CONCLUSIONS

.

******************** PART ONE: STANDOFFS ********************

This first part of this post summarizes a number of confrontational incidents and movements in which armed Americans, acting individually or in conjunction with various organizations or movements, have threatened and sometimes taken violent actions in opposition to the federal government or to specific federal agencies or laws.

Note that webpages change. If the following discussion refers to a webpage that no longer seems to say what it said at the time of this writing, it will often be possible to retrieve the form of that webpage, as of January 2016, by using the Internet Archive’s Wayback Machine.

The Bundy Standoff of April 2014

On April 12, 2014, Nevada rancher Cliven Bundy was joined by a crowd of people — eventually, more than 1,000, in Newsweek‘s (Bean, 2014) estimate. Many were armed. What drew their attention was an attempt, by the U.S. Bureau of Land Management (BLM), to round up cattle that Bundy had been illegally grazing for the past twenty years on federal land. Wikipedia reports that Bundy’s legal challenge to BLM’s position had failed and that BLM was now proceeding against him, as it would proceed against any of thousands of ranchers who obtain permits and pay fees for the opportunity to graze cattle on federal land. KLAS-TV Las Vegas (Knapp, 2014) reported on findings by its Investigative Team:

FBI agents have launched a formal investigation into alleged death threats, intimidation and possible weapons violations . . . [when] federal employees suspended their roundup of Cliven Bundy’s cattle . . . .

[T]he I-Team talked with Metro [Las Vegas police] officers who intervened to protect the lives of federal employees from the 400 or so Bundy supporters and armed militia members. Officers told the I-Team they feared for their lives that day because of the assembled firepower, and because many in the crowd had pointed weapons at officers, taunted them, told them they should be ready to die. . . .

FBI agents also spoke to an entire squad of Metro officers, who were on the scene to act as a buffer between the crowd and the BLM. Bundy supporters have insisted in emails and calls to 8 News NOW that no one in the crowd pointed weapons at BLM or Metro, but officers told the I-Team that is exactly what they saw, that many [had] guns set up behind women and children. . . .

It is illegal to point loaded weapons at federal agents, and most people know what would happen, if a suspect pointed a gun at a Metro officer in the Las Vegas valley.

KLAS-TV (Knapp, 2014) later reported on its interview with Las Vegas police sergeant Tom Jenkins:

“We were told, we’re going to go down there and we’re going to get between the BLM and the protesters. We were going, okay, we’ve been there before, but as we were driving up, it was like a movie set. It didn’t look real; people in the back of pickup trucks with rifles and shotguns,” Jenkins said. “It was hard to grasp that at the beginning.”

Approximately 30 Metro officers stood between a crowd of 400 heavily armed, self-described militia and the federal employees who had gathered a few hundred head of Bundy’s cattle. As the crowd swelled and tempers flared, many in the crowd tried to goad the police, hurling taunts and insults.

“They had no respect for authority. Everything that you can think of to call a human being, animals, everything,” Jenkins said. . . .

The crowd included former military men and ex-cops, people with various motives, their fingers poised just above the triggers of powerful weapons.

On that day, the agents backed down and left the scene. Many felt that this decision saved the lives of many officers and others.

Bundy was immediately supported by prominent Republican politicians and media representatives. Later, however, when he was seen to have made racist remarks, these high-profile individuals largely abandoned him. It appears they got the matter exactly backwards: they should have been less concerned about the seemingly racist remarks, and more concerned about the felonies. I have examined Bundy’s race-related statements in another post. They were certainly not politically correct. They enabled some Democrats to make some Republicans look bad. But as discussed in that other post, ridicule of those remarks did not seem compatible with the alleged interest in having a genuine American dialogue about race.

Meanwhile, about those felonies. It would have been helpful if those political commentators had kept their eye on the ball — had focused, that is, on the fact that hundreds of armed individuals threatened and prepared to kill a large number of law enforcement personnel. (That may sound like a politically biased statement. It isn’t. I’m not a Democrat. I have been just as critical of corruption on the liberal side. This is simply a statement about crime.)

To confirm one remark quoted above, Nolo Press (Schwartzbach, n.d.) indicates that federal assault crimes do include “intentionally pointing a gun at someone” if it happens (a) on federal land or (b) to federal officers anywhere. And there may also be criminal liability for some of those Republican politicians, as accomplices and/or accessories to the crime (see U.S. Department of Justice (DoJ); LegalInfo; Wikipedia):

  • That high-level political support seems to have emboldened Cliven Bundy to continue an apparently criminal act of grazing on federal land without a permit and without paying fees, knowing that such grazing was prohibited. One would not expect prominent Republicans to favor criminal behavior at taxpayer expense.
  • There is a question of whether those politicians used their influence to defer or prevent prosecution of those who pointed guns at federal agents in April 2014.
  • Liability as accomplices may also arise if those politicians’ support encouraged any participants in the April 2014 standoff to take up arms again at the Malheur Wildlife Refuge in January 2016 (below).
  • In those specific takeovers or in more general words or actions against the federal government, there may also be criminal liability for subversive activities (e.g., treason, below).

As of this writing, the FBI has not yet pressed charges against any of the gunmen present at Bundy’s ranch in April 2014. Why the special treatment? The answer lies in a history of federal standoffs going back many years. Newsweek (Bean, 2014) identifies five movements or incidents prefiguring the Bundy Standoff: Ruby Ridge; Waco; Montana Freemen; the Republic of Texas; and the Sagebrush Rebellion. The following sections summarize those and related topics.

Ruby Ridge

The Ruby Ridge episode was relatively simple, but continues to draw many references. As described in Wikipedia, Ruby Ridge, Idaho was the location of a cabin where a man named Randy Weaver lived with his wife and children. He apparently sought to live remotely, homeschool his children, and avoid outside entanglements, due in part to apocalyptic beliefs held by, at least, his wife. Weaver seems to have been drawn by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) into illegally creating a sawed-off shotgun, as part of an ATF effort to infiltrate a white supremacist group.

Matters became more complicated for Weaver after he failed to appear in court to respond to charges arising from that sawed-off shotgun. U.S. marshals and ATF agents engaged in a series of interactions and conflicts with Weaver and his family extending through much of 1991 and 1992. Briefly, the federal agents handled some of these events very poorly. Weaver’s son and wife were killed, as was one federal agent.

At trial in 1993, Weaver was convicted of nothing more serious than missing his court date and violating his bail conditions. Subsequent federal investigations resulted in a substantial out-of-court settlement, disciplinary proposals for 12 FBI agents, indictment of one FBI sniper on a charge of manslaughter (dismissed), and remarks by FBI director Louis Freeh regarding overreaction and “exaggerated application of federal law enforcement.”

Waco

According to Wikipedia, as of 1993, a religious group known as the Branch Davidians (BDs) occupied a compound some six miles outside the nearest edge of the Waco suburbs, under the leadership of David Koresh. Newspaper articles and other sources accused Koresh and/or his followers of statutory rape, polygamy, physical abuse of children, and stockpiling illegal weapons. ATF obtained search and arrest warrants for Koresh and several others. As at Ruby Ridge, ATF made further claims (involving e.g., a methamphetamine lab) that proved false.

In February 1993, ATF arranged a surprise raid on the compound, and went ahead with it despite indications that, in fact, it was not going to be a surprise. It was suggested but not confirmed that ATF started firing first. Gunfire continued for at least 45 minutes. Agents were killed. The FBI then took charge of a siege that continued for 51 days and involved hundreds of federal agents. Scholars failed to convince FBI agents that the confrontation was playing into the BDs’ apocalyptic end-times religious beliefs. Finally, the FBI commenced an assault that largely involved tear gas and punching holes in the walls of the compound. This assault used federal and state military equipment and advice, National Guard assistance, and ATF, FBI, and state law enforcement equipment. Fires broke out in three places. It appears that BDs had made preparations for, and may have set, those fires. Those fires killed some BDs. Rubble from the use of military tanks to break holes through the walls apparently blocked exits where many bodies were found. Those people seemed to have been trying to exit the compound to flee from the fires.

In subsequent review, given that BDs apparently had guns capable of piercing lighter armor, the use of military equipment was found to be legal. Altogether, the siege and the initial raid and final assault resulted in the deaths of four ATF agents and about 80 BDs, including Koresh and a number of children. The BDs were found to have accumulated numerous weapons and about 1.9 million rounds of ammunition. Texas authorities had the site bulldozed two weeks later, destroying the possibility of further forensic research and increasing the appearance of a cover-up. Eight BDs were convicted on firearms charges; five of those eight were also convicted of manslaughter; a ninth one plea-bargained a charge of forcibly resisting arrest. The longest time served in prison by any of the convicted individuals was about 14 years. The BDs’ civil suits were unsuccessful.

Critics rejected the subsequent report by John Danforth, who was reportedly being considered as the Republican nomination as vice president and, as such, was believed to be motivated to whitewash evidence of governmental misbehavior. According to Wikipedia, William Gazecki’s documentary, “Waco: The Rules of Engagement,” won an Emmy Award and was nominated for an Academy Award for Best Documentary in 1997. Gazecki and others (e.g., a book by Blackman & Kopel (2014) published by the University of Chicago Press; Serendipity; Wright, 1995; Van Vleet, 1999; Martin, 2000) focused on various falsehoods, distortions, and biases in media coverage and in trial processes, and on evidence of FBI actions that converted the incident into a tragedy and increased the unnecessary loss of life. Clinton (2013) offers, in addition, a list of tactical errors acknowledged by former ATF personnel.

Waco appears to be remembered by many as the largest massacre of civilians in the history of American law enforcement. Two years after Waco, Timothy McVeigh cited the Waco incident as his primary reason for bombing the Murrah Federal Building in Oklahoma City and killing 168 people, with particular intent to kill federal agents working there.

It seemed that Waco fanned anti-government sentiment because it augmented the impression of federal law enforcement agents who were willing to flout laws, deceive the public, and — with the aid of military equipment and personnel, if necessary — ultimately wipe out an apparently peaceable rural settlement of religious people who were on good terms with their neighbors, and who seemed to have accumulated weapons solely for defensive purposes. Events at Waco have evidently supported the impression, for some, that the BDs’ apparent violations of various laws were less dangerous than the threat of federal forces that will stop at nothing to impose intolerable schemes or values.

Posse Comitatus

At this point, it may be helpful to provide some background, before going on to the next of the five militia events in that Newsweek list (above). This section outlines the birth, death, and legacy of the Posse Comitatus movement. The following sections offer similar sketches for a few of that movement’s heirs.

According to the Southern Poverty Law Center (SPLC) (Zeskind, 1998), the Ruby Ridge and Waco episodes triggered a period of “heightened Posse Comitatus-type activity.” Levitas (1998) explains that Posse Comitatus (Latin for “power of the county”) is a movement that gained traction in the 1970s and early 1980s, arising from ideas and organizational efforts by William Potter Gale.

(For greater detail on groups prior, related, or comparable to Posse Comitatus, see History Commons. The Posse Comitatus movement is not to be confused with the Posse Comitatus Act of 1878, which limits the power of the federal government in using federal military forces to enforce domestic policies within the U.S. — see below.)

Various sources (e.g., Levitas 1 & 2; Wikipedia 1 2 3; ADL; Akhbari; Leek; Goldstein; Albrecht; Nizkor) explain that, in the Posse Comitatus movement, Gale combined several sets of beliefs (indulged in myriad combinations by individual followers, according to their own views) into a somewhat coherent perspective. One set of beliefs derives from the Christian Patriot movement, which considers the federal government opposed to what they see as America’s Christian roots and the ideals underlying the revolution of 1776. Another is that of the Christian Identity movement, which believes that the lost tribes of Israel turned up in Europe — that many Europeans are God’s chosen people, the true nation of Israel — and that modern Jews are not Hebrews, but are rather of Asian descent, and that they control the United Nations and the U.S. financial system and government (notably including the Internal Revenue Service). There is an apocalyptic element in Christian Identity teachings, a sense that followers are living in a time of crisis potentially entailing or calling for extreme and/or violent measures against the forces of evil. In addition, Gale drew upon the Tax Protest movement, which has contended since the 1950s (again, with some anti-government and/or anti-Jewish thinking) that current tax laws are unconstitutional, or are legitimate but should be ignored as an act of protest against government policies, notably including those involving gun control and management of public lands. Gale’s thinking also included a vigilante element, in the sense that Posse Comitatus asserted a right or obligation, reminiscent of the Ku Klux Klan, by which armed groups of citizens would use force to restore what they consider a more constitutional American order — or, in some variations, a more theocratic arrangement rejecting the U.S. constitution. In place of the perceived evils of far-off government agencies and Jewish capitalists, Gale contended that the county sheriff is the only legal law enforcement officer, and supported the use of “citizens’ grand juries” to issue written threats (and sometimes to bear arms in threatening actions) against judges, police, and other perceived agents of government. (It appeared that, in practice, county authorities would not necessarily provide authority of the kind Gale imagined.)

Gale was primarily successful in promoting the resulting blend of ideas in the Midwest during the farm crisis. In the late 1970s, the Carter Administration had encouraged farmers to massively overproduce output, leading to low prices for crops — and then that administration cut off grain exports to the Soviet Union, exacerbating the grain oversupply, while facilitating a dramatic increase in interest rates, which devastated the finances of many farmers who had become highly leveraged in pursuit of greater acreage and more expensive equipment. Gale began to broadcast from radio station KTTL in Dodge City in 1982. Farmers began to organize politically for their own financial reasons, and that facilitated the spread of Posse ideas.

Posse Comitatus began to lose strength, starting in 1983, with the murder of two federal marshals by Posse adherent Gordon Kahl in North Dakota in 1983, during their attempt to arrest him for a probation violation, followed by Kahl’s death four months later in Arkansas. From the mid-1980s, the Posse’s decline was aided by liberal groups that sought “to organize farmers in a positive way to combat the economic crisis” and to dispel the belief that the crisis was due to an international Jewish banking conspiracy. In addition, many farmers inclined to support Posse Comitatus lost their farms or for other reasons became less interested in farm-related politics. Gale was convicted on multiple charges in 1987 and died in prison the following year.

Posse Comitatus left quite a legacy. For one thing, Blue (2016) and Levitas (1998) explain that Gale’s ideas pertaining to gun ownership and formation of local Posse units were welcomed by those who favor Second Amendment absolutism, which appears to be defined as the view that the Second Amendment is “the Crown Jewel of our Constitution” (Rhodes, founder of Oath Keepers (below), as quoted by Adelmann, 2012), or as “an absolutist stance against gun regulation in any form” (Hodges, 2015) — such that laws and even other constitutional provisions must be scrutinized for their potential impact on the right to bear arms (Kilgore, 2012; see Green, 2008, p. 135). Of course, some of Gale’s ideas were welcome for those who already considered the U.S. government invalid because it is controlled by communists or Jews, the latter sometimes referred to as the Zionist Occupation Government (ZOG, as dramatized in Betrayed, 1988). Other reported legacies of Posse Comitatus include:

  • Incidents of money counterfeiting by individuals who evinced some connection with Posse Comitatus, along with efforts to create fake financial instruments to help farmers pay off their debts;
  • A high-level Posse-style link between taxes and guns, in the dual roles of Grover Norquist as Director of Americans for Tax Reform (ATR) and as a member of the National Rifle Association (NRA) board of directors, at least until he was accused in 2015 of having ties to radical Islamists; and
  • Stronger ties among groups advocating guns and white supremacy (Berlet, n.d.).

The Sovereign Citizen Movement

As yet another legacy, Wikipedia (1 & 2) explains that Posse Comitatus gave rise to the Sovereign Citizen movement. This movement emphasizes a somewhat anarchistic tendency toward beliefs that the county sheriff is, as above, the supreme legal authority; that the individual is answerable only to his/her interpretation of the law, or is free of all legal constraints; that the law itself consists solely of the old common law and excludes rules laid down by legislatures; and/or that federal actions and mechanisms (e.g., taxation, currency) are null. There have been numerous violent and nonviolent incidents and tactics, ranging from the murder of police officers to the filing of tremendous numbers of false lien notices (in order to complicate the legal status of real estate, vehicles, and other assets) and other bogus court and election papers (Goode, 2013; SPLC 1 & 2).

McNab (2010) estimates that the IRS receives 20,000 to 30,000 frivolous tax returns and 100,000 letters from tax protesters each year, an unknown percentage of which are from self-styled sovereign citizens. He also estimates a total of 100,000 “hard-core sovereign believers” and another 200,000 who are “just starting out by testing sovereign techniques for resisting everything from speeding tickets to drug charges.” McNab says, “While many sovereign citizens own guns, their weapon of choice is paper.” He cites the example of a woman who filed ten court documents over a two-month period to fight a $20 dog licensing requirement. McNab sketches out a sequence of historical events through which, sovereigns believe, today’s government officials have become knowing participants in a scheme to suppress the truth. Sovereigns believe this suppression can be reversed through a process known as “redemption,” and the individual can thus recover his/her sovereign identity. Evidently there are promoters who profit by marketing tools or assistance to this end. According to McNab, the predictable failure of sovereigns’ zany legal theories often feeds the belief that the judge or the system is conniving against them.

The FBI (2010) notes that guns are secondary to Sovereign Citizen beliefs, but considers the movement a potential source of domestic terrorism nonetheless. For example, Terry Nichols, convicted of conspiracy in Timothy McVeigh’s Oklahoma City bombing, subscribes to sovereign beliefs. Forbes (McNab, 2012) offers a different but not necessarily reassuring take on the matter:

Think about a law you don’t like. Any law, at any level of government. It can be a big law, like paying income taxes, or a tiny one, like licensing your pet Chihuahua with the county.

If you’re a member of the Tea Party movement, the solution to this bad law is to protest your opinion in DC and in other metropolitan areas, write angry letters to your Congressmen, and vote for politicians who agree with you that such a law should be scrapped as soon as possible.

If you’re a member of the sovereign citizen movement, your approach is a bit different. You start by looking for a combination of quotes, definitions, court cases, the Bible, Internet websites, and so on that justify how you can ignore the disliked law without any legal consequences. Be imaginative. Pull a line from the 1215 version of the Magna Carta, a definition from a 1913 legal dictionary, a quote from a founding father or two, and put it in the blender with some official-sounding Supreme Court case excerpts you found on like-minded websites. Better yet, find someone else online who disliked that same law and pay them $150 for a three-ring binder filled with their word salad research.

Et voilà, not only have you proven that you don’t have to obey the law you dislike, heck, it’s your patriotic duty to disobey it, and anyone who tells you otherwise is just plain un-American and is probably part of a world-wide Jewish conspiracy to ensure that Chihuahuas are slaves to the US government.

When you can pick and choose which laws to put through your special blender, you are effectively putting yourself above all laws. . . .

Once a sovereign feels the flush of excitement and self-importance that comes from acting as the David to the U.S. government’s Goliath, they know, with all of their hearts and souls, that their research is correct, that their cause is just, and that anyone who disagrees with them is a criminal who deserves to be punished. . . .

Following recent police shootings in Arkansas, Florida, Texas, and Pennsylvania, officers now need to rethink their opinion of this group.

I found McNab’s sarcasm a bit much, but — having known people who seem to think in the manner he describes — I did not think he was fabricating. In contrast to the profound misconceptions entertained by this sort of individual, we who have practiced law can claim to be “confused on a higher level and about more important things” (see Kelley, 1951, p. 2); but we might nonetheless reserve some empathy for those for whom, in the words of Learned Hand, the law is “a perfect wilderness” (see Woodcock, 1991, p. 181).

Montana Freemen

With that background in place, let us return to Newsweek‘s list of key militia events from the past quarter-century.

Many Posse Comitatus followers aligned with Christian Patriot thinking after the Posse began to fade (Levitas, 1998). Christian Patriots are sometimes treated as synonymous with the militia movement, but Wikipedia and Encyclopedia.com view them as tending toward the less militant Sovereign Citizen movement (above), with an anti-government perspective, opposition to gun control, and various aspects of Christian Identity belief (above), including theories involving Y2K (i.e., that the economy was going to collapse due to massive computer problems on January 1, 2000) and a vast conspiracy to establish a world government.

In the early to mid-1990s, Wikipedia says, a group of about ten Christian Patriots declared themselves independent of any outside government. They called themselves the Montana Freemen, and began to develop a small following. Wikipedia says they used certain legal books

to draw notices of lien against public officials. The liens were then allegedly sold to generate equity to fund an effort to make a “firm offer to pay off the national debt.” . . . The Freemen were [also] known to produce their own very realistic counterfeit checks and money orders. . . .

In late 1994 foreclosure proceedings were initiated . . . . The Freemen refused to be evicted from the land. They had also conducted their own mock trials of numerous public officials, and issued their own writ of execution against a federal judge. The FBI investigated the group and initiated a sting operation . . . which led to the arrest of two members of the group in March 1996. . . . [A]n armed confrontation developed and the FBI withdrew to a safe distance . . . [to avoid a recurrence of standoffs like those of Ruby Ridge and Waco]. After 81 days of negotiations, the Freemen surrendered to authorities on June 14, 1996.

History Commons says that siege involved 100 FBI agents, with at least 20 heavily armed Freemen inside the ranch, while several other Freemen left. Witnesses observed assault rifles, hunting rifles, and shotguns. Roads leading into the ranch remained open, with a number of people allowed to drive in and out after being stopped and questioned. Media, however, were excluded, allegedly to protect them, but probably for fear that they would do more harm than good. During the siege, one of the Freemen said,

I think the FBI has been handling it very patiently. I admire them for their patience. And they’ve had a tremendous amount of pressure from the public, from the local law enforcement, and from their superiors in the FBI and the Justice Department. I think they’re caught between a rock and a hard place, and they’re doing the only thing they can do.

A member of Militia of Montana threatened to bring a military caravan to the aid of the Freemen, but

Had McNeil managed to bring an actual caravan, he may have found himself in conflict with a cordon of some 30 local ranchers who have grouped together to stand up to any such militia operations. Local farmer Cecil Weeding later explains: “The militias will just pump more hot air into the Freemen and make it worse. There will be a clash if they get here. This country is sick and tired of that thing up there, and wants to get it over.”

Along with their financial shenanigans, the Freemen indulged a certain kind of Christian faith. Zeskind (1 & 2) says this faith included the belief that Jews controlled the banking system and were descended from Satan through Cain, while whites were the true offspring of Adam and Eve. In this view, whites, as “organic sovereigns,” are able to escape their bank debts and are entitled to rights superior to those of blacks and Jews, whose rights are supposedly granted only through the 14th Amendment.

At its peak, according to Zeskind (1988), the Montana Freemen proved capable of defrauding government agencies, banks, businesses, and their own neighbors; they had persuaded a local mayor to join them; they “propagandized publicly at well-attended community meetings,” attracting an estimated 800 followers; and they became the center of “a network that stretched from the Northwest to the Midwest, and south to Oklahoma and Texas.”

Ultimately, 16 people surrendered. Several members of the group cooperated with authorities and received reduced sentences; a handful of others received prison sentences of five to 22 years. Two of those sentences were extended due to attempts to break out or extort a way out of prison. Another one of the men was sentenced to additional time for filing bogus liens against federal judges from within prison, after he invented a company that supposedly held a $100 trillion default judgment against the United States and sold shares in that company to fellow inmates.

Republic of Texas

According to Wikipedia (1 2 3), there was an actual Republic of Texas, an independent nation existing from 1836 to 1846, and this has been the inspiration for the claims of several secessionist and/or militia groups that believe the original Republic was illegally occupied by the United States and remains, in law, a separate nation. White non-Hispanic residents of the original Republic, and of Mexican Texas before it, were known as Texians, and that term has been appropriated by many whose ancestors lived in Texas in those times, as well as by some members of these latter-day secessionist/militia groups.

The idea of seceding to form a separate country is not as crazy as it might seem. Reuters (Malone, 2014) reports that about one-quarter of all Americans (i.e., 30% of Republicans, 21% of Democrats) say they strongly support, or at least tend to support, the idea of their state leaving the union and forming its own country, while 53% are opposed. This secessionist preference is strongest in the southwest, which in this poll includes Texas, with 34% in favor. Wikipedia notes that, in 2012, using the White House’s We the People petitioning system, at least some residents of all 50 states had filed petitions seeking secession for their state (though their numbers were relatively tiny). Lucchese (2015) notes that Russia’s Vladimir Putin supports secession movements within the U.S., apparently in retribution for U.S. support for anti-Russian sentiment in Ukraine and elsewhere within the former Soviet bloc.

In 1997, one particular group calling itself the Republic of Texas engaged in a kidnapping and a weeklong standoff with police and Texas Rangers. One leader was killed; others were convicted of various charges, including threatening to assassinate President Clinton, and sent to prison. There were some subsequent flickers of activity, including a 2015 FBI/police raid on a meeting of about 60 members of a Republic of Texas group, during which computers and other items were seized, based on an allegation that a member of the group had issued an order for an attorney and a judge to appear at hearings that the group intended to conduct. No arrests were made.

There is at least one Republic of Texas website. That site offers a Proclamation, information on voting for Republic officers in various districts, evidence that Texas is still a republic, and other information.

The Sagebrush Rebellion

According to McCarthy (1992), the Sagebrush Rebellion commenced around 1891, continued until 1907, was revived in the 1970s, and arguably continues today. In both the older and newer manifestations, it was driven by people in western (especially Mountain) states who resented excessive federal control of local land, and by the perception of easterners who cared more about the idea of wilderness than about the economic realities of growth restrictions in the West. Starting in the late 1800s, individuals and families who had moved west in order to take advantage of opportunities offered by forests and mineral wealth were suddenly being told that those opportunities had dried up: the federal government in far-off Washington, led by politicians who had scarcely even viewed the lands in question, had placed those lands into preserves governed by seemingly arcane and ignorant regulations.

McCarthy cites 1979 as the year when the Sagebrush Rebellion really came back to life, for some of the same reasons behind its origination nearly 90 years earlier. That year could be seen as the end of a tacit arrangement described by Nelson (1984, p. 28), in which the West consented to federal control of much of its territory and economy, in exchange for federal funding for most of the West’s water projects, public works, and land maintenance as well as disproportionate western influence over federal actions in Congress. Nelson explains that this arrangement was repeatedly disrupted over the years — in 1934, for example, when the Taylor Grazing Act extended federal controls on grazing on federal lands. But 1979 was when the Nevada legislature passed the Sagebrush Rebellion Act, declaring that federal lands in that state (comprising 86% of the state’s land) belonged to that state. Similar legislation obtained strong support in virtually every other western state, and was enacted into law in several.

According to Nelson, these initiatives were, to a considerable degree, more rhetorical than real — useful, that is, for purposes of pushing federal policy in directions preferred by westerners, but not wholeheartedly embraced. Ranching, logging, mining, and tourism interests actually tended to prefer federal over state control, fearing that budget-conscious state governments would renegotiate the cheap access to resources granted by Washington. State governments in less wealthy western states also calculated that federal cession of land and revenues would have net negative effects on their budgets. Playing along with those forces, President Reagan’s Secretary of the Interior James Watt exceptionally prioritized western interests in Washington, actually undermining support for the sagebrush rebels by making federal land management in the West more responsive to western preferences. Thus, Nelson (p. 35) says,

Leaders of the Sagebrush Rebellion could effectively rouse the troops, but they could not present a consistent theory to explain why state ownership would serve the broad national interest or the cause of fairness. Thus they could not rebut either the perception in the rest of the country that the rebellion mainly served the narrow sectional interests of the West, or the perception in the West that the rebellion would endanger the benefits the West traditionally has received from the rest of the country.

Watt’s actions were controversial — opposed by, among others, eastern liberals, now joined by Hollywood, whom westerners perceived as, once again, meddling in matters that they did not understand. The controversy was especially pointed, and was probably triggered in the late 1970s in particular, due to numerous actions taken or proposed at that time by the Carter administration, some of which alienated not only westerners but environmentalists (Nelson, p. 30). The traditional arrangement was also disrupted by the growth of western cities and other interests: a newly wealthy West seemed, to many, no longer so entitled to federal largesse, and federal programs and regulations no longer seemed as necessary or tolerable in powerful states like California.

Nelson and others (e.g., Popper, 1984) were premature in declaring the Sagebrush Rebellion a matter of history, though. High Country News (2016) reports on “Forty years of Sagebrush Rebellion,” with links to articles tracing developments from “Environmentalists, backlash, and the ‘New Right'” (May 1978) to the Malheur Occupation (below). Between the 1980s and the present, those links point toward a number of intriguing events not explored here. Examples: “Home, home on the range … where neo-Nazis and skinheads roam” (June 1994); “Idaho stubbornly remains what America used to be” (March 1998); “Rebels with a lost cause” (December 2007); and “Utah’s Sagebrush Rebellion capital mellows as animal-lovers and enviros move in” (January 2011).

The Malheur Occupation

The foregoing review of a handful of prominent militant standoffs brings us to the present month of January, 2016. At this time, according to a frequently updated Wikipedia page, the headquarters building of the Malheur National Wildlife Refuge (MNWR) in southeastern Oregon (about 135 miles west of Boise, ID, as the crow flies; 250 miles southeast of Portland, OR; 250 miles north of Reno, NV) was occupied by armed members of a group calling itself the Citizens for Constitutional Freedom. A search for that group’s website led to a webpage that, in turn, pointed toward C4CF.com, which turned out to be the website of an organization called People for Constitutional Freedom. That webpage appeared to have been operational for only a few months, and did not seem to be tracking events at MNWR very closely.

The Wikipedia page indicates that the occupation grew out of a protest march on behalf of father-and-son ranchers Dwight and Steven Hammond. In 1986 and 1988, Dwight made threats against a public lands manager. In 1994, federal agents arrested the Hammonds for obstructing construction of a fence between land owned by the Hammonds and BLM land. The purpose of the fence was to prevent Hammond cattle from entering on public land in violation of permit. After their release from jail in 1994, 500 other cattle ranchers attended a rally in support. Charges against the Hammonds were dropped. In 1999, Steve Hammond started a fire without a permit. That fire spread onto BLM land. No charges were filed. In 2001 and 2006, the Hammonds started fires that led to convictions of arson on federal land. The 2001 fire accompanied an illegal Hammond slaughter of a herd of deer. The 2006 fire posed a threat of killing four BLM firefighters located in the path of the fire. After trial in 2012 and appeals continuing until October 2015, the Hammonds were given mandatory minimum sentences of five years in prison and compelled to pay $400,000 in restitution. They reported to prison in California on January 4, 2016 as ordered.

According to The Oregonian (Zaitz, 2016), an estimated 300 marchers participated in a peaceful protest march on Saturday, January 2, 2016. Marchers included both militiamen and local citizens. A number of militia then drove out to MNWR and occupied the premises, which were closed for the holiday weekend. Militia members included Cliven Bundy’s sons Ammon and Ryan. Ammon, apparently leading the occupation, declined to say how many people were with him, or whether they were armed. The New York Times (Johnson et al., 2016) said the group was small, and that it had occupied a handful of buildings. Ammon said they were prepared, if necessary, to fight and die to defend what they saw as constitutionally protected rights. He said their demands included release of the Hammonds; relinquishment of federal control over, and a shutdown of, the wildlife refuge; and return of the refuge land to local ranchers, loggers, and miners.

The Oregonian pointed toward Ammon’s Facebook page, which posted a call to action on December 31, 2015. The Oregonian also reported, however, that other militia leaders expressed ignorance of, or denounced, the occupation; that local residents whom Ammon had attempted to recruit had declined to participate; and that the Hammonds professed no interest in ignoring the order to report for prison. Other participants reportedly included Ryan Payne, who claimed to have helped militia snipers to target federal agents at Cliven Bundy’s ranch, and Blaine Cooper, also a participant in that prior event. Ammon claimed to have been instructed by God to go to this place and do this thing.

Rolling Stone (Dickinson, 2016) explains that details of the Hammonds’ conviction and sentencing implied that they had been prosecuted as terrorists, and that this provoked much consternation among militants. Rolling Stone quotes another Ammon Bundy Facebook video: “This will become a base place for patriots from all over the country to come and be housed here and to live here. And we’re planning on staying here for several years.” But the Times (2016) said there did not appear to be “the national groundswell of attention they hoped to attract,” and “no sign of officials trying to meet their demands or of law enforcement closing in on them.” The Times and others (e.g., Neiwert, 2016) indicated that locals viewed these occupiers as outsiders, and wished they would go away — partly because schools had to be closed, since officials could not guarantee the safety of children traveling to and from school. Mother Jones (Williams, 2001) writes of comparable earlier experiences in Elko, NV, in which extremists intimidated local residents from expressing their views of such activities.

A December 2015 poll cited by the Los Angeles Times (Yardley, 2016) found that, in every western state except Utah, those favoring continued federal control of public lands outnumbered those favoring state control by almost two to one. Developments as of the end of January 2016 seemed to confirm that the public will tend to be hostile to these sorts of militia activities. One Malheur gangster (LaVoy Finicum) had been killed and others apprehended; a handful continued to occupy a part of the wildlife facility; and Ammon Bundy, who had spoken of staying for several years, was now issuing repeated calls for the remaining holdouts to leave that facility. Opinion seemed to be running rather strongly against the militants. Gettys (2016) reported that prominent militia gangs were advising their members not to become involved until the facts were in. UPI (Adamczyk & Ware, 2016) reported that Oregon Governor Kate Brown was critical of the federal response and claimed costs of $100,000 per week to the state budget, and that locals were growing more irritated with the occupation. Scientific American (Zorich, 2016) reported that the occupiers appeared to have used a bulldozer on archaeologically sensitive areas (compare ISIS) and that the occupation was delaying research and biologically important maintenance — and also that Finicum’s expression of concern for Burns Paiute Tribe artifacts was met with a resolution, by the tribe, calling on the U.S. Department of the Interior to prosecute the occupiers to the fullest extent of the law, pursuant to the government’s treaty obligations. A Huffington Post poll (2016) found neither Republicans nor Democrats especially supportive of the gangsters (see also Herald and News, 2016). Salon (Tesfaye, 2016) points to a Facebook post in which Nevada Republican Assemblywoman Shelly Shelton claimed Finicum had been “gunned down and murdered.” In a comment on her post, she cited an audio recording that appeared to present the account of Victoria Sharp, who was reportedly in Finicum’s vehicle. On brief review, I was not sure how Sharp would have been able to report that Finicum’s hands were in the air when he was shot, given her claim that she and others in the vehicle were lying on the floor while police shot at them an estimated 120 times. At any rate, an FBI video appears to indicate that her claim was false: Finicum does appear to have been reaching for his pockets when he was shot. Shelton’s Facebook post drew a lot of critical comments (e.g., “You are seriously comparing this domestic terrorist to Jesus or Moses?”).

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******************** PART TWO: CONCEPTS ********************

Having summarized notable militia standoffs of the past quarter-century, this second part reviews certain aspects of those confrontations, and discusses some relevant underlying beliefs and concepts. In preparing these materials, I found that my reactions were less patient than they had been when I started this research. By this point, I felt that I had been exposed to too many instances in which people essentially insisted on their right to do stupid things, and then complained about the consequences. Challenging entrenched power appears to be difficult. It would make sense to choose one’s approach carefully. The following discussion illustrates that.

Definition of Militia

Justice Scalia of the U.S. Supreme Court has ruled, in District of Columbia v. Heller (2008), that the “militia” referred to in the Second Amendment to the U.S. Constitution consists of “all able-bodied men,” although there may also be a “federally organized militia” (or, for that matter, a state militia) that would contain only a subset of all able-bodied men.

The “militia” members or organizations discussed in this post have nothing to do with that. They are not the entire population of able-bodied men, nor are they a subset organized by a governmental entity. Therefore, within the Second Amendment as construed by the Supreme Court in Heller, they are not militias or militiamen. They involve nothing more than what Wikipedia calls paramilitary, unorganized, or rump militias. From a constitutional perspective, these are simply armed civilian gangs pursuing objectives that interest them.

Like other Americans, these so-called militia are expected to pursue those objectives in a legal manner, using money, courts, petitions, persuasion, public education, and other common, peaceable means of achieving desired objectives. For them, as for anyone else, decisions to threaten or commence potentially deadly gunfire, to occupy or damage governmental property, or otherwise to take illegal action, make them criminals. Thus, to distinguish them from the kind of genuine constitutional militia envisioned by Scalia in Heller, the remainder of this post sometimes refers to such groups and individuals as “militia gangs” and “militia gangsters.”

Insurrectionary Interpretation
of the Second Amendment

Even if these militia gangs comprised the true constitutional militia, there would be a question of whether, and when, they would be entitled to take up arms against the government. Scalia’s opinion in Heller refers to the possibility that the Second Amendment was intended to facilitate that sort of thing. But Scalia does not develop the thought extensively, and it is not as simple and obvious as some militia gangsters appear to assume.

As expressed by Dunlap (1995, pp. 644-645), the “insurrectionary theory” or interpretation holds that, “as a last resort,” the Second Amendment is intended to help Americans “rise in armed revolt against tyrannical authorities.” But such a theory is not persuasive. First, the definition of treason in U.S. Constitution, Article III, Section 3 includes “levying War against” the United States by persons who owe allegiance to the United States. U.S. Code Title 18 identifies other grounds for prosecution of revolutionary actions. These include misprision of treason, rebellion or insurrection, seditious conspiracy, and advocating overthrow of government. Misprision of treason is failure to disclose treason (18 U.S.C. § 2382). Rebellion or insurrection includes inciting, assisting, or engaging in rebellion or insurrection against federal authority (18 U.S.C. § 2383). Seditious conspiracy is conspiracy to overthrow the federal government, to oppose its authority by force, to prevent or delay the execution of federal law, or to forcibly take federal property (18 U.S.C. § 2384). Advocating overthrow of government is knowingly advocating, abetting, or attempting ideas or plans involving the forcible overthrow of federal, state, or local government, or the assassination of any governmental officer (18 U.S.C. § 2385).

My accompanying post identifies some problems that came to mind as I read Scalia’s insurrectionary remarks in Heller. Dunlap (1995, p. 654) presents other problems with the insurrectionary interpretation:

It is difficult . . . to find support in the Constitution for the notion that the Second Amendment is a license for the people to resist and triumph over government at any level by means of force and violence. To the contrary, the Constitution is replete with provisions intended to quell uprisings. For example, Congress is empowered to call out the militia – the very force envisioned to resist usurpations of power – to suppress insurrections and rebellions. . . . Congress has likewise enacted a series of laws, the majority of which have withstood constitutional attack, that criminalize conduct aimed at fostering violent opposition to government authority. . . . First Amendment considerations limit the power to restrict speech . . . which is intended to present an imminent threat of the overthrow of government . . . .

Dunlap raises additional historical and present considerations, which I construe and expand as follows:

  • According to Wikipedia, the Whiskey Rebellion of 1791 was a tax protest. As provided in the Constitution (Article I, Section 8), President Washington called forth the constitutional militia to suppress that insurrection, and its leaders were indicted for treason.
  • Southern leaders prior to the Civil War were divided on whether secession was revolutionary or implicit in the Constitution. After the Civil War, leaders of the Confederacy were widely understood to have engaged in treason, but were pardoned for political reasons (Bezilla, 2014; Blair, 2014, p. 255; New York Times, 1861).
  • The Supreme Court (Dennis v. U.S., 1951) said,

[T]he argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.

  • After initially relying on civilian militias that performed poorly against British regulars, George Washington and other Revolutionary leaders demanded the formation of the Continental Army. That army won the Revolution with vital assistance from France’s military professionals.
  • In the modern era, draftees and other amateur soldiers, however numerous, have not performed effectively against professional armies. Resistance fighters provided valuable intelligence and sabotage in World War II, but their efforts in real battle were often disastrous. Example: for every German soldier killed in the Warsaw uprising, 20 Poles died.
  • Civilian weapons are dramatically inferior to those held by military forces. Successful modern insurgencies use military hardware that would not be permitted under the Second Amendment: “[N]o insurgents armed only with the sort of personal weapons contemplated by the Second Amendment have prevailed, in a military sense, over any authentically modem army” (p. 662). The Afghans were successful against the Soviets in the 1970s only when the U.S. began giving them Stinger missiles. American troops crushed the Viet Cong; that war was concluded by North Vietnamese regular army units, using heavy artillery and other military weaponry.
  • The professional self-respect of a modern military force is, itself, a bulwark against tyranny. Such a military depends upon soldiers capable of thinking independently, as distinct from the blindly obedient social dregs who manned 18th-century armies. Words and actions that would degrade military pride, or otherwise discourage intelligent people from participating in such a force, may facilitate the very tyranny that one wishes to prevent.
  • The hundreds of millions of weapons available to a hundred million Americans would be less of a military problem than one might assume: such weapons would have little effect against the U.S. military’s tens of thousands of tanks and armored vehicles, not to mention aircraft. Soviet armor quickly smashed the uprising in Hungary in 1956. Actual military capability is only part of the picture: military equipment tends to have tremendous shock value. This was demonstrated as long ago as Shay’s Rebellion of 1787, when that era’s primitive artillery was enough to cause rebels to break and flee.
  • Contrary to legend, Switzerland was spared from Nazi invasion in World War II, not because its citizens carried rifles, but because it made arms and munitions for Germany. Switzerland today has abandoned its militia strategy in favor of a smaller and more professional force.
  • Major powers’ postwar decisions not to pursue insurgencies typically reflect their citizens’ relative indifference to distant conflicts. But priorities would be very different — enormous and ruthless military force would be brought to bear — by a tyrant bent upon controlling a domestic population, and by any government challenged in a civil war. China’s army quickly suppressed dissent in Tiananmen Square in 1989. With a military vastly inferior to that of today’s America, Russia subdued civil rebellion in Chechnya. The U.S. has tens of thousands of troops specifically trained in counterinsurgency warfare. U.S. troops have easily put down uprisings in numerous developing nations over the years.
  • Warrior cultures in places like Afghanistan and Somalia are formed from birth: people are brought up to fight and to see honor in killing and dying in battle, especially when they see themselves as defending their religion or way of life. The mindset of the vast majority of American civilians is not remotely like this. Americans today would be unlikely to participate and succeed in a protracted conflict.
  • In civil wars, not everyone joins the same side. A tyrant clever and powerful enough to come to power in the U.S. would predictably enjoy advice from lawyers, marketing experts, and other consultants. S/he would probably control major media, and would be well on the way to eliminating political rivals. As such, the tyrant would persuade many, probably a considerable majority, that the status quo is safer and easier to tolerate, more predictable, and probably better in the long run than the chaos that militants would seem to offer.
  • A tyrant would almost surely control and use spy agencies and intelligence systems. Such systems offer growing degrees of day-to-day monitoring, often on a fairly intimate level. Dissident political organizations would be (typically, in modern America, have been) infiltrated. Militants would find themselves openly or quietly opposed and betrayed, not only by adverse military forces, but also by armed neighbors, friends, and even fellow militants. Crime statistics suggest that some purported militants would prove to be opportunists, willing to exploit either side of the conflict for their own purposes.
  • Revolutionary efforts in the U.S. would be very different from revolutionary efforts in a place like Iraq. Monitoring, and the absence of a deep-rooted warrior culture, would be joined by the fact that the tyrant would understand the militant’s language completely, and would also be likely to have a good understanding of the militant’s culture. There would not tend to be ancient, inward-looking local environments in which a militant could hide without detection.
  • Over the years, unarmed citizens have been responsible for the most significant changes in many countries — not only in the U.S., but also in India and the former Soviet Union. By contrast, armed revolutionaries in the U.S. (e.g., Black Panthers, white supremacists, Middle Eastern terrorists) have been systematically identified, isolated, and suppressed — with little if any need for military intervention. Almost invariably, violent factions alienate the public and contribute to the popularity of the existing regime. Even at Waco, with so much fallout from the heavyhanded approach taken by law enforcement agencies, the public overwhelmingly favored the eventual use of force to resolve the matter.

Dunlap concludes that the concept of an armed citizenry overwhelming a professional military in civil war is not realistic. Therefore, a Second Amendment intended to prepare the masses for revolution against the federal government ceases to be credible.

In other words, regardless of the situation in the 18th century, in contemporary America a militia comprised of untrained and poorly armed civilians would be ineffectual — indeed, to some extent self-defeating — in a military challenge to a tyrant. It would be foolish to commit the United States to develop exactly that kind of hopeless militia, or to construe the Second Amendment as requiring such a commitment. Even more hopeless is the notion that militia gangs should be formed and encouraged to take up arms against a constitutionally based federal government. Such gangs should be suppressed — with force, if necessary — and no matter how noble their self-perceptions, their suppression will be widely applauded.

There is a real need for an effective form of revolution in the United States. But, again, the violently confrontational path chosen by the militia gangs is not the answer.

President Obama’s Response to Militia Gangs

At this writing, nearly two years after the Bundy Standoff of April 2014, Cliven Bundy apparently continues to graze his cattle for free on federal land. There have also been no charges against militia gangsters who reportedly engaged in weapons-related crimes that day.

In the wake of incidents like those at Waco and Ruby Ridge, it is understandable that federal agents would wish, or would be ordered, to proceed cautiously in highly volatile situations involving militia gangsters. On the other hand, it is also incumbent upon federal agents to minimize the risk that such situations will recur, by apprehending those responsible for creating such situations, thereby sending a warning to others who might otherwise consider such adventures glorious and relatively safe.

The federal failure to file charges following the Bundy Standoff has been criticized as creating an impression of victory for militia gangsters at the Cliven Bundy ranch, and of setting a dangerous precedent. Such inaction bears at least some responsibility for the fact that, on numerous other occasions since April 2014 and prior to the Malheur Occupation, militia gangsters have been emboldened to commit gun crimes and to threaten and force demoralizing showdowns with federal agents (Guardian, 2014; Johnson et al., 2016; Neiwert, 2016; SPLC, 2014; Zornick, 2014).

It is reasonable to infer that President Obama remains informed in the situation at the Malheur Wildlife Refuge, notwithstanding White House efforts to downplay his current level of interest, just as he was reported to have been apprised of current events in the Bundy Standoff. One might thus admire what appears to be the courage and creativity with which Obama takes an exceedingly low-key approach, in the face of pressure to react with the typical massive (albeit counterproductive) force. At the same time, one might reasonably infer that federal inaction following the Bundy Standoff is yet another instance in which Obama avoids taking stern measures when such measures are necessary.

President Obama has something of a track record in that regard. There is, for example, his failure to take my advice (which he surely never heard from me, but which he obviously did hear from many others) in the wake of the financial disasters circa 2008: heads must roll. There must be a demonstration that the White House is in charge, and that those responsible for wrecking the American economy would be called to account. That didn’t happen. For another example, we have the self-created impression of gutlessness that emerged when Obama declared that use of chemical weapons by President Assad of Syria would cross “a red line” — and then failed to impose consequences on Assad for crossing that line. That empty threat has been attacked by commentators across the political spectrum; it has been cited as a probable opening for Russia’s Vladimir Putin to step in and alter the situation, exacerbating the Syrian crisis.

The point is not so much that such presidential irresolution is immensely destructive in every case, though Syrian refugees flooding and conceivably destabilizing Europe are a fact to ponder (e.g., Douthat, 2016). The point is simply that there does not seem to be any significant way in which the impression or reality of such presidential weakness is beneficial, to Obama personally or to the nation as a whole. There needed to be charges, arrests, and prosecutions following the Bundy Standoff of 2014. The Malheur Occupation, and the belated federal response, demonstrate that continued failure to act decisively, with respect to militia gangsters, is likely to have further deleterious consequences.

An Example of Current Insurrectionism:
Bob Owens

In this section and the next one, I discuss some examples of what some might label the “lunatic fringe” or “gun crazies.” These examples do not necessarily disprove such labels. Indeed, these examples do suggest that, sometimes, people favoring armed revolution are just not very persuasive. But while my own exasperation may peek through, when I wrote this section I still felt that it would be best to try to understand, and to give fair treatment to, the personal concerns driving such individuals. One need not be a lunatic to feel and convey anxieties about developments that are not always fully and candidly discussed by those who do have inside information.

This section tackles a counterpoint to Dunlap’s arguments (above), on the question of what would happen if a militia commenced a revolution against the federal government. This alternative is offered in a post by Bob Owens (2012). I came to that post, on Owens’s old blog, by following a link from a post on his new one. I think I got to the new one by following links from posts in which Owens (1 & 2) and Horwitz trade shots related to the latter’s title, “The NRA Goes Full Insurrectionist.”

Owens does not appear to be a lawyer. His post is not a scholarly piece. It does not discuss what courts and law enforcement personnel might be legally compelled to do in response to armed revolution. Rather, he offers some ideas on what might happen on the military side. Generally, Owens and his views have drawn some concern — from SPLC (Terry, 2013) and GunLobbyWatch — and also some praise (from e.g., the Western Rifle Shooters Association, 2012). It seemed to me that, in his post, Owens captured concerns and beliefs that resonate among a fair number of gun owners.

Owens begins his scenario by imagining that “a sweeping gun control bill similar to the one currently suggested is passed by the House and Senate, and signed into law by a contemptuous President.” He does not provide a link or otherwise clarify what “currently suggested” bill he was referring to. Another Owens blog post, dated about a week earlier, suggested that he might mean S. 150, a ban on assault weapons and larger-capacity magazines proposed by California Senator Dianne Feinstein. But even if he had been referring to the larger gun control effort unveiled by President Obama the following month, Owens would have been grossly distorting the situation by claiming that

Perhaps 50-100 million firearms currently owned by law-abiding citizens will become contraband with the stroke of a pen. Citizens will either register their firearms, or turn them in to agents of the federal government, or risk becoming criminals themselves.

My accompanying post explains the large difference between background checks to close the gun show loophole, which Obama did propose, and creation of a gun registry, which he did not propose. Even the much weaker measures that Obama did propose went down to a “stunning collapse” and a “resounding defeat,” failing by a 40-60 vote to pass the Senate on April 17, 2013 (O’Keefe & Rucker, 2013). If a president cannot get background checks through Congress against NRA lobbying when 85% of the public approves of them, he is certainly not going to get far with a gun registry. So while Owens’s gun registry scenario is more imaginable than the Stalin-like tyrant envisioned by Dunlap and perhaps by Scalia, it could still be twenty years, or more, before Owens’s scenario comes to pass on the federal level. A great deal can happen in that time. Twenty years from now, we may all be fighting ISIS in the streets. We may all be wearing phasers, set to stun.

Nonetheless, let us continue with the story. Let us assume that, in the not-too-distant future, “a contemptuous President” does have an opportunity to sign a bill like the one Owens describes, that a registration order follows, and that gun owners face the choice of registering their guns or else becoming criminals in possession of unregistered firearms. It is not clear how Owens estimated that this would result in 50 to 100 million registrations. As noted in the accompanying post, there appear to be more than 300 million guns in the U.S.

One thing to consider about Owens’s scenario is that it would probably be a political disaster for the president and the congressional representatives who supported it. About one quarter of Americans oppose gun registration (YouGov, 2015). That is well above the number of Americans who oppose background checks, which have proved politically infeasible for many years. It presently appears likely that many politicians and lawyers would condemn the registration law, and would do everything in their power to complicate it, delay it, and have it declared unconstitutional in the courts. For example, to demonstrate the “futility of gun registration laws,” NRA (2015) lists examples of noncompliance with such laws, notably including a New York law with which only 4% of gun owners complied. There would probably be severe consequences for that president’s party in the next election, after which the law might be repealed.

But to proceed with Owens’s scenario, let us assume that the political sands have shifted dramatically, and it has somehow become politically prudent and feasible to implement a national gun registration law. Owens seems primarily interested in exploring the insurrectionary ramifications of any such law. In that vein, he speculates that some gun owners will register their weapons, as required by the new law, while perhaps a similar number will claim that their weapons have been sold or stolen. He suggests that perhaps 200 to 250 million weapons, owned by tens of millions of American adults, will remain unregistered.

Here, again, we have a political situation; and while it does not interest Owens, it does deserve at least brief attention. If Owens is correct, law enforcement will face the prospect of declaring vast numbers of ordinary people to be criminals. Now we have another political nightmare, in which countless grandmothers and paraplegics are carted off to jail on the evening news, not to mention the impossible logistics and expense of imprisoning those people, and the extraordinary economic and social disruption that would follow in their absence. That is not going to happen. Stalin might have done it, having already arranged his inner circle, his bodyguards, and his secret police, not to mention his notorious willingness to wreck his country and murder tens of millions of his own citizens. But for elected officials in the U.S. it would be suicidal — in more ways than one, as Owens is about to tell us.

There may be alternate possibilities — for instance, registration could be required only for newly purchased guns, or only for those owning more than three guns, or phased in over a period of years. One way or another, we return to the fact that the people and their elected leaders tend not to take measures, or to engage in responses, that lead readily toward civil war.

Some may feel that, in these remarks, I am dodging Owens’s point. I would say that Owens is dodging reality — that his account tries to make everything line up in a certain extreme way, as if to support a sort of Red Dawn fantasy. It is worth slowing him down a bit, because it appears that many who become agitated about proposed gun laws could be understandably frightened by such telescoping of immediate, eventual, and unlikely outcomes into a single threat that would indeed be scary if it were real.

NRA’s example of that New York gun registration law provides a realistic check on Owens’s fantasy in another sense. The U.S. is not likely to lurch from a mostly placid if disaffected political environment into a sudden and extreme revolutionary nightmare. What is much more likely is that there will be small-scale revolutionary efforts, like those described above, in response to state or federal efforts that deeply offend only a narrow slice of the population. In other words, the history of America does contain recurrent examples of rebellion, going back more than 200 years. Those examples tell us that, with the exception of something on the scale of slavery and the Civil War, armed revolution tends to draw only small numbers on narrow issues. Deep and widespread public anger is manifested in political movements long before it ever becomes violent.

But, once more, let us overlook these considerations and follow Owens. In his scenario, we have a law that criminalizes possession of an unregistered firearm, and we have

Tens of millions of Americans [who] will refuse to comply . . . . Perhaps 40-50 million citizens will view such a law as treason. Perhaps ten percent of those, 4-5 million, would support a rebellion in some way, and maybe 40,000-100,000 Americans will form small independently-functioning active resistance cells, or become lone-wolves.

Of course, these numbers are grabbed from thin air, but that’s not a fatal flaw: any estimate is better than no estimate. The numbers would be considerably higher, if NRA’s New York example (above) held on the national level. Then again, that New York example did not trigger any visible revolution, rebutting Owens’s scenario altogether. It seems there are many possibilities, depending on the details of the law and how it is enforced.

In the quote just offered, Owens’s reference to “treason” is hard to understand, given the Constitution’s definition (above). Possibly he just means to use a strong word to express the intensity of his hostility toward a gun registration law. The law would be outrageous, it seems, because he telescopes the dim possibility of an eventual buyback program (with, again, extraordinary political risks, difficulties, and costs, experienced as controversial even within Australia’s much smaller and less gun-tolerant society, as discussed in the accompanying post) into an immediate and intolerable reality. For Owens, it seems, registration means buyback means confiscation means tyranny. And for him, it’s just that simple.

As just quoted, Owens estimates that perhaps one-tenth of the 40 to 50 million Americans who resent the hypothetical law would not just sit quietly and hope that their unregistered firearms would go unnoticed — or, upon being caught, would not just work out a plea bargain, pay a fine, register their gun, and go back to business as usual. These four to five million would feel strongly enough about their guns, or about the threat posed by the gun registration law, to provide at least some support to an armed revolution against the federal government. That would constitute treason under the Constitution’s definition, and treason is punishable by death under 18 U.S. Code § 2381, and also under the common law. Capital punishment in the U.S. is pretty rare anymore, but Owens seems to be postulating desperate times. A national or global political environment that would support the upheaval of a massive gun registration program might also support a renaissance of capital punishment against troublemakers who made a serious effort to overthrow the government of the United States. Such a development seems especially plausible if, as Owens suggests, the rebellion would result in high-profile assassinations.

As far as the decisions made by the masses, my own speculation would not be so friendly toward Owens’s cause. I would speculate that, once again, the political forces behind such a gun registration program would make it as easy as possible for the vast majority of those who initially balked to cool down and reconsider their options. I suspect that most would come to see Owens’s more rebellious minority as being hotheads who are pushing things too far. This is, after all, what shrewd leaders always do, whenever a few aggressive students or employees or residents become sufficiently angry to express their opposition. Most of the time, the leader makes some concessions to the dissidents, calms them down, separates out the instigators, portrays them as oddballs and troublemakers, and ultimately silences or eliminates them. I would speculate that, when push comes to shove, a surprisingly small number of Americans are willing to die, or even risk prison, for the privilege of holding onto an unregistered firearm, especially if everyone can see that registration is not being followed by confiscation. True, confiscation could happen later; true, the people pushing the registration program may just be biding their time. But it seems that such schemes always fool a surprising number of people. Regardless of whether confiscation ultimately takes place, my bet would be that a very substantial majority of gun owners would balance their priorities and go along with the registration law.

But let us continue with Owens’s scenario. From among the four to five million revolution sympathizers, he guesses that “maybe 40,000-100,000 Americans will form small independently-functioning active resistance cells, or become lone-wolves.” Maybe. I would be surprised if that many would, and I would bet that their number would dwindle fast. In a country of 320 million people, with eyeballs and networks and monitors everywhere, where are these people going to hide? What are they going to eat? According to Owens,

They will be leaderless, stateless, difficult to track, and considering the number of military veterans that would likely be among their number, extremely skilled at sabotage, assassination, and ambush.

Being skilled at sabotage and ambush has nothing to do with surviving on the run in an advanced society. It would be more impressive if Owens had a story about recruiting former spies — or, for that matter, credit specialists or homeless people. At least they know their way around certain strata of society. Soldiers with battlefield experience often have considerable difficulty returning to civilian life, and that might be especially true of those who would be inclined toward revolution. Those with a realistic prospect of completing an assassination may also tend to stand out, in the eyes of security agents scanning the crowd.

There is also a personal element. Former soldiers are not monks. Most have husbands, girlfriends, children, parents, and/or friends. They have lives to live, and people who need them. They aren’t going to want to abandon all that for the sake of a gun, or even for the theory that their gun will somehow help them protect their country. And if they do, there’s more to think about. Federal, state, and local troops and law enforcement officers would hopefully never retaliate against the relatively defenseless individuals whom Owens’s warriors would leave behind. But this is not like fighting in Afghanistan, halfway around the world. One way or another, about the time one of these guys is perceived as wrecking someone’s life or killing someone’s dearest friend, that rebel’s dependents are going to be vulnerable for payback. A smart soldier is going to become aware of this risk sooner rather than later. He will probably ponder his best course of action before Owens’s war even begins.

For most people, it would seem crazy to fight a war to avoid registering a gun. There are no doubt lone wolves who see the matter differently, and some might indeed follow a path like the one Owens describes. Some of these fighters might have severe mental problems that would hamper their ability to remain unnoticed; some might be perceived as heroes by others who did not take that path. This would not make them heroes in fact; some remarkably awful criminals somehow manage to find girlfriends and admirers during their years behind bars. Some of the lone wolves might be able to wreak considerable damage before finally being killed or put away or executed. But it is very unlikely that they would bring about significant change.

Owens imagines that the turning point will come when the “illusion of the government’s invincibility and infallibility is broken.” There is no such illusion. Even with today’s low public opinion of our existing government, these fighters — hated for what the propaganda says about them, and for the misery they seem to be causing — are not going to be perceived as offering any real alternative to the established government. The public will have no choice but to hope the government can end the insurgency, so that life can get back to normal. As Gupta (2013) puts it, “The public, liberals included, reflexively backs state violence. . . . Armed resistance is suicidal.” While I did not share the perspective of Smith (2016), I felt that he understood the situation:

Does this mean people should not rebel against tyranny? No, it means that we have to fight smart and retain the moral high ground at all times. We must act in a way that exposes the true nature of corrupt government, rather than giving them more ammunition to shoot us down with in the public eye. Above all, if we fight we must fight TO WIN. This means not deliberately searching for an Alamo. Martyrs are ultimately useless in this kind of war because if we lose, no one will remember them anyway. Glory seekers and self-proclaimed profits [sic] will only lead people to disaster.

Even in developing countries, people wait years for such conflicts to end. It would take enormous military defeats for people to doubt the ability of the government of the United States to govern its own territory — and even then, they would have to see a really credible alternative. The kinds of “successes” Owens talks about would not even begin to dent that: “innocents are gunned down, a city block is burned to ash, or especially fierce resistance leads to a disastrously failed raid.” Those sorts of achievements would only enhance the general desire to find and get rid of the rebels as soon as possible.

I could go on, offering more counterpoints to the struggle Owens has conceived. At a certain point, however, it begins to appear that he is not really engaged in an attempt to sketch out a believable picture for what is likely to happen if gun registration becomes law — which, as he probably knew, was not even being proposed. It begins to seem, instead, that Owens has an altogether different kind of agenda. Consider:

Unnamed citizens and federal agents will be the first to die, and they will die by the dozens and maybe hundreds, but famous politicians will soon join them in a spate of revenge killings . . . . [The President] will be forced to move like a criminal. He will never be seen outdoors in public again. . . . The 535 members of the House and Senate in both parties that allowed such a law to pass would largely be on their own . . . . The elites will be steadily whittled down, and if they can not be reached directly, the targets will become their staffers, spouses, children, and grandchildren. Grandstanding media figures loyal to the regime would die in droves, executed as enemies of the Republic. You can expect congressional staffs to disintegrate with just a few shootings, and expect elected officials themselves to resign well before a quarter of their number are eliminated . . . . Military commands and federal agencies will be whittled down as servicemen and agents will desert or defect.

With those excerpts, I rest my case. What Owens has provided is not a realistic account of the horrors of war, offered by someone who has a firsthand sense of how both sides suffer (e.g., Kushkush & Sengupta, 2014; Watkins, 2015). Nor is this the Bolshevik Revolution of 1917, where Lenin and others skillfully identified and took over the levers of power. Owens’s scenario comes across more as a literary vendetta: he allows readers to see his loathing for certain kinds of people, and his satisfaction at the thought that someday they will get their just deserts. If the objective is to encourage opposition to gun control, Owens may be his own worst enemy. Remarks like these can only enhance concerns that too many guns are in the wrong hands.

A Different Example:
Whiteout Press and Domestic Terrorism

This section discusses topics raised in an article in Whiteout Press (2014), one of several gun-related opinion sources offered by Illinois blogger Mark Wachtler. As with Owens (above), the insurrectionary thinking expressed in the Whiteout post was not very persuasive. The post did lead, however, to some further materials and insights.

First, regarding public support for insurrection: Rasmussen (2014) reported that only 21% of likely U.S. voters believe that the federal government has the consent of the governed. Whiteout Press cited an earlier and even lower (i.e., 17%) Rasmussen finding. So it was not crazy to wonder whether “Americans are ready for revolution.” It’s just that there seems to be a big step from public disaffection to actual revolutionary commitment. As a practical matter, people are apt to sound like they support revolution — until they get the girl or the promotion or the baby or whatever really matters in their lives. Gun owners prepared to revolt seem to be a bit like skateboarders: they have their own culture, they really get into it, but they just don’t speak for the average person, and nobody else is going to follow them.

The Whiteout author offered the possibility that very poorly supported petitions to secede (above) would somehow come to mean that “a dozen states will declare their independence” — rural states, the Whiteout author surmises — and this could then result in “a period where Washington rules half the country while local governments rule in the other half” and a war that Washington would find “unwinnable.” This scenario appeared unrealistic.

Certainly it is sobering that Americans’ approval of Congress is very low, and has been trending flat or falling for most of the 21st century (Gallup, 2015). But people throughout the world are extremely unlikely to go to war even when confronted with conditions much worse than those existing in the U.S. at present. Before a revolution, one would expect to see riots and other mass upheaval on a national scale. That is not the current American situation. For example, the OECD Better Life Index finds that people in the U.S. express life satisfaction at a higher rate than the average among OECD nations. Similarly, the World Happiness Report (2015) ranked the U.S. 15th in happiness among 158 nations. The Huffington Post (Gregoire, 2013) discussed a Harris poll whose most recent findings (2015) continued to indicate that about one-third of Americans consider themselves very happy. These sources seemed to say that things in the U.S. are not fantastic, but secession and revolution are a long way off.

Admittedly, a Fairleigh Dickinson survey (2013) found that 29% of Americans (44% of Republicans, 27% of independents, 18% of Democrats) think that an armed revolution might be necessary within the next few years to protect civil liberties. But a much larger minority (47%) disagreed with that proposition (Gwyn-Williams, 2013). And Democrats and Republicans would likely seek incompatible outcomes in such an event: most likely they would convert it into a civil war among themselves, and many would then be grateful if the army would suppress it.

The Whiteout Press (2014) author (and others, e.g., APCFM) appeared to be drawing at least some of his/her material from InfoWars.com. Specifically, Whiteout referred to

entire mock American cities being constructed and used as practice for US soldiers to fight American citizens in their own American towns . . . . [in which] the recurring military training exercise instructs US soldiers that an American town has been taken over by ‘Tea Party insurrectionists’ and the US military must fight and defeat them to return control back to Washington.

That appeared to be a conflation of two separate items reported by InfoWars (Watson, 2014). One was an essay (not, as InfoWars claimed, an “academic study”) in which Benson and Weber (B&W, 2012) imagine what would happen if “an extremist militia motivated by the goals of the ‘tea party’ movement takes over the government of Darlington, South Carolina.” (It is possible that B&W did not like, or understand, the Tea Party, but that is irrelevant to the purpose or substantive content of their scenario.)

In that essay, B&W do not offer a specific number, but let’s suppose that it would take at least 200 militants to set up and maintain roadblocks on Darlington’s interstate highways and otherwise gain control of major city functions and capabilities. B&W hypothesize a police force sympathetic to the militants, a mayor under house arrest, and a governor, reluctant to confront the Tea Party, who privately asks the federal government to restore order. B&W suggest that, as a legal exception to the Posse Comitatus Act (1878; see also Insurrection Act, 1807), these conditions would authorize the President to use the U.S. military on U.S. soil under 10 U.S.C. § 333. So at that point, in this scenario, the U.S. Fifth Army and the South Carolina National Guard are called to serve. B&W identify various legal and tactical difficulties these forces might face. For example, media scrutiny will be ongoing, and soldiers must assume that every instance of gunfire will be investigated. B&W do not carry their scenario through to completion: their purpose seems to be simply to identify potential issues for further discussion.

The InfoWars claim that this is “a shocking scenario” seems to be pure sensationalism. It is not shocking. It is also not likely within the near future. But in any case, one would certainly hope that military and civilian leaders would think about and plan for such possibilities (see Rand, 1999, Appendix D).

The other InfoWars item informing that Whiteout Press (2014) quotation (above) had to do with the Army’s construction of a mock city. A 300-acre Asymmetric Warfare Training Center (AWTC) was opened at Fort A.P. Hill in Virginia on January 24, 2014, consisting of “a unique urban complex” developed to help realize “the future of our Army” as an “agile and adaptive force” (U.S. Army, 2014). At first blush, the military’s video of the AWTC seemed to support the complaint of WJLA (Frazao, 2014) that this was a rather foolish thing to spend $100 million on. It was pretty small, and it did not appear “urban” at all (Metabunk, 2014). Troops would have had a much more realistic introduction to the gritty realities of third-world urban combat if they had instead gone to, say, Cincinnati, where they would have found “the largest abandoned subway tunnel in the United States” (Wikipedia) — not to mention that they could have used a plethora of abandoned subway stations and tunnels in New York, and a fair number of ghost towns and cities around the country, or perhaps available for rent in other countries. Then again, the AWTC was reportedly set up to be modified for different scenarios; for example, its generic office building could also function as an imitation bank or embassy.

Zhang (2014) notes that the Army has other facilities — notably, the National Training Center at Fort Irwin, California — that are designed for mass training in a Middle Eastern environment (see Wikipedia; Campbell-Dollaghan, 2013). Similarly, the artificial city built for U.S. Marines training at Twentynine Palms, CA — just one of several mock cities for Marine training — contains 1,560 buildings (Watson, 2011). Starmann (2015) pointed out that additional U.S. Army mock cities exist at Muscatuck, IN and at Hohenfels, Germany.

These comparisons supported my impression that the AWTC was not intended for mass training. I did think it could be useful in training small groups on how to overwhelm insurgents who might be holed up in a church or mosque — to cite two of the small list of building types that are evidently included in the AWTC — or in letting policymakers from D.C., 80 miles away, come out to observe what might happen in various kinds of staged conflicts. The latter seemed to be what the facility’s Col. John Petkosek meant when he told C-SPAN (2015) that his group “provides operational advisory support and solution development for the Army and Joint Force commanders” and that the training mission was “secondary.” From the part of his hourlong talk that I listened to, it sounded like the people being trained would tend to be a smallish cadre of advisors, not masses of troops. That was consistent with the nature of the Asymmetric Warfare Group (AWG), for which the AWTC was specifically constructed. It seemed, in other words, that the AWTC was intended to train expert soldiers whose efforts would be watched and studied by military planners.

What caught the attention of many commentators was that these facilities were very unlike the mock Middle Eastern facilities at Fort Irwin. These buildings — a church, an office building, a subway — were visibly American. That is, the Army seemed to be preparing to study and develop techniques for assaults that would take place on American soil. For example, Starmann (2015) contended that “When asked why the AWTC resembles a U.S. town with crystal clear relics of Americana, Army representatives were quick to dodge the subject, provide canned answers, or not respond at all to the question.” Along with the admitted possibility of preparations to fight Islamic extremists, Starmann said,

Finally, there is the darkest scenario – that the army and the Department of Homeland Security are planning for martial law in the U.S. . . . [O]ne must assume that the threat is comprised of various terrorist factions or perhaps, armed American insurgents. . . . [Some] believe that the AWG may be evolving into a domestic counter-insurgency unit. . . . Is the Army hiding something truly nefarious from the American public and from under the guise of Congress itself?

It was not clear what Starmann would consider nefarious. He seemed to feel that it would be inappropriate to use the armed forces against “armed American insurgents” — as if the concept of “asymmetrical warfare” built into the definition of the AWG did not include the use of unconventional weapons or tactics, potentially by domestic terrorists.

It appeared that Starmann and others were surprised to discover that the law does allow the use of military force on American soil under certain circumstances — that the Owens scenario (above), involving armed revolt by thousands of militia gangsters, really would be met with overwhelming military force if necessary. In a review of relevant law and court decisions, the Congressional Research Service (Doyle & Elsea, 2012) flatly concluded that the Posse Comitatus Act “is not violated when the Armed Forces conduct activities for a military purpose.” Govern (2013) cites a number of historical incidents when federal and federalized troops have lawfully aided state governments and enforced federal authority “during transitory crises, emergencies and disorders.” Examples of military suppression of large crowds of American civilians have included race-related riots and other violence, aggrieved WWI veterans, striking railroad workers, and post-hurricane civil disorder.

The InfoWars piece informing the Whiteout Press article (above) also appeared to distort and exaggerate other materials (compare e.g., Watson, 2012 with Metabunk, 2015). It seemed, in short, that some pro-gun sources found it profitable and/or stimulating to patch together random minor facts to try to invent a bigger story. The Whiteout Press article appeared to build upon this by connecting such factoids in a way that not even InfoWars had suggested. It began to seem possible that violent revolutionary efforts would be stimulated by — that, perhaps, some had already taken place due to — falsehoods peddled by people who had their own reasons, emotional or otherwise, for persuading others to get mad, kill people, and die, for the sake of a cause that they did not even really understand.

There seemed to be other examples of that sort of thing. For example, Hodges (2015) and McMaster (2015) expressed great alarm about a military training exercise called Operation Jade Helm; and yet that operation came and went and there does not seem to have been any reason at all for Hodges to call it “absolutely evil in its intent” (see Lamothe, 2015). Komenda (2014) of the Las Vegas Sun reports on the experience of accompanying militia gangsters, at the Bundy Ranch in 2014, who arrived with the plan of shooting federal agents as needed, based on the belief that the government intended to exterminate the Bundys (e.g., Baugh, 2014). Plainly, the government could have done that, if that had been a priority that any official concerned for his/her own career would have been likely to articulate.

Oaths and Oath Keepers

At this point in my exploration, I had not concluded that all pro-gun individuals or arguments were nonsensical. But I was concerned about nonsense that might underlie insurrectionary beliefs and actions like those described above. I decided to close with a review of the Oath Keepers organization.

History is filled with the stories of people, organizations, and nations that believed they were the good guys. How many armies have not marched into battle believing Gott mit uns? Aside from being patently blasphemous, such a belief serves to rationalize endless varieties of evil: yes, what we are doing on this particular occasion is very bad, but we are doing it to help God achieve his purposes, because he needs us, and in that sense we think it is very good. Never mind that it happens to coincide with what we wanted to do anyway.

Those remarks seemed, to me, to capture much of what the Oath Keepers were about. The website describes that organization as follows:

Oath Keepers is a non-partisan association of current and formerly serving military, police, and first responders, who pledge to fulfill the oath all military and police take to “defend the Constitution against all enemies, foreign and domestic.” That oath, mandated by Article VI of the Constitution itself, is to the Constitution, not to the politicians . . . .

In other words, the Oath Keepers are going to be the good guys. They are going to stay true to fundamental principles when everyone else is going astray. It is a great goal. But it is arrogant. It is in the spirit of Gott mit uns — the claim of those who want to believe they are better, smarter, more honest, or otherwise superior to their neighbors. It is a claim that demands to be tested.

Let us begin with the foregoing quote. It presents a number of false claims or implications:

  1. As phrased on another Oath Keepers webpage, there is a claim that all “military, reserves, National Guard, peace officers, fire-fighters, and veterans . . . swore an oath to support and defend the Constitution.” This is false in several regards: not all swear to an oath; among those who do, not all swear to the same oath; and not all such oaths refer to the Constitution. First, regarding the military, sources disagree as to the precise wording of the Army oaths (e.g., U.S. Army; 5 U.S.C. § 3331; Military.com), and the National Guard uses a somewhat different oath (32 U.S.C. § 304), which demands loyalty to the laws of the state and its governor as well as to the U.S. and its president. Second, the Oath Keepers page does not specify which peace officer oath it is referring to. If it means the Law Enforcement Oath of Honor recommended by the International Association of Chiefs of Police (IACP), then the oath adopted by a particular community may drop all references to the constitution, favoring instead references to laws, the king, or other authorities. For example, the oath for police officers in Garland, TX says, “I will seek to uphold the laws of this country, the State of Texas, my community, and the agency I serve,” with no reference to any constitution. Finally, first responders include firefighters, emergency management, public health, clinical care, public works, and equipment operators (Wikipedia). Not all have oaths. Among those that do, not all such oaths refer to the Constitution (e.g., the Firefighter’s Pledge).
  2. The quote claims that the oath is mandated by Article VI of the Constitution. Article VI provides for an oath by “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial officers.” There is no reference whatsoever to local police officers, non-officer soldiers, or first responders.
  3. The quote claims that the oath is to the Constitution itself. There is no support for this. Not even the oaths presented on that Oath Keepers page contain any wording of this nature (e.g., “To the Constitution, I pledge . . .”). The oath is simply one’s commitment regarding one’s own behavior. To understand this, one need only consider those cases where a person continues to keep a promise s/he made to someone who is no longer with us.
  4. The quote asserts that the oath is “not to the politicians.” Again, of course it is not an oath to any particular individual. But that does not mean everyone else is irrelevant. The Constitution clearly sketches out a plan that calls for a President, a Congress, a judiciary, and a government. Regardless of how the oath is interpreted, the person who rejects any of these parties is rejecting the Constitution.
  5. The quote states that Oath Keepers is an organization of individuals who “pledge to fulfill the oath” that they took upon joining the military or other service. This implies that the oath has not already been fulfilled, by completing the required years of military service. That may be true for veterans who are in a status (e.g., reserve, retired, constructive enlistment) that leaves them subject to recall, and for soldiers who find their discharge postponed or complicated for various reasons. The oath is also certainly an enduring emotional or personal commitment for many. It appears that veterans as a group tend not to be sure whether the legal obligation imposed by the oath continues after they leave the military. But Parker (2015) cites several reasons for the conclusion that, generally speaking, the legal force of the oath expires upon discharge, including these: (a) enlistment and reenlistment have traditionally required (at least) submission of the enlistment form and administration of the oath, implying that the oath is connected with the term of service specified in the contract (see Diloff, 1974, p. 123); (b) the oath of office taken by the President and others does not have a specified termination date, but has to be repeated every four years and is not considered to be effective after leaving that office; (c) veterans are not required to obey, for life, orders from the President and from their former commanders; and (d) former military officers are not subject to court-martial for speaking contemptuous words against the President or other politicians per 10 U.S.C. § 888, and enlisted veterans are not barred from political activity per DoD Directive 1344.10.
  6. The quote implies that the individual knows what the Constitution requires. That would be asking a lot. There does seem to be an assumption that the ability to read words is all that’s really needed to become an expert in the field of constitutional law. This is like assuming that the ability to distinguish green from gold-colored elements on a circuit board is all you need to be an electrical engineer. In the United States, even Supreme Court justices disagree with each other as to what the Constitution means. For example, as described in the accompanying post, Oath Keepers defending the interpretation of the Second Amendment before 2008 would have been in fundamental disagreement with Oath Keepers defending the interpretation of the Second Amendment provided by Justice Scalia in District of Columbia v. Heller. This is why we have oaths, codes, and laws: they replace personal opinions with shared obligations that must be observed if we are to achieve the nation that the writers of the Constitution intended.

So far, the assumption of superiority identified in the foregoing Oath Keepers quotation appears to be false. As just shown, the Oath Keepers webpage cannot even provide an accurate description of the oath they are keeping. And perhaps that should not be surprising. Stewart Rhodes, whom the Oath Keepers website describes as its “founder and President,” and who was evidently responsible for much of the content appearing on the organization’s website, appears to have a flawed concept of how laws work. In Arizona, Rhodes has been admonished by the Arizona Supreme Court, and removed by court order from representing a client whom he had neglected (Forbes, 2015). In December 2015, Rhodes was recommended for disbarment from practicing law in Montana (see Lenz, 2015). Persons examining the relevant materials may conclude that these things happened, not because Rhodes was the victim of a conspiracy, but because he was not there for the clients who were counting on him. Attorneys are typically required to take oaths pledging their commitment to the ethical practice of law. It appears that Rhodes lectures others on oaths, and yet may have a problem with them himself.

Let us continue, then, to examine what the Oath Keepers webpage says about a soldier’s oath in particular. Here is what it calls the Military Enlisted Oath, accompanied by the Oath Keepers explanatory Note discussing that oath:

I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

NOTE: While the enlisted oath does contain a pledge to obey the orders of the President and of commanding officers, that is still preceded by a pledge to “defend the Constitution,” and is also qualified by the requirement that such orders be “according to regulations and the Uniform Code of Military Justice.” Any order, by anyone, that is not constitutional or according to regulations, is unlawful and military personnel are not obligated to follow such orders – and, in fact, are obligated to refuse.

That Note is incorrect in a number of regards. First, it indicates that the sequence of items is important. Oath Keepers offers no authority for this belief. The fact that a statement refers to “faith, hope, and love” does not imply that faith must be the greatest of the three just because it comes first (see I Corinthians 13:13).

That Note from the Oath Keepers webpage asserts that any order “that is not constitutional or according to regulations, is unlawful.” This assertion displays a fundamental misunderstanding of where regulations come from. Federal regulations are issued by governmental agencies that answer to the President. The Note says, in other words, that an Oath Keeper must honor regulations issued by the President’s Department of Defense, but may refuse to obey an order of the President, who is Commander in Chief of the armed forces. That does not seem to make much sense.

That same assertion also implies that laws of Congress, consisting of the people’s elected representatives under the Constitution, are to be judged in light of federal regulations issued by the executive branch. That is a bizarre notion, for anyone concerned about preventing tyranny. Obviously, a tyrant is an executive, in a role comparable to the President. For example, Adolf Hitler was elected as a chief executive, not as a legislator. In committing themselves to prioritize the executive’s regulations over the laws of Congress, the Oath Keepers are positioning themselves as enemies of the people.

That Note from the Oath Keepers webpage calls for a decision as to whether an order is “constitutional or according to regulations.” That “or” is very confused. Regulations are not on a par with the U.S. Constitution. If an order is unconstitutional, it does not matter if it is permitted by regulations.

Finally, the Note appears to misconstrue the last substantive clause of the Military Enlisted Oath. That clause could be rephrased as requiring the soldier to obey orders, as regulations and the UCMJ require him/her to do. The Oath Keepers Note interprets it, instead, as saying that the individual soldier in the field must evaluate each order that s/he receives from the President and his/her commanding officer, so as to decide whether to obey it. There are two problems with that interpretation:

  1. This is, again, the hubris of those who do not know, or do not want to know, that military law is a legal specialty whose experts draw upon years of experience. The UCMJ and Title 32 of the U.S. Code of Federal Regulations (i.e., the set of federal military regulations) come to nearly a thousand pages. Only 18% of active-duty military personnel have a college degree (Pew, 2011). How is the average soldier supposed to know whether an order is compatible with the Constitution and with all applicable regulations? Even with a law degree, research to answer that question could take hours, if not weeks, especially in the unusual situations most likely to attract an Oath Keeper’s attention.
  2. The U.S. Manual for Courts-Martial (¶ 14.c.(2)(a)(i), 2012, p. IV-20) says, “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.” There is an exception only for “a patently illegal order, such as one that directs the commission of a crime.” Similarly, 10 U.S.C. § 892 requires only that orders be “lawful.” Example of “patently illegal” orders include murdering civilians and mistreating prisoners (Powers, 2014). The military places a high priority upon strict obedience and discipline. A soldier refusing to obey an order that is not patently illegal is at risk of court martial. If the order comes in a highly charged environment involving a perceived threat to national security, the penalty for insubordination may be severe.

Given such stakes, an active-duty soldier would be wise to make sure s/he understands very well what Oath Keepers membership entails. The Oath Keepers website provides this Declaration of Orders We Will NOT Obey:

  1. We will NOT obey any order to disarm the American people.
  2. We will NOT obey any order to conduct warrantless searches of the American people, their homes, vehicles, papers, or effects – such as warrantless house-to house searches for weapons or persons.
  3. We will NOT obey any order to detain American citizens as “unlawful enemy combatants” or to subject them to trial by military tribunal.
  4. We will NOT obey orders to impose martial law or a “state of emergency” on a state, or to enter with force into a state, without the express consent and invitation of that state’s legislature and governor.
  5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty and declares the national government to be in violation of the compact by which that state entered the Union.
  6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.
  7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.
  8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control” during any emergency, or under any other pretext. We will consider such use of foreign troops against our people to be an invasion and an act of war.
  9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies, under any emergency pretext whatsoever.
  10. We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

Some of those hypothetical orders seem farfetched. Except perhaps in sci-fi movies, there is no sign, for example, that cities are going to be turned into “giant concentration camps” (No. 6) or that foreign troops will be invited onto U.S. soil to maintain control (No. 8). But other items on that list call for broad and sometimes strange refusal to perform as soldiers. Consider these scenarios:

  • Order No. 3: in Hamdi v. Rumsfeld (2004), the U.S. Supreme Court decided the case of a U.S. citizen who was captured in Afghanistan after assisting the Taliban. According to Wikipedia, the Hamdi Court found that Hamdi was an unlawful enemy combatant and “recognized the power of the government to detain enemy combatants, including U.S. citizens.” But in item 3 in the list (above), Oath Keepers say the Supreme Court was wrong: they “will NOT obey any order to detain American citizens as ‘unlawful enemy combatants.'” Oath Keepers evidently feel that the first American soldiers who encountered Mr. Hamdi should have let him go back to rejoin the Taliban, so that he could resume shooting at them.
  • Order No. 4: in the Darlington scenario (above), the soldier will not know that the governor has privately asked the president to intervene. Because the invitation to the president is private, there will not be the “express consent and invitation” demanded by the Oath Keepers (above). Therefore, the soldier will refuse to obey a perfectly lawful order — because s/he thinks s/he should be able to tell that governor and president how to handle this sensitive political situation.
  • Order No. 5: the soldier refuses to obey an order to prevent a state from seceding. It appears most scholars agree that slavery was the primary issue provoking the southern states of the U.S. to secede in 1861 (e.g., Owens, 2013; Bryan, 2013; Loewen, 2011; Pierce, 2014; Quora, n.d.). The soldier following this Oath Keepers rule would reject the decision of Abraham Lincoln and would allow the southern states to secede in order to maintain slavery.
  • Order No. 7: suppose a type of encephalitis, causing people to behave in erratic and sometimes dangerous ways, has spread rapidly through a major city. Thousands are affected, and the numbers are rising. Health services are overwhelmed. The governor has asked the president to send troops to help separate out those are showing signs of the mental health problems associated with this disease. The soldier is given a protective suit to guard against the mosquitoes believed to be spreading it. But he refuses to assist, citing the Oath Keepers (Smith, 2014): “[M]edical martial law is absolutely unacceptable under ANY circumstances, including Ebola, in light of the fact that our current government will be the predominant cause of viral outbreak.” That Oath Keepers page rejects the idea that this is paranoia. Yet as the Washington Post (Krauthammer, 2014) admits, “Quarantine is the ultimate violation of civil liberties. Having committed no crime, having done no wrong, you are sentenced to house arrest or banishment. It’s unfair. It’s, well, un-American. But when an epidemic threatens, we do it because we must.” The U.S. response to potential pandemics has apparently been somewhat disorganized (e.g., Annas, 2007, p. 1096; Hodge, 2015). But in the event of a real national health emergency, a self-centered “every man for himself” mentality is likely to be even more dangerous and disruptive. Lynch and Cox (2010, p. 244) say that quarantine is one among several possibles response to pandemic — and that it has its place (e.g., saving many lives in Canada during the SARS outbreak in 2003). Ultimately, though, all this is beside the point. The soldier is typically not trained in medicine or public health. If s/he cannot take orders from people who have a better idea of what they are talking about, then s/he does not belong in the Army — and, in this scenario, his/her refusal to assist as ordered (see 42 U.S.C. § 264(b) and 42 C.F.R. § 70.6) might get him/her locked up and out of the way.

These scenarios involve specific situations in which the Oath Keeper refuses to obey lawful orders. But back it up a step. Is the enlisted soldier at risk of court martial before any orders are given, simply because s/he belongs to or participates in Oath Keepers activities? It is a question worth exploring. An enlisted Oath Keeper might look, for instance, at UCMJ § 894, which seems to say that sedition includes collaboration to overthrow government. It does make sense that a government would frown upon anti-government words or actions from its own soldiers, and upon association with others who engage in anti-government words or actions. Oath Keepers statements denying an obligation to obey orders from the president or from commanding officers may not be appreciated. Soldiers in active duty may also want to consider what a prosecutor might think if, as reported by SPLC, Stewart Rhodes really has announced a plan to create armed teams, comparable to Special Forces units, intended to teach whole communities to take up arms against the government. In addition, soldiers who have access to classified information might consider the “unquestioned allegiance to the United States” required under 32 CFR § 147.3.

The situation seems to be that Oath Keepers who are in active duty have taken an oath to perform as expected in the U.S. military. Then they have decided that they don’t like that oath, and would rather pick and choose the parts they prefer. So they have essentially renounced their military oaths and have given their commitment to Oath Keepers instead. This may make them feel like stalwart heroes, but it makes them look unreliable.

There is also the problem that belonging to a group that flatters itself on its special insight or moral superiority will predictably foster distance between colleagues. That happened, for instance, in Jersey City, where Three Percenters (i.e., officers with views like those of the Oath Keepers) began to separate themselves from the rest of their colleagues and were disciplined accordingly (Conte, 2013).

The Oath Keepers website does allow for collection of names, addresses, and $40 annual membership fees from individuals. If the FBI or other law enforcement agents demand the membership list from Oath Keepers, or are otherwise able to identify those soldiers who have joined that organization (from e.g., the records of payments received and checks cashed), prosecution and/or court martial might be feasible in some cases.

At this writing, it seemed that the laws should be enforced against these gangsters as against any others, though the large numbers of participants may encourage amnesty or light penalties in less extreme cases.

************** SUMMARY & CONCLUSIONS **************

This post consists of two parts. Part One summarizes a handful of well-known confrontations or standoffs between armed members of militia groups and law enforcement agents. Part Two explores certain ideas that appear to influence the views of some militia group members.

The contents of this post were developed through an investigative process that was not always direct, concise, and linear. Collectively, the contents capture an attempt to get a sense of what the militia and patriot movements have been trying to say and to achieve. New and sometimes confusing ideas injected themselves along the way. That explains, for example, the discussions of Posse Comitatus, Sovereign Citizen, and Sagebrush Rebellion in Part One.

My purpose in writing these words was to record the process of exploration, so that I could review it later and share it with anyone who might find it interesting. I began with a cautious attitude toward guns: I had grown up in a house with guns, I had encountered guns occasionally in adult life, and I had interacted with people who loved guns, and also with people who hated them. I was interested in learning about militia perspectives, and was willing to be shown things I didn’t know or hadn’t considered.

I did acquire somewhat more sympathy with gun lovers in this exploratory process. I was also determined to be as fair as possible. At the same time, I was not willing to endorse sheer nonsense. And, unfortunately, as I went along, I did encounter a lot of nonsense on the pro-gun side. It was not that I necessarily disagreed with those who were hostile to the federal government. I had worked in a federal agency myself, and had seen the kinds of silliness, waste, and corruption that can flourish in such places.

What happened to me, in this process, was that my patience was worn down. I encountered one group or individual after another who said and/or did foolish or hostile things with or in the name of guns. That was not a universal reaction. For example, Randy Weaver did not seem to deserve what he experienced at Ruby Ridge. But too often there were small-town and rural people who did not know, and did not seem to want to know, how the large majority of Americans would view their gun culture. There seemed to be a sort of outlaw romance to the idea of the lone wolf or the small group, perceiving itself as morally superior, standing up against the bulk of American society.

It seemed to me that there were legitimate points to be made and legitimate concerns to be addressed. But I agreed with those who felt that military confrontations against the federal government would only harden public opinion against the militants. The confrontational strategy, threatening outright warfare against the feds, also appeared highly unrealistic. Again, I did not blame militia people for being frustrated with the government. I just felt, in the end, that they were still thinking in terms of acts that amounted to domestic terrorism, in an age when that sort of thing was going to be completely unacceptable. I concluded that they needed to find another way.

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