Way back in 2016 Ammon Bundy and fellow “militia” members occupied the Malheur National Wildlife Refuge in Oregon as a protest of federal land use policies. Ammon Bundy is the son of Cliven Bundy, the rancher who was involved in another armed stand-off with the federal government. Cliven Bundy once owed the American taxpayers over $1 million for grazing his cattle on public land. While the right usually condemns what they see as freeloading, he became something of a hero for the right. While that itself is an interesting issue, my focus will be on discussing the ethics of protest through non-violent armed occupation.
Before getting to the main issue, I will anticipate some concerns about the discussion. First, I will not be addressing the merits of the 2016 Bundy protest. Bundy purported to be protesting against the tyranny of the federal government’s land-use policies. Some critics pointed out that Bundy benefitted from the federal government, something reminiscent of the infamous cry of “keep your government hands off my Medicare.” While the merit of the content of the protest is relevant to its moral status, my focus is on the general subject of occupation as a means of protest.
Second, I will not be addressing the criticism that if federal land were non-violently seized by people protesting Trump’s immigration policies, then the right’s response would be very different. While the subject of race and protest is important, it is not my focus here. I now turn to the matter of protesting via non-violent armed occupation.
The use of illegal occupation is an established means of protest in the United States and was used during the civil rights movement. But, of course, an appeal to tradition is a fallacy, the mere fact that something is well-established does not entail it is justified. As such, an argument is needed to morally justify occupation as a means of protest.
One argument for occupation as a means of protest is that protestors do not give up their rights simply because they are engaged in a protest. If they wish to engage in their protest where they would normally have the right to be, then it would seem to follow that they should be allowed to protest there.
One obvious reply to this argument is that people do not automatically have the right to engage in protest in all places they have a right to visit. For example, a public library is open to the public, but it does not follow that people thus have a right to occupy a public library and interfere with its operation. This is because the act of protest would violate the rights of others in a way that would seem to justify forbidding the protest.
People also protest in areas that are not normally open to the public or whose use by the public is restricted. This would include privately owned areas as well as public areas that have restrictions. In the case of the Bundy protest, public facilities are being occupied. However, Bundy and his fellows used the area in a way that would normally not be allowed. People cannot, in the normal course of things, just take up residence in public buildings. This can also be regarded as a conflict of rights, the right of protest versus the right of private ownership or public use.
These replies can be overcome by showing that the protest does more good than harm or by showing that the right to protest outweighs the rights of others to use the occupied area. After all, forbidding protests simply because they might be inconvenient or annoy people would be absurd. However, accepting protests regardless of the imposition on others would also be absurd. Being a protestor does not grant a person special rights to violate the rights of others, so a protestor who engages in such behavior would be acting wrongly and the protest would thus be morally wrong. After all, if rights are accepted to justify a protest, then this provides a foundation for accepting the rights of those who would be imposed upon by it. If the protester who is protesting tyranny becomes a tyrant to others, then the protest loses its moral foundation.
This provides the theoretical framework for assessing whether the Bundy protest was morally acceptable or not: it is a matter of weighing the merit of the protest against the harm done to the rights of other citizens (especially those in the surrounding community). The same applies to other protests by occupation.
The above assumes a non-violent occupation like civil disobedience of the sort discussed by Thoreau. That is, non-violently breaking the rules (or law) in an act of disobedience intended to bring about change. This approach was also adopted by Gandhi and Dr. King. Bundy added a new factor while the occupation began as peaceful, the “militia” on the site was well armed. They claimed the weapons were for self-defense, which indicates that the “militia” was willing to escalate from non-violent (but armed) to violent occupation in response to the alleged tyranny of the federal government. This leads to the matter of the ethics of armed resistance as a means of protest.
Modern political philosophy does provide justification of such resistance. John Locke, for example, emphasized the moral responsibilities of the state in regard to the good of the people. That is, he does not simply advocate obedience to whatever the laws happen to be but requires that the laws and the leaders prove worthy of obedience. Laws or leaders that are tyrannical are not to be obeyed but are to be defied and justly so. He provides the following definition of “tyranny”: “Tyranny is the exercise of power beyond right, which nobody can have a right to. And this is making use of the power anyone has in his hands, not for the good of those who are under it, but for his own private separate advantage.” When the state is acting in a tyrannical manner, it can be justly resisted, at least on Locke’s view. As such, Bundy does have a clear theoretical justification for armed resistance. However, for this justification to be actual, it would need to be shown that federal land use policies are tyrannical to a degree that warrants the use of violence as a means of resistance.
Consistency does, of course, require that the framework be applied to all relevantly similar cases of protests, be they non-violent occupations or armed resistance. Be they about land use or immigration policy.