Consider This A Warning: The Second Amendment Works

Thomas Warns*

This past week a showdown over grazing fees almost escalated into domestic warfare in Nevada. In a nutshell, Cliven Bundy refused to pay grazing fees to the federal government for the last two decades, which prompted the Bureau of Land Management to attempt to remove “trespass cattle” which they assert were grazing on public lands to the detriment of endangered desert tortoises (Harry Reid also may have been involved somewhere, although it seems unlikely).

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Unfortunately, the BLM absolutely botched its response; they decided to bring over 200 government officials and private contractors who were armed to the teeth to Clark County in order to confiscate the cattle. Nevada Governor Brian Sandoval immediately spoke out, saying “no cow justifies the atmosphere of intimidation” that the BLM created. Some low points for the BLM included establishing small, remote “First Amendment Areas” for people to protest the seizure, and the tasering of Cliven Bundy’s son. This prompted many small government conservatives and militia members, many of them armed, to rally around the Bundy Ranch, both physically and on the internet.

Fortunately, the Bundy Ranch showdown ended peacefully on Saturday afternoon when calm prevailed and the Bureau of Land Management decided to withdraw, citing “safety concerns.” The BLM then returned the confiscated cattle, but vowed it had not given up the fight to enforce their court order. Whether they try to take the cattle in the dead of night or merely give up the fight has yet to be seen, but the last chapter in this story has yet to be written.

Two conclusions should be established immediately. The first is that Cliven Bundy’s legal argument is incredibly weak. Bundy has claimed that the lands belong to Nevada and not the federal government, and thus the federal government does not have jurisdiction to tax him for grazing on public lands. Unfortunately, his own state’s Constitution betrays him. The Nevada Constitution, which was approved by vote in 1864, disclaims any ownership to “unappropriated public lands” within the state, leaving them to the federal government. Since Cliven Bundy has stated that his family started ranching in the 1880s, it seems clear that, absent other evidence, the land he was ranching on was part of the 81% of Nevada’s land that was left for (and is still owned by) the federal government.  Adverse possession is not an optional, as both statutes and common law have repeatedly reaffirmed that the government may not lose land to adverse possessors.

Of course, to say that his act was illegal is not to say that it couldn’t be “right” in a certain sense of the word. Bundy’s larger complaint was that the federal government owned such substantial tracts of land within Nevada that should belong to the state, a fact that is true of many other Western states. Utah has already tried to take possession of federal land within its boundaries. Hopefully this incident will restart a dialogue about sending the federal land out west to the states; without Bundy Ranch, it would be easy for East Coast urbanites to never think about this policy issue which affects millions (it is easy for East Coast residents to ignore this because it is not an issue for them; for example, less than one percent of New York State’s land is owned by the federal government).

The Second Amendment is not an anachronism in an age of jet planes and tanks: it still works.

Further, this protest brought attention to the Taylor Grazing Act, a relic of the New Deal which created “grazing districts” throughout the West which were managed by a federal bureaucracy, the BLM. Perhaps it is time we rethink that piece of legislation. Maybe the Act was needed during the height of the dustbowl to provide centralized protection of the land from overgrazing by desperate farmers, but the situation has changed considerably in the last 80 years. Cliven Bundy’s wife alleged that the Bundys used to be bordered by many other ranchers, but that over the years mounting grazing fees created a heavy burden, and ultimately all the nearby ranchers but her husband were bought out using the ranchers’ own grazing fees, suggesting that the program is causing serious financial harm to ranchers without bestowing any benefit.

The second conclusion to draw from this is that the Second Amendment is not an anachronism in an age of jet planes and tanks: it still works. Even if you think – with good reason – that what Cliven Bundy did was both illegal and “wrong,” the conduct of the BLM was deplorable. This incident would have never become a national debate if not for the hyper-militarized response of the BLM, which spent $3.1 million in a standoff involving $1 million in unpaid grazing fees and a need to protect a desert tortoise population more at risk from suburban sprawl and habitat destruction than a few hundred cows. America is not a police state, and citizens were justified in protesting the way government officials acted.

Of course, the whole incident shows why a robust Second Amendment was needed. The fact that Bundy and his supporters had guns is the only reason why this standoff ended the way it did instead of like Tiananmen Square. The thuggish BLM tried to force protesters to exercise constitutional rights in tiny First Amendment areas, but the protesters – backed by firearms – refused to cave. Don’t forget that the Bundy’s supporters never fired a shot – even when they were being tasered and attacked by dogs.

America has a long history of individuals who broke the law to stand up to injustice. Civil disobedience unfortunately is called terrorism by those who disagree with the protester's message. 

America has a long history of individuals who broke the law to stand up to injustice. Civil disobedience unfortunately is called terrorism by those who disagree with the protester's message. 

These peaceful protesters joined a long line of Americans whose civil disobedience was patriotic, and it was made possible due to the Second Amendment. It’s no wonder the Southern states moved so quickly to deny freed slaves their Second Amendment rights after the Civil War ended; African Americans were then defenseless when the KKK, lynch mobs, and Jim Crow terrorized them for another century. In that instance, the government could claim African Americans were acting illegally when trying to exercising their rights, but the real terrorists were the government that enabled harm to fall upon the freedmen and their descendants. It is a shame that a large part of the country treats the Second Amendment as some sort of second-class constitutional right, not worth protecting as much as the others. To some, all constitutional rights are equal, but some are more equal than others.

The BLM has stated that the matter is not over, and it seems that at the end of the day, Cliven Bundy will have to remove his cattle from the federal land and/or pay the overdue grazing fees. But those people who stood beside him with their rifles are not “terrorists” as some have suggested. They peacefully expressed their displeasure at a tax they thought was wrong and at a government that abused their rights, a statement that equally fits the Boston Tea Party. The country will not suddenly descend into chaos as armed groups try to subvert every use of government force – only the most serious government overreaction could trigger such a powerful grassroots response. It shows that people are deeply concerned about these issues that hundreds would stand in harm’s way to defend a total stranger, but Americans should always be willing to stand up to a government when it is out of control.

As Dave Mustaine once sang, “it’s still ‘We the People’ right?”

*Thomas Warns is a J.D. Candidate, class of 2015, at NYU School of law, Staff Editor on the NYU Journal of Law & Liberty , and author of the weekly column "Consider This a Warning."