Commentary & Opinion
3:50 pm
Tue May 20, 2014

Stephen Gottlieb: The Threat of Self-Styled Armed Militias

Some of us remember having to sign loyalty oaths. In the language of the U.S. Supreme Court, one had to swear that he or she had not “advocate[d] the overthrow of government by force, violence, or any unlawful means.”

That included the overthrow of “the Government of the United States or of any political subdivisions.” In the 1950s everyone from barbers to professors had to sign those things and even cafeteria workers got fired on mere suspicion of disloyalty, the absence of proof notwithstanding.

Of course it was political. Senator McCarthy famously attacked President Truman and many of the people in the cabinet as disloyal. Republicans attacked Democrats and liberals as if they supported a Communist invasion. It was a campaign of character assassination. Charges were brought without facts that prosecutors were willing to reveal until the Supreme Court pointed out that it had the obligation to insist on fundamental due process like the right to see the charges and confront witnesses. But at least, at some level, however misguided, it was about patriotism.

Now, a group of armed self-styled militiamen blocked the federal government from charging Cliven Bundy the fee for grazing his cattle on federal land. Then they took their weapons to a closed federal canyon, to open it by force for use by ATVs. They bluntly deny the authority of the federal government. To make it worse, prominent Republicans called Bundy’s refusal to pay for grazing his cattle on federal land, and the armed intervention of his militia supporters, “patriotic.” Since when is it patriotic to brandish guns in the face of federal workers doing their jobs? Is it Republican policy and their definition of patriotism that the threat of violence and overthrow of government are OK so long as it is against government headed by Obama?

One could defend the policy of the Bureau of Land Management charging for the use of federal land or blocking ATV’s from use on sensitive park lands. But that is not the point.

This armed law-in-your-own-hands, and law as whatever you decide it should be, is the modus operandi of Boco Haram in Nigeria, street gangs in some American cities, the Taliban of Afghanistan and the cartels of Mexico. We can let our own country sink to the level of Third World killing fields or we can stop it now.

Freedom is not the license to make one’s own law to impose on society. That creates a shared tragedy and victimizes the most decent members of the society on behalf of the people who are least bothered by intimidating others with weapons so everyone will do what they and only they want. It is also a prelude to the loss of self-government as fear and the potential of violence takes over. That has been the trajectory to dictatorship in many countries and several are trending that way now.

Who is willing to cry foul? Is the NRA willing to cry foul or is this the natural extension, or indeed the intended purpose of the NRA? Republicans who supported the show of force backed off only to the extent that they disavowed Bundy’s subsequent racist comments but they left standing their description of the “patriotism” of the self-appointed militia.

These are not trivial issues. Some conservatives claim to treat the Constitution as sacred. And some trash the institutions it created. Apparently patriotism needs to be enforced with loyalty oaths, requiring that each and every one agree that they do not and will not advocate or participate in “the overthrow of government by force, violence, or any unlawful means,” whatever the party or color of the President. Agreeing to abide by peaceful democratic process has to be a shared and mutual commitment.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. This commentary was broadcast on WAMC Northeast Report, May 20, 2014.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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