Thursday in Oregon, federal authorities moved in to surround the last four holdouts occupying Malheur National Wildlife Refuge in a protest against federal land policy. All four have now surrendered. When rancher Cliven Bundy flew into Portland, Ore., Wednesday with plans to support the protest, he was arrested.
By contrast, nearly two years ago in Nevada, federal authorities backed off when confronted by armed militiamen led by Mr. Bundy, who refused to pay a $1 million grazing fee in protest against federal land practices.
The starkly different responses show how federal officials are changing their response to an evolving challenge to their authority.
While the occupation of the Malheur refuge echoes many past actions by antigovernment militias, it also fits into an emerging trend, as a new breed of protest blurs the line between constitutional rights and armed insurrection.
In Oregon, the occupiers claimed their First Amendment rights to protest against the government’s land policies. But they also asserted their Second Amendment rights to open carry. Was the protest a peaceful demonstration by legally armed Americans or a thinly veiled attempt to intimidate by threat of deadly force?
In the West, where the gun played a major role in Manifest Destiny, the issue has become particularly visceral, entwined with antigovernment action. Elsewhere, it is more a provocative statement of individual rights.
Either way, “what we are seeing is new,” says Christian Turner, a professor at University of Georgia School of Law. “If you do look at guns as bearing messages, and people talking with their guns by carrying them, you can’t ignore one thing they undoubtedly say: I can kill you. Whatever else you intend to say, you have a machine that can instantly cause death.”
To be sure, the United States has seen dramatic armed protests before. In 1967, the Black Panthers, armed to the hilt, entered the California statehouse in Sacramento, launching the modern gun rights movement.
But the blooming of the US gun culture since the federal assault weapons ban expired in 2004 – combined with reaction to the Obama presidency from the right – has led to new iterations. America has watched armed Oath Keepers patrol the margins of protests in Ferguson, Mo.; the open-carry movement bring guns to Starbucks; the campus-carry movement allow students to pack heat; and now a growing number of armed actions in the West.
Those trends have led to the deeper question of whether such “speech” can and should be limited.
A matter of methods
The Malheur occupiers argue that their actions were intimately tied with free speech rights.
“To those who disagree with my speech or our civil disobedience and may dislike our ideas regarding that the land belongs to the people, please remember that you do not want free speech to be retaliated against by government officials,” said Ammon Bundy, Cliven Bundy’s son and an original leader of the occupation, after he was arrested last month while leaving the refuge. “If you do not advocate for government to tolerate ideas that it hates, then the First Amendment and free speech mean nothing.”
But the methods of such agitators have raised questions.
“This movement is ... innately violent,” says David Niewert, coauthor of “Over the Cliff: How Obama’s Election Drove America’s Right Insane.” “That’s what these guys are doing in Oregon – there was an inherent threat of violence when they took over this refuge. They didn’t have to wave guns to make that threat clear, they just had to be packing them. They’re trying to force their view on the rest of us at gunpoint. And right now, these guys feel encouraged and empowered ... [and] ready to roll.”
So far, the US government has struggled to contain what authorities say are growing numbers of armed confrontations. For example, men in hoods pointed a Glock handgun at a federal employee in 2014. In response, the Bureau of Land Management began removing the agency’s decals from trucks as a precautionary measure.
“It’s one of those things now we’re going to be dealing with,” BLM spokesman Eric Reid told the Southern Poverty Law Center. “A lot of [people] have taken that attitude toward the government.”
Last year, armed militants descended upon a disputed gold mine near Merlin, Ore., to conduct what they called a “security operation for the protection of Constitutional Rights.” The attempt to goad federal agents into a confrontation fizzled. Another potential armed showdown over mining rights in Montana also fell off the radar amid a series of massive forest fires that hit the state.
In Oregon, federal authorities on Wednesday at least drew one line in the sand.
After standing down from the Nevada protest in Bunkerville two years ago, the Federal Bureau of Investigation’s gambit Wednesday and Thursday in Oregon – along with the arrest of Ammon Bundy last month – suggests that Washington isn’t willing to cede much more ground.
“I think at Bunkerville, the Feds were completely floored, they weren’t prepared for it and hadn’t figured out how to handle it,” says Mr. Niewert, the author. “It looks to me as though, after Bunkerville, they went back and did some assessments on how to handle these situations and realized that you can’t just let people get away with breaking the law.”
Where are the legal lines?
The Malheur occupiers may have overstepped a significant legal line, others say.
“One reaction to what the Sagebrush guys are doing is that we have a process for deciding what to do on national wildlife refuges, and it’s democracy,” says Professor Turner of Georgia School of Law. “There’s something about armed militant reaction that claims not just the right to be heard, but the right to control.”
The perceived federal tyranny that the Malheur occupiers stood against comes in the form of bureaucratic grazing issues and environmental rules that limit mineral exploration. Those rules are seen as sucking economic vitality out of rural communities.
But the intersection of gun rights and free speech rights is playing out nationwide in various ways.
“The West has been shabbily treated by Washington for a long time, so guns are just secondary [in the Malheur occupation],” says Larry Pratt, the executive director emeritus of Gun Owners of America, in Charlottesville, Va. “But in other parts of the country where guns are displayed, it’s more in the philosophical tradition of the Second Amendment [as a check on tyranny], saying, in essence, ‘I’m a free man.’ ”
It’s an exceedingly thin line, legal authorities say, between the gun as free expression and the gun as squelcher of others’ expression. On one hand, eight states now allow residents to carry weapons almost anywhere they want, without special permits or licenses – the so-called constitutional carry movement. Several states now allow weapons in their state legislative chambers.
But such normalizing of gun carry has its own First Amendment implications, critics argue, even when there’s no overt protest at hand.
Texas, for example, will begin to allow campus-carry of guns later this year, sparking sharp warnings from some academics who say the new rules endanger the spirit of free expression on campus.
“The mere presence of guns can intimidate and thwart free speech,” University of Texas professors Jorge Canizares-Esguerra and Patrick Timmons wrote on the History News Network site in November. “But more important, guns directly challenge our individual First Amendment right to control the bond of trust and community that is constitutionally under our care.”