Paramilitary Property

Abstract

Paramilitarism is on the rise in America. In recent years, paramilitaries have mounted violent responses to movements for racial justice, climate emergencies, public health protocols, and migrant border crossings. Militias, white power organizations, and other paramilitary groups often claim their violence is justified as a legitimate defense of property, citing the need to protect rights to land and water, as well as to businesses, ranches, and guns.

This Article demonstrates how property is used as a form of authorization and justification of American paramilitarism — and how paramilitarism, in turn, has shaped property as legal regime and cultural ideal. This complicates the common understanding of militias as outlaws, engaged in violent projects that are both illegal and contrary to American ideals. In fact, paramilitaries have long grounded their ideology and action in both law and notions of property that are central to the American creed. Paramilitaries claim legitimacy and authority via the defense of property as an object of ownership and as a constitutional right. At the same time, they shape property rules and practices by generating new interpretations of property which are then mainstreamed. The intimacy between paramilitarism and property has gone largely untheorized. Yet it is critical to explaining both the development and expansion of paramilitarism and the evolution of property doctrines and practices in America.

The Article first examines property as a fundamental concept for U.S. paramilitarism and paramilitary ideology. It focuses on three illustrative case studies: the armed occupation of the Malheur National Wildlife Refuge in Oregon; armed counterprotests of Black Lives Matter demonstrations in Wisconsin; and militia patrols of the U.S.-Mexico border. Together, these cases illustrate how property has served as an ideological touchstone and source of authority and legitimacy for paramilitarism. The conceptual underpinnings of this relationship lie in paramilitary modes of constitutional interpretation. These modes laid the groundwork for the mainstreaming of paramilitary conceptualizations of property into broader American culture, shaping contemporary debates around public lands, racial justice, and immigration.

The Article then examines how paramilitarism has shaped property. Paramilitarism is an unacknowledged root of property doctrines as well as American cultural practices related to the acquisition and protection of property rights. It has influenced doctrines and practices concerning the acquisition of property, particularly during the settlement of the American West. It has also shaped rules and cultural practices related to the protection of property, including self-deputization authorized by Stand Your Ground laws, racial exclusion and segregation, and protection of natural resources in moments of environmental crisis.

Recognizing the intimacies between paramilitarism and property yields crucial lessons for the ways we understand and theorize property. By drawing on property’s dual role as a form of both private ownership and public power, paramilitaries have shaped the ways property is understood and enacted both as a form of ownership over things and as a claim to power over others. The history of state delegation to private actors of control over both territory and people, as well as enforcement of property rules, in effect incorporated paramilitarism into the basic functions of the state via property. This illustrates the indeterminacy of property, as it opens up the possibility of both democratic order and paramilitary violence simultaneously.