The County Supremacy and Militia Movements ... - MavDISK

The County Supremacy and Militia Movements: Federalism as an Issue on the Radical Right 

Author(s): William Chaloupka 

Source: Publius, Vol. 26, No. 3, The State of American Federalism, 1995-1996, (Summer, 1996), 

pp. 161-175 

Published by: Oxford University Press 

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The County Supremacy and 

Militia Movements: Federalism 

as an Issue on the Radical Right 

William Chaloupka 

University of Montana 

This article reviews two of the most visibleforms of the populist right resurgence in Amercan politics, 

the county rule and militia movements. Both of these efforts have phrased their claims in the terms of 

federalism, constitutionalism, and sovereign legitimacy-terms that have not often been so prominently 

identified with such radical organizing. The essay reviews the origins of both county rule and militia 

movements, as well as their activities during 1995. The article reviews the arguments of each movement 

relating to American federalism. The county rule movement denies federal ownership of lands, among 

other activities. The militias challenge the governmental monopoly on the use offorre, drawuing upon a 

tradition of "militia " conscription in early American history. Neither argument has fared well in several 

lawsuits, but the political appeal has been significant. 

Even before the Oklahoma City bombing in April 1995, observers knew 

that a new, populist right-wing turn had taken place, especially in the western 

states. As intense media coverage subsequently revealed, radical anti- 

government groups had grown rapidly. At least on the movement's margins, 

its capacity for violence had also expanded. In this essay, I review two of the 

most visible forms of this populist and rightist turn, the county rule and 

militia movements. Both of these efforts have phrased their claims in the 

terms of federalism, constitutionalism, and sovereign legitimacy- terms that 

have not often been so prominently identified with such radical organizing. 

It is difficult to assess even the approximate strength of these movements. 

Proponents issue improbably high estimates, for obvious reasons. 

Law enforcement tends to offer low estimates, perhaps due to the intermittent 

character of their attention to these groups. Individuals and organizations 

dedicated to monitoring the movement offer various estimates. Since the 

movements are often secretive, no reliable count is possible. This much is 

clearer about the strength of the populist right; the movement has captured 

significant attention in local and national media, it has sometimes set 

the agenda of legislative debate, and its most adamant fringe has proven 

capable of remarkable violence. 

? Publius: The Journal of Federalism 26:3 (Summer 1996) 

161

162 

Publius/Summer 1996 

One estimate of the movement's strength stands out. Soon after the 

Oklahoma bombing, the Washington Post and ABC News conducted a poll 

that addressed issues of the new right radicalism.' Although surveys have 

shown that support for these groups has withered since the Oklahoma bomb- 

ing, the level of support identified in this poll was extraordinary. The poll's 

summary offered this assessment of the support for extreme movements; 

"Thirteen percent of Americans support private armed militias...Twelve 

percent are afraid of the government, 9 percent are angry at it, nine percent 

say violence against it can be justified, and six percent call it their 

'enemy."' Almost apologetically, the poll summary explained that "Six 

percent, while a small share is 11 million adults." 

While many political centrists have emphasized the general decline of 

public trust and confidence in government in recent decades, the radical 

right has elaborated those sentiments, producing several gradations of 

antigovernment ideology. This essay begins with overviews of both the county 

movement and the militias, before turning to a discussion of their similarities 

and differences and a review of their constitutional and federalist arguments. 

COUNTY MOVEMENT OVERVIEW 

In the lexicon of the new rightist radicalism, "the county movement" refers 

to a loosely organized network of groups and individuals that promotes 

increased power for county government and decreased federal authority, 

especially over public lands. This new county movement is an offshoot of 

the anti-environmentalist "Wise Use" movement, itself a reinvigorated progeny 

of the antigovernment Sagebrush Rebellion that attracted much attention 

in the late 1970s and early 1980s.2 (The county movement has nothing 

to do with the more commonplace discussion of county prerogative to set 

tax rates and take other action independent of state government, a debate 

long known as the "county home rule" issue. Accordingly, I will refer to the 

current activity as the "county movement," although it is also sometimes 

known as the "county sovereignty movement," the "county rule" movement, 

or simply Sagebrush Rebellion II.) 

Monitoring groups point to Catron County, New Mexico, as the site of 

the beginning of the county movement.3 This sparsely populated rural 

county, located in the state's desert southwest, first passed "county rule" 

"'Distrust of Government," ABC News/Washington Post Poll, 17 May 1995. Posted to America Online 

(keywords ABC/NEWS/POLLS), transcript ab5np036-7. 

2For a comprehensive Wise Use review, see Phil Brick, "Determined Opposition: The Wise Use Move- 

ment Challenges Environmentalism," Environment 37 (October 1995): 16-28. 

'DanielJunas, "Rise of Citizen Militias," Covert Action Qunrlerly 52 (Spring 1995): 14-20. See Netscape 

version: http://www.worldmedia.com/caq/militia.html (27January 1996).

The County Supremacy and Militia Movements 163 

ordinances in 1991.4 Ordinances were passed asserting county precedence 

over federal authority in environmental planning; declaring that federal graz- 

ing permits were private property; outlawing reintroduction of wolves, bears, 

or cougars; and threatening the arrest of any federal official who objected 

to these measures.5 Nye County, Nevada, has also been the source of ordi- 

nances copied by other western counties. Nye's ordinance denies federal 

authority "to own, hold, or exert its dominion over any public lands except 

for whatever land it needs for its own governmental purpose," presumably 

including military bases.6 

Nye County gained national visibility when a group, led by a county 

commissioner, acted on its ordinance staging a confrontation in which two 

forest rangers faced perhaps two hundred protesters. A road, that the Forest 

Service had closed for repairs, was bulldozed open at the protest.7 When 

the United States Department of Justice filed suit against Nye County on 

8 March 1995, it explicitly did so in order to challenge other counties' anti- 

federal ordinances, as well as Nye's ordinances. AJustice Department spokes- 

man explained, "One of the purposes of this lawsuit was to send a message 

to counties everywhere that the arguments behind this kind of action have 

no legal merit. We're filing it in the one county that's done the most to 

enforce [an anti-federal lands ordinance]."8 

Many other counties are involved; as many as fifty-eight western counties 

have passed ordinances similar to those enacted in Nye and Catron.9 Bills 

reflecting the county movement's concerns have also been introduced in 

several state legislatures and in the Congress, albeit without much success.10 

Sometimes, the protests have focused on county official actions, rather than 

on legislation. In Owyhee County, Idaho, a respected county sheriff with 

twenty-four years in office announced that his county was off-limits to federal 

law enforcement activity, notifying the Bureau of Land Management (BLM) 

'Kenneth S. Stern, A Force Upon the Plain: The American Militia Movement and the Politics of Hate (New 

York: Simon & Schuster, 1996), pp. 122-123. The first legal test of a county supremacy ordinance 

occurred in Lincoln County (NM) v. United States, 1992, which was dropped when the Bureau of Land 

Management issued a letter promising to cooperate with the county. SeeJim Carrier, "Rebels Ride Again: 

Nevadans Take On Federal Sovereignty," Denver Post, 21 January 1996, pp. Al, A16. 

5Paul Rauber, "National Yard Sale: Threats to Federal Ownership of Public Lands," Sierra 80 

(September/October 1995): 28-31, and Paul Rauber, "Wishful Thinking: Wise Use Cowboys Try to 

Rewrite the Constitution," Sierra 79 (January/February 1994): 39-42. 

'Rauber, "National Yard Sale," 28. 

7The episode led to a CBS "48 Hours" segment and a Time cover story. Erik Larson, "Unrest in the 

West," Time 146 (October 1995): 52-66. See also Richard Reinhardt, "Nevada: a Phony Showdown with 

Real Guns" Wilderness 59 (Winter 1995): 11. 

'Valerie Richardson, "Westeri Counties Dare Washington to Enter Land Duel," Washington Times, 

2 April 1995, p. A7. 

'Rauber, "National Yard Sale," 28. 

"For example, bills have been introduced in the Congress by Senator Craig Thomas (R-WY), 

Representative James V. Hansen (R-UT), and Senator Conrad Burns (R-MT) that would have forced the 

BLM to divest some land holdings and face severe budget cuts. Valerie Richardson, "On Western Range, 

BLM is Hated Federal Regulator," Washington Times, 15 October 1995, p. Al. For example, Arizona 

bankrolled a $1 million fund (called the "Constitutional Defense Council") to finance lawsuits against 

federal law enforcement officials, and considered a bill that would have imposed a $500 bounty on any 

endangered Mexican wolves that might be reintroduced by federal agencies; "Arizona Leads Fight Against 

Federal Regs," Washington Times, 10 March 1995, p. A10.

164 


that they no longer had authority to act as armed officers of the law. The 

sheriff was criticized in a newspaper editorial that complained that this 

"distinguished and seasoned officer" was now, sadly, "sucking up to the 

anger of the moment" and acting like "some ill-informed crank out in the 

boonies. "' 

Like Nye and Catron, most of the prominent counties in the movement 

are rural, low population counties in the West, where a large proportion of 

the land is federally owned. In Nye County, 93 percent of the land is federally 

owned. A dramatic mismatch exists between the federal government with 

its considerable administrative capacity, on one hand, and these countieswhich 

often possess minuscule governmental infrastructure-on the other. 

The political logic of these disputes is complicated by the fact that so much 

of the dispute centers around grazing rights and fees. While some ranchers 

argue for less government involvement in regulating grazing on public lands, 

others contest the possible threat of higher federal grazing fees (fees which 

environmentalists claim are much lower than the markets would set)."1 In 

a sense, the latter group is hoping for return to an earlier, more lucrative 

era of federal involvement. 

Some observers believe that the contemporary county movement will be 

more persistent than its predecessor, the Sagebrush Rebellion. That earlier 

initiative quickly disappeared-a victim, in one scholar's view, of diffusion in 

the wake of political gains (including President Ronald Reagan's appointment 

of James Watt as Secretary of the Interior) combined with resistance 

within the administration to the idea of privatizing (or "conveying" to the 

states for privatization) federal lands, an idea the original Sagebrush Rebels 

had never pushed, but were nonetheless identified with in the press.13 

Rancher Hugh McKeen, a Catron County commissioner, says, "this 

rebellion, this time, this one will go to the end. It's going to be Civil War if 

things don't change."14 The BLM has taken threats against its agents seri- 

ously enough to issue a "County Supremacy Safety Ordinance," ordering 

field agents to observe precautions such as notifying supervisors of travel 

plans: "Do not leave the BLM compound without radio communications 

capability....Avoid areas with a known potential of conflict."'5 The Justice 

"Valerie Richardson, "No-nonsense Idaho Sheriff Tells Federal Law Officers to Stay Out," Washington 

Times, 27 August 1995, p. Al. 

'2For examples of lawsuits over grazing rights issues, see Cliff Gardner v. United States, 1994-1995 (United 

States District Court affirmed the federal practice of issuing grazing permits on U.S. forest land), Hat 

Ranch v. United States, 1995 (Otero County, New Mexico rancher tried unsuccessfully to pay federal 

grazing fees to his county government), and Simplot Livestock and Bell v. United States, 1995 (United States 

District Court confirmed the Forest Service's authority to change riparian standards on grazing permits, 

and as appealed). See Carrier, "Rebels Ride Again," A16. 

"3R. McGreggor Cawley, Federal Land, Western Anger: The Sagebrush Rebellion and Environmental Politics 

(Lawrence, KS: University of Kansas Press, 1993), pp. 123-142. 

4Vince Bielski, "Armed and Dangerous: The Wise Use Movement Meets the Militias," Sierra 80 

(September/October 1995): 33-35. 

15Rauber, "National Yard Sale," 28.

The County Supremacy and Militia Movements 

Department took the Catron County sheriff seriously when he threatened 

to arrest the head of the U.S. Forest Service;Justice in turn threatened the 

sheriff with arrest.'6 

Although the confrontational atmosphere that once prevailed in Catron 

County has reportedly calmed,'7 it would seem that there are enough 

resolute activists in Nevada and elsewhere to keep the movement alive. But 

whether the radical margins of the county movement retain their vitality, a 

more mainstream movement to defend and expand states' rights has been 

gathering momentum. No less mainstream a figure than the director of 

the National Conference of State Legislatures' Washington, D.C., office published 

an extensive study of developments in state legislatures-including 

initiatives such as Charlie Duke's Colorado legislation and other measures 

usually grouped.with the county and Wise Use movements. This study, published 

in NCSL's State Legislatures, concluded that "the movement to restore 

the balance may succeed in any event. It could succeed because so many 

state officials are angry and believe there is a chance-that may not come 

again-to do it now."'8 

MILITIA OVERVIEW 

165 

Kenneth S. Stern, the American Jewish Committee researcher whose book 

provides the most comprehensive view of the current situation in print, 

locates the emergence of the militia movement with the development 

(February 1994) ofJohn Trochmann's Militia of Montana, in direct response 

to the disastrous raid by federal agents of Randy Weaver's Ruby Ridge, Idaho, 

cabin. Trochmann's wife Carolyn had delivered food to the Weaver 

family-and assisted in the delivery of Vicki Weaver's baby-during the 

several months when the Weavers stayed at their cabin to avoid federal prosecution 

of Randy Weaver for gun law violations.19 In early 1994, intense 

militia organizing activity began in many states, with membership meetings 

sometimes drawing audiences in the hundreds, even in rural areas with 

tiny populations.20 

ByJanuary 1995, researchers labeled this the fastest-growing radical right 

movement any of them had ever seen.21 The influence of these groups, 

while hard to assess, was at least generally confirmed when the Congress 

felt compelled to hold hearings on two of the militia's favorite topics, 

'6Richardson, "Western Counties Dare Washington," A7. 

'7Susan Zakin, "New Mexico: Conflict in Catron County: Struggle Over Grazing on Public Lands," 

Wilderness 59 (Winter 1995): 22-26. 

'8Carl Tubbesing, "Fed Up with the Feds," State Legislatures 21 (April 1995): 10-15. 

'9Stern, A Force Upon the Plain, pp. 12, 26. Stern (p. 36) also notes important 1992 precursors of the 

militia movement, including Bo Gritz's suggestion, made during his 1992 vice presidential run on David 

Duke's ticket, that militias be formed. 

2Stern, A Force Upon the Plain, p. 72 provides these attendance figures for meetings in Montana: 150 

persons in Billings, 200 persons in Great Falls, 250 persons in Hamilton, over 300 persons in Big Timber, 

and 800 persons in Kalispell. 

"Stern, A Force Upon the Plain, p. 13.

166 


federal law enforcement's excesses at Waco, Texas and Ruby Ridge, Texas 

(and also invited militia leaders to testify at their own hearing) during the 

summer of 1995. 

In tracing the development of the militias, observers often emphasize 

linkages between militia leadership and earlier racist or paramilitary orga- 

nizations. One monitoring group, the Klanwatch project of the Southern 

Poverty Law Center, routinely lists some militia groups as having "racist 

ties."22 Some visible militia leaders have explicit connections to Richard 

Butler's Aryan Nations compound in Hayden Lake, Idaho. (Butler and 

Trochmann squabbled in an exchange of public statements over whether 

the latter had been involved in the Aryan Nations.23) In a more general 

sense, aggressive antigovernment rhetoric and paramilitary organizing long 

have been staples of rightist groups in the United States Precursors range 

from the Ku Klux Klan to the Minutemen in the 1960s, to the Posse Comi- 

tatus and the Order (members of which murdered Denver, Colorado radio 

host Alan Berg24) in the 1980s. Still, there have been debates among the 

monitors about how accurate it is to label the militias as racist.25 Militia 

leaders deny that their movement is based on racist ideology, and at a 

Congressional hearing, Trochmann compared the movement to "a giant 

neighborhood watch."26 While that statement may test the limits of credulity, it 

is clear that the militias have tried to suppress racist elements and have 

instead emphasized the martyrdom of those killed at Ruby Ridge and Waco. 

By informed count, there are well over 200 militias and support groups 

operating in perhaps thirty-six states.27 Although various groups have 

claimed the mantle of national leadership of these often quite independent 

groups, media attention has focused on the Militia of Montana and 

the Michigan Militia, including the latter group's roving recruiter Mark 

Koernke. This attention is probably justified; the Montana group is the 

movement's most aggressive publishing operation, having sent out thousands 

of packets showing how to organize a militia.28 Michigan has earned 

its role through alleged indirect connections with the Oklahoma bombing, 

and through Koernke's role as an energetic motivational speaker. Michi- 

gan militia leader, Norman Olsen, has been a particular media favorite, 

clad in military fatigues and armed with ready sound bites. 

22See "Special Militia Task Force Edition," Klanwatch Intelligence Report 78 (June 1995): 1-4. 

23Stern, A Force Upon the Plain, p. 70. 

2401 the order, see Kevin Flynn and Gary Gerhardt, The Silent Brotherhood (New York: The Free Press, 

1989). 

25Stern, A Force Upon the Plain, p. 245. See also Michael Novick, White Lies White Power: The Fight Against 

White Supremacy and Reactzonary Violence (Monroe, ME: Common Courage Press, 1995). 

26"Militia hearing in Congress," televised on CSPAN, 15June 1995. 

27See "Special Militia Task Force Edition," pp. 7-11, and Stern, A Force Upon the Plain, p. 96. Some state 

by state information is available online: http://paul.spu.edu/-sinnfein/adl.html (27 January 1996). 

2sStern, A Forte Upon the Plain, p. 75.


Militia organizing has focused on the actions of the Bureau of Alcohol, 

Tobacco, and Firearms (ATF) and Federal Bureau of Investigation (FBI) at 

Waco and Ruby Ridge, but subsumes those events into a larger analysis. 

Militia of Montana publications and videos report an international conspiracy 

threatening the country. The United Nations is claimed to have 

conspired with elements in United States politics to generate a "New World 

Order," presaged by the appearance of black surveillance helicopters, the 

movement of old Soviet army equipment into locked compounds in Louisiana, 

and the like. Testifying before the Congress, militia leaders also 

referred to weather manipulation as an example of excessive government 

activity.29 Even after the elements of the conspiracy theory were decisively 

refuted (for example, the archaic Soviet vehicles had been imported by a 

dealer who hoped to sell them), the militia movement found other antigovernment 

arguments. Environmental laws, affirmative action programs, and 

above all, the Brady Law (enacted in 1993) and other gun control 

measures are common topics, linked in support for greater states' rights.30 

Given the importance of gun control and the Second Amendment to 

recent rightist organizing, the crucial language of that amendment has been 

constantly quoted: "A well-regulated Militia, being necessary to the security 

of a free State, the right of the people to keep and bear Arms, shall not be 

infringed." Although it seems unsurprising that the radicals would eventually 

focus on the militia reference in the amendment, current militia arguments 

are still bold. By extending their claims to gun ownership in this way, the 

militias are mounting a challenge to one of the most basic activities of 

sovereign government: namely, its prerogative to monopolize the use of 

force. 

COMPARISONS AND CONTRASTS 

167 

The more radical elements of the county movement share ideological 

elements with the militia movement. This is best expressed by the idea, 

long espoused by the radical right, that the county is (or should be) a privi- 

leged level of government and that the sheriff is the most important elected 

official in American government. The name of a radical tax protester group 

visible in the 1980s, Posse Comitatus, literally refers to the power of the 

county.3' In its survey of militia organizations, the Anti-Defamation League 

has noted several cases where county and militia movements at least share 

goals and rhetoric.32 Human rights groups report that the militias push the 

29"Militia Hearing in Congress," televised hearing on CSPAN, 15June 1995. 

30For a discussion of the implications of gun control for federalism, see CarolJ. DeFrances and Steven 

K. Smith, "Federal-Sate Relations in Gun Control: The 1993 Brady Handgun Violence Prevention Act," 

Publzus: TheJournal of Federalism 24 (Summer 1994): 69-82. 

"Julas, "Rise of Citizen Militias." 

"2Anti-Defamation League, "An ADL Fact Finding Report: Armed & Dangerous: Militias Take Aim at 

the Federal Government," (October 1994). Available online at: http://paul.spu.edu/-sinnfein/adl.html 

(27January 1996).

168 


anti-environmental, property-rights message. Eric Ward, of the Northwest 

Coalition Against Malicious Harassment says, "the militia groups are using 

the property rights groups as an organizing base."33 

In areas with militia activity, the agendas of Wise Use, the militias, and 

the county sovereignty movement sometimes overlap in vivid ways. In Ravalli 

County, Montana, where militia and tax protest activities drew national attention 

during 1995, then-County Commissioner Steve Powell says he was 

threatened by a militia associate due to county consideration of land-use 

provisions. At one county meeting, five men arrived wearing pistols. 

Despite the fact that the county is experiencing unprecedented and rapid 

growth, officials backed off land-use planning proposals.34 

The Wise Use-affiliated National Federal Lands Conference (NFLC) of 

Bountiful, Utah, republished Militia of Montana information in a 1994 

bulletin.35 (The NFLC is hardly marginal to the Wise Use movement; at one 

point, it listed Wise Use leader Ron Arnold as an advisory council member.36) 

The first national Wise Use meeting was sponsored by NFLC and 

held in 1989, in Silver City, New Mexico, near Catron County.37 From the 

beginning, the Catron County movement has combined elements from the 

anti-environmentalist Wise Use movement with paramilitary, militia positions. 

A militia was formed in Catron County, and the county commission 

supported a public call for setting up a militia, declaring in 1994 that "every 

head of household residing in Catron County is required to maintain a 

firearm of their choice, together with ammunition."38 The day after the 

Oklahoma City bombing, a county rancher active in the movement threatened 

Forest Service workers who had reduced his grazing privileges due to 

overgrazing; "If you come out and try to move my cattle off, there will be 

one-hundred people out there with guns to meet you."39 

Although observers agree that only a tiny fringe element of either the 

militias or the county movement is actively engaged in violence, the level of 

violence directed against federal employees has been extraordinary. 

Incidents involving possible militia ties have been most visible, led by the 

Oklahoma bombing in April 1995, which resulted in the death of 169 federal 

employees, visitors, and children. It is notable that the bombing's target 

was not significant in racial, economic, or media terms, but was, instead, 

the Alfred P. Murrah Federal Building. One researcher credibly 

labeled it "the worst terrorist attack" in American history.40 Accused bomber, 

Timothy McVeigh's trial had not begun as of this writing, and scrutiny of 

"Bielski, "Armed and Dangerous," 33. 

34Ibid. 

35Stern, A Force Upon the Plain, pp. 122-123. 

36Bielski, "Armed and Dangerous," 33. 

"7Zakin, "New Mexico: Conflict in Catron County," 22. 

S8Bielski, "Armed and Dangerous," 33. 

3"Ibid. 

40Stern, A Force Upon the Plain, p. 9.


169 

his connection to the militia movement has been somewhat sketchy, if still 

detailed enough to establish his sympathy with the militias and, especially, 

the Waco victims.41 

Also in April, federal agents foiled a plot by a supporter of Randy Weaver 

who they claim intended to explode a fertilizer bomb (similar to the one 

used in Oklahoma) at the federal courthouse in Spokane, Washington.42 

In September 1995, a defendant with alleged militia ties was indicted for 

planning to bomb the IRS building in Austin, Texas.43 Other incidents or 

threats, still unsolved, show indications of militia linkage, including a fatal 

Arizona train derailment. Throughout 1995, several high-profile confrontations 

between law enforcement officials and rightist activists took place, 

including several incidents in Montana and a June shoot-out with Ohio 

police.44 Public officials in Montana and elsewhere received (increasingly 

credible) threats of violence.45 

Although the county movement is not generally considered as violent as 

the militias, a number of violent acts are regularly mentioned as having 

possible county movement connections. The BLM's state headquarters in 

Reno, Nevada, was bombed, resulting in $100,000 in damage but no injuries, 

because the building was closed for the night. A pipe bomb exploded near 

the window of the district director of the U.S. Forest Service in Carson City, 

Nevada, and four months later, the same official's van was bombed in the 

driveway of his home.46 Public officials have been threatened with violence in 

Catron County and other locations associated with the county movement.47 

After the Oklahoma bombing, House Speaker Newt Gingrich complained 

that the broad Republican revolution cannot be blamed for the violence of 

extremists who take its complaints too seriously. Garry Wills issued a 

reasoned reply; Gingrich "is right when he says that no enunciator of a 

position can be blamed for every degree of zaniness conceived beyond that 

position's actual borders. Yet, much of the appeal of the new extremists 

comes from the fact that they take a generalized discontent and spell out, 

in hard terms, what the consequences of such vague feelings could be."48 

As Wills had earlier noted, former President Ronald Reagan built a career 

and a new conservative movement, based in no small part on the normalization 

of a contradiction. Reagan governed, but he opposed government.49 

Having thus solved a tension that had limited other rightist antigovernment 

movements (whose opposition to government was too consistent to 

4'Stern, A Force Upon the Plain, pp. 187-194. 

42"Extremists Pose Increasing Threat of Violence to Police, Other Public Officials" Klanwatch 

Intelligence Report 80 (October 1995): 1, 3. 

43"Extremists Pose Increasing Threat," Klanwatch Intelligence Report 78 (June 1995): 3. 

44Ibid; Stern, A Force Upon the Plain, pp. 89-92, 252. 

45Stern, A Force Upon the Plain, pp. 91-95. 

46Reinhardt, "Nevada: a Phony Showdown with Real Guns," 11. 

47SeeJunas, "Rise of Citizen Militias." 

4sGarry Wills, "The New Revolutionaries," The New York Review of Books 20 (August 1995): 50-55. 

4"Garry Wills, Reagan's America: Innocents At Home (Garden City, NY: Doubleday, 1987).

170 


allow partisan application within the electoral process, for example), 

Reagan energized antigovernment conservatism. As the Reagan presidency 

continued, however, the Democratic Congress limited the antigovernment 

agenda's success. 

It seems likely that the emergence of populist, conservative, and angry 

mass communications channels-primarily talk radio, but also computer 

bulletin boards, shortwave, and other outlets-allowed the antigovernment 

fervor to build and solidify. As a result, the antigovernment position has 

unfiltered and virtually continual access to a mass audience. Frequently, 

the local talk radio voices have been the most remarkably radical, as in the 

case of Bob Grant of New York's WABC.50 But angry rightists such as 

G. Gordon Liddy have also achieved national exposure, through syndication 

to local talk-radio outlets, many of which benefited from and thus promoted 

the success of Rush Limbaugh, whose partisan Republican message is often 

posed in such emphatic terms as to seem allied with the radical right. 

Conspiracy theories, populist suspicion of elites, and aggressive appeals 

to liberty are not new in United States politics. Nonetheless, as Garry Wills 

explains, "there is something new about the groups coming to light after 

Oklahoma City. Much of those groups, however, differ among themselves- 

some espousing violence, some not; some religious, some secular; some 

millennia, some pragmatic-they all agree in their intense fear of the 

government."51 Although causality is notoriously difficult to assess with con- 

fidence, it seems fair to suggest that the antigovernment themes pushed by 

the radical right have reenergized the discussion of topics long thought 

settled, at least in their broad generalities, by United Sates politics. The 

elementary legitimacy of federal authority is now in doubt for surprisingly 

large segments of society. 

In several ways, the county movement differs dramatically from the 

militias or more radical patriot groups. The county rule movement, in par- 

ticular, has taken great pains to disassociate itself from the radical rightist 

elements that may sometimes share its goals. Time found Jim Carver, the 

county commissioner who staged the Nye County confrontation, more likely 

to cite Rosa Parks than Jefferson Davis as inspiration; "Carver takes offense 

when critics try to link him to extremists, particularly white supremacists.... 

He disavows fringe rhetoric but feels that as an elected official, he cannot 

discriminate against any audience just because its views are more extreme 

than his.'"52 Still, critics insist that Carver has lent his celebrity to groups 

with an agenda clearly tinged by racism and vitriolic antigovernment rhetoric. 

50Extra! the newsletter of advocacy group Fairness and Accuracy in Reporting, has frequently reported 

on Grant and other talk radio issues. For FAIR's coverage of post-Oklahoma reporting, seeJim Naureckas, 

"The Oklahoma City Bombing: TheJihad That Wasn't," Extra! (July/August 1995): 6-10 and "Talk Radio 

on Oklahoma City," Extra! (July/August 1995): 17-18. See netscape at: http://www.igc.apc.org/fair/ 

(27January 1996). 

5Wills, "The New Revolutionaries," 50. 

52Larson, "Unrest in the West," 63.


Observers agree that not all Wise Use or county movement supporters 

are militia members.53 Wise Use leader, Ron Arnold, says he left the 

National Federal Lands Conference, which published a pro-militia statement, 

before that publication, which he called "repugnant....We have no 

use for paramilitary organizations. We are a political organization." Arnold 

says the NFLC is the only Wise Use group that has "crossed over" into militia 

support.54 Shortly after the Oklahoma bombing, Arnold's denunciation of 

militia members turned vitriolic, as when he characterized militia members as 

"mostly illiterates and bummed-out vets suffering from some kind of shock 

syndrome."55 

Another Wise Use leader, Chuck Cushman, acknowledges that Wise Use 

activists are often armed and are angry with the federal government, but 

says similarities with the militias stop there; "Our people are afraid because 

they're fearful of losing their jobs, their prosperity and their livelihoods, 

not because they think the Russians are coming over the hill in tanks," a 

reference to the conspiratorial bent of the militias.56 It seems likely that, as 

the militias, Freemen, and other extremist groups become increasingly 

demonized, leaders like Cushman, Arnold, and Carver will distance themselves 

from the extremists. The consequence of such a move for the 

efficacy and popularity of the Wise Use and county movements cannot be 

predicted. 

CONSTITUTIONAL ARGUMENTS 

171 

The elementary tenet shared among county movement advocates (and with 

the earlier Sagebrush Rebellion) is the challenge to federal control of 

public lands. Many county movement activists invoke the Tenth Amend- 

ment to the U.S. Constitution. For example, the Center for the New West, 

a Wise Use group, has called for a new Nullification Amendment, renewing 

John C. Calhoun's 1830s effort to allow states to override actions taken by 

the federal government. Such a new Nullification Amendment, in the 

Center's version, would allow a supermajority of states to overturn federal 

statutes or regulations, and would allow the states to amend the U.S. Con- 

stitution unless the change was rejected by the Congress, thus expanding 

state power without running the risks associated with a Constitutional Con- 

vention.57 Another Tenth Amendment resolution, written by state Senator 

Charlie Duke of Colorado, has been passed by eleven states.58 (Although I 

"This sentiment is expressed by both the Montana Human Rights Network and the Clearing House 

on Environmental Advocacy and Research (Washington, D.C.), Bielski, "Armed and Dangerous," 33. 

54Bielski, "Armed and Dangerous," 33. 

5Valerie Richardson, "Anti-government Fervor Sweeps West," Washington Times, 29 April 1995, p. Al. 

56Richardson, "Anti-govern men t Fervor Sweeps West," Al. 

"7Philip M. Burgess and Mike Kelly, "New Constitutional Life for States' Rights," Washington Times, 

22 August 1995, p. A14. 

8Valerie Richardson, "Patriots Challenge Federal Authority," Washington Times, 2 April 1995, p. Al. 

Details of Duke's proposal can be found in Walter Williams, "Swelling Ranks of Rebels," Washington Times, 

4 February 1995, p. A13.

172 


will not address them in this essay, other demands associated with the Wise 

Use and county rule movements include "takings" legislation and laws aimed 

at limiting the operations of federal law enforcement officers in local jurisdictions.59) 

Of course, many states' (and counties') rights advocates make 

reference to the tenth amendment but agree with only parts of the Wise 

Use or county movement agenda. For example, although the National 

Association of Counties (NACo) has taken several positions close to the 

concerns of the Wise Use movement in recent years, it has not explicitly 

chosen either to support or to repudiate the county movement.60 

Although the militias sometimes borrow these Tenth Amendment claims 

and the aggressive policy rhetoric of groups like the National Rifle Association, 

they typically move quickly from mere criticisms of government policies, 

toward a systematic, ideological attack on the very basis of federal sovereignty. 

More radical adherents of Patriots' movements, including the Freemen 

who gained national visibility in a standoff with the FBI in Montana 

early in 1996, challenge the legitimacy of the federal income tax and the 

underpinnings of federal control of the currency supply. Other Patriots 

have focused on jury nullification, the doctrine that claims juries should be 

instructed that they can rule on the justness of laws, not only the merits of 

the case they have heard tried.61 

The specific basis of many county movement claims involves a challenge 

to original agreements that maintained federal ownership of large blocks 

of land when states were admitted to the union. In Nye County's defense 

against the federal lawsuit filed in March 1995, the county depended on its 

reading of the "equal footing" doctrine, under which a new state would 

join the Union with sovereignty at a level matching the original thirteen 

states.62 The county argues that the terms of Nevada's admission violated 

equal footing because such a huge majority of Nevada's land was retained 

in federal ownership, consigning the state to second-class status. 

Independent legal experts dismiss the county's logic, although some 

believe the Nye County case could end up in the U.S. Supreme Court. The 

government's case disputed the equal-footing argument, which applied only 

to political rights; each new state would be treated like the existing ones in 

59A "takings" provision was passed by the U.S. House in 1995. For a comprehensive study of takings 

legislation and court cases, see Kenneth Jost, "Property rights: do government regulations infringe on 

landowners' rights?" Congressional Quarterly Researcher 5 (une 1995): 515-531. Several state legislatures 

have considered legislation blocking activities of federal law enforcement officials. One legal challenge, 

Barton v. Babbitt, 1994 was withdrawn by officials of Elko County, Nevada, after the federal government 

filed its reply. See Carrier, "Rebels Ride Again," A16. 

'6NACo's resolutions have urged the Congress to open the Arctic National Wildlife Refuge to mineral 

development (adopted 11 July 1992), supported emergency salvage timber sales (adopted 11 July 1992), 

opposed grazing fee increases (adopted 4 August 1994), and criticized the Endangered Species Act 

(adopted 25 July 1995). NACo resolutions are available online at http://politicsusa.com/naco/ 

(22 April 1996). 

6"Richardson, "Patriots Challenge Federal Authority," Al. 

6"The "equal footing doctrine" argument first arose in the original "sagebrush" suit, "Nevada v. United 

States, 1981-1983." Tom Kenworthy, "U.S. Enters Range War, Suing Nevada County," The Washington Post, 

9 March 1995, p. A3.


173 

allocating representation and establishing jurisdiction. In addition, the 

government noted, Nevada explicitly ceded rights to the federal lands when 

it entered the union in 1864. Peter Coppelman, Justice's Deputy Assistant 

Attorney General for environment and natural resources, derides the legal 

merits, but understands the political efficacy of the claims. "Legally, the 

county-supremacy arguments are completely bogus, but politically, they're 

very potent."63 

Underlying Nye County's argument is an ideological leap. While the 

U.S. Constitution is revered as an almost sacred document, the centuries of 

interpretation, negotiation, and elaboration built on that Constitution are 

assumed to be fraudulent and thus irrelevant. In functional terms, this 

position allows the rebels to cite a founding document of almost endless 

credibility, the U.S. Constitution, while simultaneously denying the validity 

of the institutional framework whose establishment was the only purpose 

of the document. It is a savvy move, at least in the sense that a document 

exists that provides a conceptual framework and legal terminology, while 

the movement can simultaneously reject government, consistent with the 

antigovernment rhetoric espoused by both radicals and more mainstream 

political forces. 

Whatever the political value of this approach, however, as a legal maneuver, 

it seems to have failed. In March 1996, Judge Lloyd D. George of the 

Federal District Court in Las Vegas ruled broadly against Nye County, 

rebuking nearly all of the major issues of the suit, in what the Newu York Times 

called "a major blow to dozens of counties that have passed ordinances 

asserting [control] over the public lands."64 

As in the county rule movement, there is very little except an 

idiosyncratic reading of the U.S. Constitution on which to base the militia 

claims. The antigun control reading of the Second Amendment has gained 

very limited support among constitutional scholars.65 If anything, the 

constitutional case against the current radical militia reading of the amendment 

is even weaker. The authors of the U.S. Constitution clearly had in 

mind a military purpose, as the presence of the term "well-regulated" 

confirms. The king's military, so recently vanquished when the U.S. Constitution 

was written, referred to its soldiers as "regulars." Regulated, thus 

directly referred to training, discipline, and command-without which no 

militia could be legitimate. The military focus of the amendment's militia 

reference is further demonstrated in the militia clause of the Constitution, 

which establishes a congressional power "to provide for organizing, arming, 

and disciplining the militia," and explicitly establishes the federal 

government's role in commanding that militia.66 

63Larson, "Unrest in the West," 66. Another report suggests that fewer than 20 percent of county 

movement lawsuits have been successful. See Carrier, "Rebels Ride Again," Al, A16. 

6Timothy Egan, "Court Puts Down Rebellion Over Control of Federal land," The New York Times, 

16 March 1996, pp. 1, 9. 

6Article I, Section 8, Cl. 16. See Wills, "To Keep and Bear Arms," 68 ff.

174 


As the adjacent Third Amendment (on the quartering of troops) 

confirms, the issue at stake in both amendments is largely a funding issue, 

as well as the command and control issue just mentioned. Once the U.S. 

Constitution was passed, the militias soon began to decline. Militias were 

criticized for promoting gambling and drunkenness, and because the militias 

(a forerunner of compulsory military service) offered too many opportunities 

for the wealthy to avoid service. In any case, many states soon began to 

exempt age groups, limiting the compulsory character of militia service. In 

the 1830s and 1840s, massive popular opposition ended compulsory militia 

service.67 

The contemporary militia movement makes frequent use of the phrase 

"the unorganized militia," which emerged after the demise of the statesponsored 

militias and is used in federal legislation passed in the early twentieth 

century, relating to the National Guard. Consider how one militia 

supporter uses this concept 

While most of us never think about it...every American male 

spends 28 years as a member of the militia, whether he wants to 

belong or not. United States Code, Title 10, Section 311, 

describes the militia of the United States as consisting of all ablebodied 

males at least 17 years of age and under 45 years of age. 

If we are not members of the National Guard, then we are, by 

law, members of the unorganized militia who can be called to 

service at any time by the appropriate legal authority. Any two 

or more American men can therefore claim to be an association 

of members of the unorganized militia, just as they might be an 

association of voters, taxpayers, parents, or citizens.68 

This selective use of a federal statute serves a useful rhetorical purpose, 

claiming some legitimacy for the militias. But rhetoric is about all that is 

there; "unorganized militia" is roughly a term for those citizens eligible for 

National Guard service, not an invitation for groups to engage in activity 

not regulated by legitimate command authority. 

The issue, at base, is whether the U.S. Constitution and federal statutes 

can be interpreted as legitimizing the use of force against the government. 

Obviously, concerns about liberty informed the framers of the U.S. Constitution, 

but the Constitution is also clear on the legitimate use of force. 

Garry Wills resorted to uncharacteristically emphatic language to make this 

point: "Only fantasts can think the self-styled militias of our day are acting 

under the mandate of, or even in accord with, the Second Amendment. 

Only madmen, one would think, can suppose that militias have a 

6"Mark Patcavage, "New Militia Frequently Asked Questions," 3.42-3.50 (6 November 1995). Only 

available online at http://www.sff.net/people/pitman/militia.html (20 December 1996). This is a useful 

and thorough treatment of the history of militias in the United States and the legal issues surrounding 

contemporary militia organizing. 

6Mack Tanner, "Extreme Prejudice," Reason Magazine 27 (July 1995): 43-50.


constitutional right to levy war against the United States, which is treason 

by constitutional definition."69 

CONCLUSION 

175 

It is intriguing that such odd interpretations of American federalism as 

those offered by the militias and county rule movements have caught the 

fancy of so many Americans. At the very least, it should give pause to all 

who teach federalism, the U.S. Constitution, and American government. 

In one sense, a familiar political pattern is in play; radicals move the political 

discourse in their direction, even if they also suffer condemnation for their 

radicalism. Evidence of this dynamic is found in the judgment of at least 

some mainstream observers that the conservative push for state and local 

authority has had the effect of making Tenth Amendment arguments a 

legitimate concern of governors and state legislatures. An article in the 

ABA Journal concluded that if the movement rallying around tenth amendment 

claims succeeds, "it would represent the greatest shift in governmental 

relationships since the New Deal."70 

But beyond this familiar dynamic, there are other possibilities inherent 

in the popularity sometimes achieved by openly radical movements. The 

pattern of both militias and county rule movements is the same. Constitutional 

language is used, in each chase, to legitimize activity that is otherwise 

far beyond the well established terrain built by two centuries of interpretation, 

elaboration, and implementation of that Constitution. It is as if the 

originating document is somehow sacred, while the history it made possible 

is profane. These moral terms are used advisedly, in reference to the 

legitimacy crisis intended by radical right organizers. A generation of 

political theorists has diagnosed social apathy and doubt as the premier 

consequence of a widespread "legitimacy crisis." Yet, in this iteration at 

least, the actual legitimacy crisis is better characterized by fearful conspiracy 

theory and eccentric constitutional interpretation. It should at least give 

pause that the available forms of elite leadership, media interpretation, 

and other methods of policing the boundaries of governmental and social 

legitimacy seem so ill equipped to deal with this kind of criticism. 

As significant as these movements may become to the future of federalism, 

their implications for our national politics may be even more important. 

The county movement and militias practice, at their most radical 

moments, an odd mixture of antigovernment hysteria and an unusual application 

of civic moralism and historical precedent, in an often paranoid, 

conspiratorial framework. American politics, which for so long dismissed 

outbreaks of populist radicalism with ease, now may now be forced to deal 

with a more durable and vituperative variation of such activity. 

69Wills, "To Keep and Bear Arms," 68. 

7?Richard C. Reuben, "The New Federalism," American Bar Association Journal 81 (April 1995): 76-81. 

For additional discussions of Tenth Amendment claims, see Jerome L. Wilson, "States need a simple 

guarantee of rights," The National Law Journal 17 (February 1995): A21, and W. John Moore, "Pleading 

the 10th," National Law Journal 27 (July 1995): 1940-1944.

The County Supremacy and Militia Movements ... - MavDISK

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