LIBERTY REEF (FCP) March 28, 2016 – Okay. Serious question. The folks who “occupied” the Malheur National Wildlife Refuge are regularly referred to in media accounts as “armed militants” or as an “armed militia.” Yet, not one of these “protesters” ever used a weapon during the whole ordeal. In fact, even when LaVoy Finicum’s truck was first fired at, Ryan Payne (one of the alleged militia leaders) got out of the truck peacefully and surrendered without incident. At the shootout, where LaVoy was ultimately killed, despite being fired upon repeatedly none of the “protesters” ever handled a weapon. I know there is a debate about LaVoy reaching for a gun before he was shot and killed – but the fact is, prior to his death, not one of the folks in his truck grabbed a gun or started shooting. All this, despite the fact that, as the media repeatedly reports, there was a truck load of guns and ammo. So, here is the question.
If these “armed” men (and women) and this citizen’s “militia” is to be condemned for possessing arms – during their protest and “occupation” – how do we reconcile that with the Second Amendment (and the First Amendment thereafter)?
Let me explain. In 2008 the United States Supreme Court weighed in on the question of “why” the Second Amendment exists. In a long consideration of the history of the people’s right “to bear” arms – the majority held that one of the main purposes of this “right that is exercised individually and belongs to all Americans” D.C. v. Heller, 554 U.S. 570, 581 (2008), is related to resisting state and federal government’s when they are engaged in overreach. In fact, courts in the Seventh and Ninth Circuit’s reviewing the same history have observed that this right “contains both a political component-it is a means to protect the public from tyranny-and a personal component-it is a means to protect the individual from threats to life or limb. Cf. Amar, supra, at 46-59, 257-66.” Nordyke v. King, 563 F.3d 439, 451 (9th Cir. 2009) vacated, 611 F.3d 1015 (9th Cir. 2010).
I’d like to ask you to think about this for a minute. Do the people really have a right to bear arms, as part of their individual, unsanctioned efforts to resist government overreach? Many, many people would say no. But, the United States Supreme Court has ruled that we do. But, before I put the question to you, and before I make my final point about the Heller decision, I want to point out a reference in a recent 9th Circuit case (that was reversed on other grounds) where the court there recognized that it was the “experience” of the colonists “when they set out to form a government” that the people had to have this right, inviolate, to deter tyranny.
“This lived experience informed the colonists when they set out to form a government. They considered, by the light of experience as well as of education, that preserving the right to bear arms was the appropriate way both to resist the evil of standing armies and to render the evil unnecessary. See Heller, 128 S.Ct. at 2800-01. Advocating for the new Constitution, Hamilton argued that “if circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens … who stand ready to defend their own rights and those of their fellow-citizens.” The Federalist No. 29, at 153 (Alexander Hamilton) (Clinton Rossiter ed., 1961). As it was to many of his fellow citizens, a citizenry possessed of arms and trained in their use “appear[ed] to [Hamilton] the only substitute that c[ould] be devised for a standing army, and the best possible security against it, if it should exist.” Id.”
Nordyke v. King, 563 F.3d 439, 454 (9th Cir. 2009) vacated, 611 F.3d 1015 (9th Cir. 2010)(“While the generation of 1789 envisioned the right as a component of local resistance to centralized tyranny, whether British or federal, the generation of 1868 envisioned the right as safeguard to protect individuals from oppressive or indifferent local governments. See Amar, supra, at 257-66. But though the source of the threat may have migrated, the antidote remained the same: the individual right to keep and bear arms, a recourse for “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” 1 Blackstone, supra, at *144.”)
In the same Nordyke decision cited above, the Ninth Circuit also observed that this right actually makes us all more secure. “[A] lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived…[it also] is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.” Id. at 464-65.
The thinking here is that political tyrants eliminate citizen resistance by systematically enacting laws and decisions that “tak[e] away the people’s arms” in order “to suppress political opponents.” D.C. v. Heller, 554 U.S. 570, 598.
So, my question is, if an armed “citizens’ militia” is the constitutional “safeguard against tyranny” as outlined in Heller, what does that look like? In Heller the court reemphasized the warning of Justice Story that: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms” and preventing the people from “resort[ing] to the militia.” A Familiar Exposition of the Constitution of the United States § 450 (reprinted 1986).
All of this is settled law. So, apart from what would have happened if the Oregon “occupation” would have resulted in any of the “protesters” actually using their weapons (and they did not), doesn’t it also become a speech act, an expression of the above settle law, to protest accompanied with the “bear[ing] of arms.” And, doesn’t the very act of prosecutors holding these men in prison prior to trial – because of their “alleged danger” fit the very warning of Justice Story and the modern Supreme Court.
Is it ever comfortable for the government or its agents or agencies to be resisted by the people? Is it ever nice and friendly when citizens have real grievances including against what they perceive to be actual and growing tyranny?
I know that it is something many people would prefer to pretend away as irrelevant to them – but at some point – aren’t “we the people” free to protest in a way that our government finds unbearable? If not, what is the purpose of protest? Because, if a protest against government overreach – with the mere presence of arms – is to be considered unlawful and easily quashed by bureaucrats and armed task forces, what avenue is left to the “citizen’s militia” besides the use of those same weapons in some future resistance?
God save us from the disastrous “leadership” and fractured intellect of people like Oregon Gov. Kate Brown, Nevada Sen. Reid, Harney County “Judge” Grasty and all their supporters who can’t seem to tell the difference between a citizen patriot and a domestic terrorist. One way or the other – this distinction is going to become increasingly clear and it will be the blood of patriots – past or present – that will ultimately win the day.