If you ever wonder how people could be stupid enough to vote Republican, you have only to look at Ammon Bundy’s defense of himself and his fellow conspirators in the takeover and occupation of the Malheur National Wildlife Refuge this past January. He was arrested 26 days later with several of his followers, the rest dispersed or surrendered within a few days.
Bundy’s defense now that he sits in jail is about as far-fetched as his justification while he was terrorizing an entire community. On the other hand, being shown to be in violation of previous Supreme Court ruling isn’t going to predispose other domestic terrorists to become law-abiding citizens. We have ample evidence of how conservatives feel about the Supreme Court when it doesn’t rule in favor of their misguided preconceptions.
Here is the thing: Bundy says he was just exercising his First Amendment rights when he seized federal property, because, so goes his argument, the federal government can’t own property. He and his co-defendants interfered with federal employers when they seized the wildlife refuge but according to Bundy, if the federal government can’t own property, they sure can’t pay people to work on it.
And this isn’t just Bundy spouting nonsense here. He has actual lawyers, who presumably went to law school, spouting it for him. Presenting Bundy’s attorney Mike Arnold, who says his client isn’t a lawbreaker, but just a “patriot” who had every right to do what he did. Writes co-counsel Lissa Casey in a motion to dismiss for lack of jurisdiction,
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“The motion to dismiss in this case will challenge the Federal Government’s authority to assert ownership over the land that is now known as the Malheur National Wildlife Refuge. It is Defendant’s position that this authority is critical to the Federal Government’s authority to have federal employees work on that land.
“Jurisdiction in this case will determine whether the Federal Government can prosecute protesters for being there at all.”
On this basis, they wanted the charges dismissed. To no one’s surprise, Judge Anna Brown said no. You know, because of that pesky thing called the law:
“The Court notes it appears Ammon Bundy’s anticipated motion relies on the type of historical and legal facts that do not ordinarily necessitate an evidentiary hearing or the examination of live witnesses. Accordingly, the Court directs Ammon Bundy to file any necessary supporting material in the form of declaration(s) together with his anticipated motion.”
The supporting material will focus on the Enclave Clause (Article 1, Section 8) of the United States Constitution. The Enclave Clause allowed for not only the establishment of military depots and forts in various states, but for the establishment of the District of Columbia and the federal capital.
Casey wrote that,
“Defendant will cite to the Enclave Clause for the Government’s power over such property once it stops being a Territory and becomes a State.” In other words, “Congress lost the right to own the land inside the state, except for purposes outlined in Article I, section 8, clause 17 (Enclave Clause) of the United States Constitution.”
The Oregonian relates that “similar arguments have been made by other defendants in federal court in the past, without much success”:
Most recently, a Bundy co-defendant Kenneth Medenbach attempted to make that same argument in U.S. District Court in Eugene, but federal Judge Michael J. McShane dismissed it as lacking merit.
The only fly in the ointment is that this matter was settled in 1935 by the Supreme Court when the wildlife refuge they seized was established to be on federal land in the first place: The United States v Oregon.
The original decision, written by Justice Harlan Stone, found that the United States had not surrendered its claim to the land in question and that “the state has no right, title, or interest in any part of the remainder of the area, which is superior to that of the United States.”
There is literally nothing going for Bundy’s chosen defense. Another Supreme Court ruling, Kleppe v. New Mexico (1976) also established federal land ownership. As the Portland Patch tells us,
“The unmistakable legal reality is that a series of solid, indisputable U.S. Supreme Court cases establishes that the federal government is constitutionally empowered to own land, control that land through federal statutes and regulations as it sees fit, and dispose of that land if it chooses to “without limitation,” Willamette University Law Professor Susan Smith wrote in a paper she was requested to research and write by the Association of Oregon Counties in January.
Bundy plans to go all the way back to 1787 to overturn 200 years of legal precedence, citing previously unknown documents (probably still in the process of being written by David Barton) and calling witnesses who are willing to make appallingly absurd statements about the role of the federal government and the legality of a few men seizing what is the common property of all Americans.
If it looks like the Bundy defense team is stretching things just a wee bit it is because they are doing precisely that.
Their entire defense is predicted upon the idea of a weak federal government a la the Articles of Confederation, and they seem to be conflating that document with the United States Constitution, which established a stronger federal government.
It is an effort certainly doomed to failure, but an effort necessitated by the Liberty Movement’s long-established claim to the federal government that “You’re not the boss of me!”
Hrafnkell Haraldsson, a social liberal with leanings toward centrist politics has degrees in history and philosophy. His interests include, besides history and philosophy, human rights issues, freedom of choice, religion, and the precarious dichotomy of freedom of speech and intolerance. He brings a slightly different perspective to his writing, being that he is neither a follower of an Abrahamic faith nor an atheist but a polytheist, a modern-day Heathen who follows the customs and traditions of his Norse ancestors. He maintains his own blog, A Heathen’s Day, which deals with Heathen and Pagan matters, and Mos Maiorum Foundation www.mosmaiorum.org, dedicated to ethnic religion. He has also contributed to NewsJunkiePost, GodsOwnParty and Pagan+Politics.
