Libertarian Law Prof Debunks Bundy Nonsense

As some of the more militant libertarians, especially the anarcho-capitalists, flock to the support of Cliven Bundy in his standoff with the federal government, most of the libertarian-minded law professors are debunking their absurd claims and pointing out how gloriously wrong those people are. Josh Blackman is one of them.

First, Bundy seems to reject the Constitution’s property clause. (It was a wonderful twist of scheduling fate that I assigned the “Property Clause” in ConLaw the week after the Bundy Ranch standoff. ) In an interview he said that the federal government has “no jurisdiction or authority” on his grazing rights. Under the Property Clause, Congress has the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The land at issue was owned by the United States prior to Nevada statehood as a territory. I suspect Bundy will argue that his family has obtained a prescriptive easement on the land, as it has continuously, openly, and (absolutely) hostilely, grazed on the land for 170 years. Though, adverse possession is not permissible against the federal government.

Second, Bundy does not accept the supremacy clause, as he said he has “no contract with the United States government.” To the extent that BLM, pursuant to the Property Clause enacts regulations concerning land the government owns, then yeah, he has a contract with the government. Those are the Supreme Laws of the land.

He also goes into the Equal Footing Doctrine, which Bundy and his supporters are completely distorting. And he links to a post by Walter Olson (a legal scholar with the Cato Institute with whom I’ll be having dinner in a couple weeks when I’m in Maryland giving a talk), who quotes Ted Frank in a comment on his Facebook page:

I hate to see how many on my side who are upset at Obama’s violation of the Rule of Law cheer the Bundys’ criminal contempt of a court order. The Bundys are claiming a right to graze upon federal lands without paying or consent of the landowner on the grounds that the federal government has no sovereignty over Nevada. The US BLM has taken twenty years and multiple court proceedings to kick them out, winning twice in the Ninth Circuit. In response, armed militias showed up this week to defend the Bundys, who have threatened range war. The government has temporarily caved to avoid the possibility of armed confrontation. This really isn’t a close question, and threatens to tar all small-government and Second Amendment supporters.

No, it isn’t a close question. But the people being tarred are those who are supporting Bundy and his utterly inane position. And bear in mind that Bundy’s position is so radical that he says, “I don’t recognize the United States Government as even existing.” That’s simply delusional. And frankly, it’s high time the man was arrested for his flagrant flouting of the law for 20 years. And if that sparks a fight with a few hundred extremists who flocked there just for that fight, so be it.

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  • robertfaber

    For a guy who doesn’t recognize the federal government, he sure does ride around on a horse waving the Us flag a lot.

  • doublereed

    He’s not just a libertarian. He’s aligned himself with the Patriot Movement, like Richard Mack, who argues for Posse Comitatus Theory. It’s more like people like Alex Jones, than the Cato Institute.

    Libertarians wish they were as crazy as these guys.

  • fmitchell

    The government’s legally in the right, but I can see how they want to avoid a PR disaster. These yahoos are spoiling for a fight, and if they get it they’ll become victims (or martyrs) of an oppressive gummint. That could attract even more idiots to their cause, especially in this age of the Tea Party and Birthers. And that’s assuming federal law enforcement doesn’t screw up, like they did at Waco.

  • D. C. Sessions

    They’re talking insurrection. The adults are (rightly) trying to keep anyone from going home in a box — but at what point does that just invite more and more extreme confrontations?

    The usual question is how would this be playing out if instead of raising cattle and telling the Feds to piss off, he were raising hemp and telling the Feds to piss off?

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    I’m with Bundy. I pledge Allegiance to the flag of the United States of America whose laws I don’t accept and to the Republic for which it stands but I don’t…

  • Kevin Kehres

    These nuts don’t seem to understand that their opponent has helicopters, airplanes, and missiles.

    If they’re really and truly declaring war on the government, do they think their puny little arsenal is going to be worth diddly-squat against a 19-year-old kid sitting in Vegas with a drone-controller joy stick?

    Bah. The feds are just biding their time. The FBI, even without military support, has way plenty of firepower. They’re being compassionate. But I’ll tell you this, if those loons start shooting first — well, it won’t be pretty.

  • Konradius

    I personally would have had a jet fighter cross the sound barrier above these people. That would have made the point in a non lethal but very clear way…

    Hey it’s federal lands, those can be used for military practice, right?

  • D. C. Sessions

    I personally would have had a jet fighter cross the sound barrier above these people. That would have made the point in a non lethal but very clear way…

    An Apache (how appropriate) helicopter would do just as well. And unlike jets, you can drive cattle with helicopters. Maybe not terribly precisely, but certainly driven. But scrubby as those cattle are, that’s not really a good way to treat them.

    This is really the kind of thing that the old British Riot Act was created for. Read the Act to the insurrectionists, tell them they have a reasonable time (a few hours) to disperse, and after that everyone remaining inside the boundary will be subject to prosecution. After that nobody (and nothing) enters, and anyone leaving does so under arrest.

  • countryboy

    Nah, not a fighter, a few Cobra gunships laying down a burst in front of them would have them too busy cleaning out their shorts to fire a shot.

  • raven

    At this point, it is a PR battle. Bundy is an incoherent fraud and that is so obvious, even Glenn Beck of all people saw it.

    At this point the question is, how to enforce the law without anyone getting killed. The militias don’t care if they get killed. They want to be dead martyrs.

    These are lower class whites being used as goon squads by people like the Koch brothers, who encouraged them to travel to Utah. Needless to say, the Kock brothers think they are useful idiots and doormats for the oligarchs.

    It’s like Iraq. The feds can easily win the battle and then lose the (propaganda) war. LIke Ruby Ridge and Waco. And anyway, it’s just cows and money, not worth human lives.

  • raven

    Bundy is 67 and won’t live forever. The feds will probably last longer and can play a long game.

    To resolve this without dead people, I would:

    1. Put a lien on the 160 acre property he does own. Maybe even foreclose on it for unpaid debts, since Bundy owes $1 million.

    You don’t have to try to evict him which probably won’t work peacefully. But it puts pressure on him. He could just negotiate the title to his house for keeping his cows off of our land.

    2. He’s running his cattle on 1/2 million acres, far more than his original grazing allotment. The BLM could just keep rounding up the outliers.

    This has problems too. The Bundy mob might just shoot the BLM as cattle rustlers. Already the BLM is afraid enough that they only send people out there in pairs. OTOH, one dead BLM employee and the Bundy gang are murderers. (I doubt any of the feds want that job though.)

    3. Just indict him and put out a warrant for his arrest. He’s in contemp of court, a thief, interfering with the duties of a police officer, and possibly a death threater.

    If he just wants to sit out on his ranch let him. That will work until he needs medical care.

    4. Seize his bank account. I seriously doubt if he even has one any more though.

    I’m sure someone can come up with more ways to put pressure on him than this. There is always a solution that is quick, obvious, easy, and…wrong. Dead people over a few cows isn’t a good idea.

  • lofgren

    I agree with raven. This is not a fight worth letting federal agents who are just trying to do their job die over. That’s not fair to them or their families. And honestly I’m uncomfortable with people being so gung-ho about starting a war they know they won’t have to fight just because the enemy will lose.

    If they’re really and truly declaring war on the government, do they think their puny little arsenal is going to be worth diddly-squat against a 19-year-old kid sitting in Vegas with a drone-controller joy stick?

    They know that the federal government has to play by rules of engagement and also be cognizant of the long-term PR of any action they take. The militia guys don’t have those restrictions. That, and they have been fed a load of crap about the effectiveness of insurrectionist warfare by far-right websites. It’s true that if these guys spent years fighting a low-level war, their terrorism might have the effect of drawing more to their cause (nothing recruits like success) and their puny arsenal might be enough to keep them dangerous. That’s significantly less true when they are all gathered in one place and the feds know exactly where they are. That’s not insurrection, that’s suicide – except for the fact that they know they won’t be nuked from orbit.

  • felidae

    If Bundy denies the existence of the Federal Government, why is that asshole riding around waving an American flag instead of a Nevada state flag?

  • eric

    I’m sure someone can come up with more ways to put pressure on him than this.

    I suspect that simply rerunning his recent interviews on national television and radio will go a long way towards cutting off material and media support for his cause. Not even FOX probably wants to be associated with someone who talks about “the negro” and black people being better off as slaves. I don’t think the wait will be very long now. Another month or two and they’ll be facing one guy with a rifle, not fifty guys and a host of TV cameras.

  • D. C. Sessions

    The militias don’t care if they get killed. They want to be dead martyrs.

    No, they don’t. To them this is LARP and they’re playing the “willing to die for FREEDOM” roles. But the good guys are always the ones who are still standing at the end. Martyrs are OK, as long as it’s someone else.

    If they’re called in a situation where the other side can shoot back (and is far better prepared, man for man, to do so) all but a very few of them [1] will fold like they’re holding a busted straight.

    [1] Never assume that nobody on the other side is totally insane.

  • teele

    This seems to me to be, at its heart, a simple matter of property rights. We, the people of the United States, own the land Cliven Bundy is using to graze his animals. He is using our property, without our permission, and not compensating us for the use. I haven’t seen any of the Boyz with Gunz who have rallied to his defense offering Mr. Bundy the use of their back yards to graze his cattle, at no charge.

    Mr. Bundy’s views on black people living in poverty are interesting. He thinks they would be better off as someone’s property, rather than being subjected to the horrors of the welfare state. Since Mr. Bundy is a the living example of a Welfare Queen, sucking at the teet of the federal government, perhaps he, too, might be better off is he was owned.by another individual. He is welcome to come work for me for room and board (a sleeping bag in my garage, and all the leftovers we generate), and I’ll treat him real nice — it will be physical labor, but nothing so backbreaking as picking cotton. Of course if he tries to run away, I might have to hire some of his Boyz with Gunz to hunt him down, but I just know he’ll be much happier with this arrangement that he is now.

    Also, I loved the BwG who said the plan they’ve come up with in the event of an attack by the feds is to use women as human shields. I guess he’s just admitting that feminism has achieved its goals. Unarmed women are a better first line of defense against these lil’ fellers than even their fanciest, most pimped out weaponry. That’s two barriers they can hide behind, giving them extra time to cut and run if things get really serious!

  • iknklast

    I teach highly conservative students in the middle of the country. They are believers in grazing rights. When they hear how much the taxpayer is paying for individuals to graze federal lands at such low rates, they have a partial turn about. They still believe in grazing rights, but they definitely think those grazing should be the ones paying for the privilege, and not the taxpayers.

    The media, though, is helping out Bundy’s side. I saw an article today referring to him as “the man who is standing up to the federal government”. That makes him sound like someone who is in the right, who is having his rights taken away, and is standing up bravely, not like someone who is selfishly using land that belongs to someone else, and grazing at taxpayer expense, then whining when the owner of the land (the government) tells him to stop. When the media chooses what phrases they use to describe someone, they effectively take sides.

  • http://polrant@blogspot.com democommie

    The NYT piece that I read a day or two back pretty much ignored the illegality of what Bundy is doing and focused on his machismo and his posse. If some of those morons decide to fire on federal employees I can see the RICO statutes being used to send them to jail along with their pal, Cliven.

  • freehand

    Plus he lied to get support – he put his neighbors and allies in an armed confrontation with the feds over lies. His family bought the ranch in 1948 – when he was two years old. They didn’t start grazing on federal land until a few years later. The BLM spends more money on this program than they take in. All the ranchers who use public land are subsidized heavily by us, through the usual obscure and unpublicized paths. But at least most ranchers pay those token fees. He’s lived off the public teat so long, he thinks he is entitled to it even without the fees. He breaks contracts; he is not a man of his word. His cattle have overgrazed the land, and its ecosystem is in ruin. Bundy is a liar, a welfare queen, a vandal, a traitor, and a thief.

    Get off my lawn, asshole!

    .

    http://www.dailykos.com/story/2014/04/21/1293671/-Breaking-news-on-Bundy-Ranch#

  • http://itsmyworldcanthasnotyours.blogspot.com WMDKitty — Survivor

    Here’s an idea: arm the cows

  • Michael Heath

    Glad to see some libertarians attempting to distance themselves from Bundy. However libertarians still suffer from the same thinking defect as Bundy. That’s the advocacy for certain privileged groups while failing to acknowledge government protection of others’ rights and frequently, even the existence of competing rights by others. Especially when protection of such infringes on the privileges and rights of groups favored by libertarians.

    Therefore, Mr. Bundy’s merely descended further down the same rabbit hole we typically find libertarians dwelling within, including Cato’s Walter Olson. Olson bemoans employment laws that he claims causes businesses to needlessly suffer, while repeatedly failing to sufficiently consider the benefits of having laws protecting individual employees.

  • TxSkeptic

    I’m all for them arresting Bundy, BUT:

    For fuck sake, can they learn from their mistakes at Ruby Ridge & The Branch Davidian compound. Don’t storm into his ranch with a big pseudo army and go all mach on him and his goon friends. How about they lay low, run surveillance on the guy, and quietly nab him at the grocery, liquor, or feed store when he doesn’t have all his nutty buddies with him. In other words, law enforcement should stop thinking with their dicks.

  • https://www.facebook.com/kalli.procopio Kalli Procopio

    He claims he doesn’t recognize that the US government even exists. Which must mean that he can’t be a citizen of a country that doesn’t exist, therefore he isn’t a US citizen. Therefore he is a hostile armed alien operating illegal inside the confines of the United States. Snag him and deport him. Put him on a boat, take him outside the 200 mile limit and drop him off. He can petition to any country he can swim to for citizenship.

  • James Barnes

    I hope you people are kidding? The United States as it currently exists as a corporation has a jurisdiction of 10 miles square and lands ceeded by the state for dock yards and military and other needful buildings not for grazing lands and 84% of any state. There are 3 different and distinct United States in law maybe Cliven just knows the difference between the “Republic” and the corporate treasonous democracy that has been operating defacto in America since 1871. You people need way more education. The FED is treason, The Patriot Act is Treason…The NDAA is treason the wars, all of them in the middle east are treasonous terrorism….. and you people seem to be drinking the flouridated kool aid for all it is worth… Law is not hard…none of you have lost a dime nor could you prove you have from Clivens actions and the US owns nothing, because it is a fiction, that evil men hide behind, to accomplish their fascist, murderous, evil agendas…and the supremacy clause is for lawful acts, not stealing range lands for Harry Reid to sell to the chinese, out from under America….. Get a clue…

  • raven

    The FED is treason, The Patriot Act is Treason…The NDAA is treason the wars, all of them in the middle east are treasonous terrorism…..

    Oh look!!! A crazy person!!!

  • Nick Gotts

    Mr. James Barnes, may I present reality? It’s clear that you two are not acquainted.

  • Michael Heath

    James Barnes writes:

    maybe Cliven [Bundy] just knows the difference between the “Republic” and the corporate treasonous democracy that has been operating defacto in America since 1871. [. . . ] and you people seem to be drinking the flouridated kool aid for all it is worth . . .

    It’s flouridated Kool-Aid®; cease making the term generic or Kraft’s copyright attorneys will be all over your ass.

  • Reginald Selkirk

    James Barnes #24: You people need way more education.

    Either that or more hallucinogens, which seems to be your substitute.

  • Reginald Selkirk
  • http://artk.typepad.com ArtK

    @D.C.Sessions

    To them this is LARP and they’re playing the “willing to die for FREEDOM” roles. But the good guys are always the ones who are still standing at the end. Martyrs are OK, as long as it’s someone else.

    I made a similar comment on Ophelia’s blog. The right almost always prefer the story to the reality. If there’s a story where they can be the hero, so much the better. Bundy and his supporters have fallen for the story of the romanticized Old West. They’re playing out an adult version of Cowboys and Indians with real guns instead of pointed fingers. One wonders if he gets teary-eyed at the mention of Randolph Scott or John Wayne.

  • rickk

    We need to develop better non-lethal ways of dispersing groups of ignorant men with guns. Perhaps crop-dusting with lice or fleas or fire ants?

    All-night convenience stores play Barry Manilow music in their parking lots to disperse idle youth. Couldn’t the government use the same tactics with these yahoos in Nevada? Maybe some loudspeakers playing rap music or Hillary Clinton campaign speeches?

  • dingojack

    Hmmmm …. Who has greater creditability when it comes to issues raised by the US Constitution: Josh Blackman (President of the Harlan Institute, a not-for-profit whose focus is on the study of the Supreme Court of the United States and on constitutional law) or some rambling, incoherent guy on the Internet called James something? Gee — that’s a real toughie.

    Dingo

  • http://www.ranum.com Marcus Ranum

    Poor silly gun-toting idiots. I don’t like it when the state demonstrates its monopoly on violence, but conceptually I think it’d be funny as hell to go up to those cheesebrains and say, “HI, I’m so-and-so from the department of defense. And we thought we’d maybe teach you guys something. So when I leave in a few minutes, an M1a1 main battle tank is going to come over that hill there and drive up to you at point blank range – about 120 yards – and zoom back and forth and you’re welcome to pew pew pew at it with your little guns and make macho noises until you’re out of ammo. And that can continue until 10:00pm, at which point it’ll be thoroughly dark, and the tank crew is authorized to use its thermal sights, main cannon, and coax .50 to engage any targets that are still within a mile of here.”

  • Gvlgeologist, FCD

    I think James Barnes is Modusoperandi in disguise. Notice that we’ve never seen them at the same time.

    The only difference is, Modus is funny.

    Oh, and more or less sane.

  • http://polrant@blogspot.com democommie

    I like this guy’s take on B-U-N-D-Y, B-U-N-D-Y, B-U-N-D-Y; down on BUNDY Ranch.

    http://www.arktimes.com/arkansas/real-ranchers/Content?oid=3274067

    “Maybe some loudspeakers playing rap music or Hillary Clinton campaign speeches?”

    Or, the ultimate weapon, Hilary rapping.

    @24:

    Lay offa the Jimson weed, Jim.

  • http://motherwell.livejournal.com/ Raging Bee

    This really isn’t a close question, and threatens to tar all small-government and Second Amendment supporters.

    Yeah, sometimes the moderate loonies have to take a stand against the extreme loonies. Sometimes…

  • colnago80

    This clown “James Barnes” sounds like a sockpuppet for “Randy Lee” over at Mano’s blog.

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