First, of course, imagine a world with no government what-so-ever. One could, I suppose, talk of land ownership in such a world. Any "rights" in such a world would be essentially squatter's rights -- the land is mine because I am here, on it, and I say it is mine. Of course, one would necessarily need to "protect" that land from others who might also want to squat on it, a likely scenario insofar as one would tend to squat on "desirable" land. This need to "protect" takes us quickly to the need for guns and the "right" to own them. Without guns, the squatter would, of course, be vulnerable to the "land grab" of those with guns. With guns, they would need to be eternally vigilant. While they may be secure in their possession within the small coterie of family and friends, security gives way to suspicion the further out one extends that circle. Hence the eternal fear of strangers. When Hobbes talks about a state of nature and a war of all against all, this, essentially, is what he is describing.
We do not, however, live in a state of nature, nor is there a "frontier" over the hill where land is unpossessed, and one can, if one chooses, take ownership through squatter's rights. I use the word "frontier" advisedly. It would appear, historically, that there was a time when one could, like Huck Finn, "light out for the territories" in search of freedom, adventure, new opportunities, and land to which one could lay claim. The land never really was "unpossessed," if one takes into consideration the native Americans who occupied the land, but they held it, through squatter's rights, in a sort of tribal trust. Prior to the arrival of the europeans, they warred among themselves. After, they warred against the the US Army for possession of the land, who ultimately took it by force. It wasn't a fair fight, but in a state of nature, fairness is irrelevant. Strength IS relevant, and the US Army ultimately was stronger and prevailed. The US Army and its employer, the US government, took possession of the land through the assertion of squatter's rights. They have owned it since -- but I will come back to that.
A sort of frontier mentality, nevertheless, persists in the west. When one lives in the west, or even drives through, it's not difficult to imagine why the frontier mentality persists. It amazes me, even today, at how much land is simply "open," but it is a mentality sustained by a mythology and any number of false assumptions. We are familiar with the mythology, but if not, watch the Revenant. The film has most of the elements, the most pertinent of which is the greater "good" which resides in those who live closer to a state of nature, who are motivated by a sense of "honor," while the greater "evil" resides in those who live within "civilization," who are motivated by greed and proceed with rapine and rape. Straddling, but outside of both is the white man who has married an Indian woman and who simply wants to be left in "peace" to pursue the life he has chosen. The frontier mentality might be summed up as a "leave-me-the-f**k-alone." There are thousands of variations on a theme, but the fundamental desire is for the world to "leave-me-the-f**k-alone." When the world frustrates that desire, and it always will, one must "restore" peace, and on the frontier, there is only one way to seek revenge and restore peace, with a "peace maker."
The first false assumption is that of "personal ownership of property." Aside from squatter's rights, there is no such thing as "personal" ownership of property, particularly land. I have to say this point is a bit difficult to explain, but it comes down to this: the rules are set within the legal system of the government for what does (and what does not) count as "ownership." Likewise, the rules are set within the legal system of the government for what does (and what does not) count as "fair use" of land. I say "rules" rather than "laws" because it all ultimately comes down to a game of sorts -- an important game, one with consequences within our lives, but ultimately a game one is expected to play. Perhaps the easiest way to explain is with a personal example -- my own home. There isn't a square inch of "untitled" land. Someone, somewhere, holds title to the property. In my personal case, a title search verified it was another citizen. In order to take ownership of the property, he must "release" the title to me, a legal act defined under the rules of the game, and he agreed to do so in exchange for a sum of money. We initially paid cash for the property, so the title was transferred to me and it became "mine." Ownership in this case and in all cases is a legal state of affairs guaranteed, so to speak, by the government under the "rules of the game."
Were we to go on vacation and come back to find squatters in our living room, they have no right, again defined under the law, to say "finder's keepers, looser's weepers" and take pot shots at us to protect what they now consider their living room. At this juncture, I could, of course, reply in kind. I could fetch the rifle under the back seat of my pick up (if I had one), engage in a fire fight, and "forcibly" remove the squatters. In many locations, particularly here in the west, such an act is permitted and might even be applauded by my neighbors, but it would still come under the scrutiny of the "rules of the game." The police would eventually show up during or after the shoot out, and I would still need to prove that I had "legal" title to the property. Or one could call the police in the first place. They are charged with enforcing the rules set out within the legal system of the government. To do so, they would come, remove the squatters, and restore the existing "legal" state of affairs. Regardless, I do not need to "protect" my rights to the property. The government is charged to do so. If one believes the government is ineffectual in doing so, then what one needs is better government.
Beyond that, when I say that a piece of property is "mine," I can do with it pretty much whatever I want -- within limits. I cannot use it to cook meth, ala Breaking Bad, because that is otherwise illegal, and would allow the government to invade and in many cases seize the property. I cannot use it to house underage sex slaves, regardless of the pretext for doing so, because such acts are otherwise illegal, and here again would allow the government to invade and in many cases seize the property. In both cases, a warrant would be required, stemming from the constitutional protection from "unreasonable search and seizure," but here again the rules for granting (or denying) a warrant are set within the "legal system" of the government.
I have to say, I do not want my neighbors cooking meth, because it's dangerous and poses risks to my property. But, for the sake of argument, let us say I personally feel the drug laws against marijuana are wrong, and partly for my personal use, partly as a form of protest, I start to grow weed in my backyard. In the state of Idaho, such an act would be illegal and, regardless how I might feel, would allow the government to invade and seize my property. If one believes the government is wrong in doing so, then what one needs is a better government -- better defined as one that decriminalizes marijuana production and use, which is relatively benign as drugs go, but leaves in place the criminal sanctions against meth and meth factories, which have a tendency to go boom and could very well set fire to my house as well as theirs. All would be good, for me, if we had "better" laws.
I have to say again, I do not want my neighbors housing underage sex slaves, because children should be protected, even from their parents and pastors. We are thrown into a quandary whenever religion is used to justify what might otherwise be seen as "aberrant" practices, but some practices are simply barbaric, damaging, and shouldn't be allowed, even if one's god condones or demands such acts. The forcible circumcision of women might be one such example. The marriage of children under the legal age of consent might be another. The history of the Branch Dividians at Waco has become as much a matter of myth as reality, and it is truly unfortunate that the police, the ATF, turned them into martyrs, but the "siege" was started as a result of two things. First, in February of 93, the Waco Tribune-Herald published a series of articles alleging that Koresh was committing statutory rape by taking multiple underage brides. Second, there were allegations surrounding the stockpiling of illegal weapons with sufficient credibility to issue a federal warrant. I won't dispute that the matter was handled with incredible ineptitude on the part of the ATF. I won't dispute either that David Koresh acted with stubborn and reckless disregard of his people and their safety. Having said that, however, if one believes that a fringe religious practice justifies polygamy with underage brides, if one believes that no weapons should be illegal, including militarized automatic weapons and grenades, then what one needs again is a better government -- better in this case being defined as one that sanctions such behaviors and ownership.
When I say, then, that a piece of property is "mine" and I can do with it pretty much what I want -- within limits -- the "limits" will always be questioned, but they are there because our elected officials, top to bottom, have put them there. I have no interest in housing weapons prohibited by federal law. I would, however, like to raise "chickens" in my back yard. There's the matter of eggs, but I am less interested ultimately in laying hens, more interested in certain varieties of roosters. The feathers of certain breeds are useful for fly-tying, are rare and are expensive. Having said that, I am prohibited by local ordinance from keeping roosters, who crow and disturb the peace, within the city. The limits are placed "top to bottom," from the halls of congress to the city hall. Beyond those limits, however, I can do pretty much what I actually want to do on my property free from government scrutiny or concern, though I'm pretty sure the neighbors are keeping a watchful eye on us. I really have no interest in growing marijuana either, but we do have a houseplant that bears a vague resemblance to a marijuana plant and we set it out on the porch during the summer. Inevitably, the police will come, park across the street, and scrutinize our porch for several minutes looking for the reported marijuana plant. Because the plant only bears a vague resemblance to an actual marijuana plant, it probably takes a few minutes for the "oh, for pete's sake" revelation to sink in and they drive off.
The real issue, the one that started this post, however, is the question of who actually owns "federal" land. There is, of course, an argument that it belongs to the "people" and, in a very abstract sense, it does. This does not mean, however, that Mr. Strop or Mr. Bundy, as people, are entitled to use the land for their own purposes, particularly commercial purposes. Like all things governmental, the "use" of the federal lands are set out in the law, or the rules of the game, and the government is charged to enforce the law. In the case of the national parks, for example, "the most important statutory directive for the National Park Service is provided by interrelated provisions of the NPS Organic Act of 1916 and the NPS General Authorities Act of 1970, including amendments to the latter law enacted in 1978," or so their Management Policies suggest. According to the law, "the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." It goes on to quote from the General Authorities Act of 1970, which reads in part:
Congress declares that the national park system, which
began with establishment of Yellowstone National
Park in 1872, has since grown to include superlative
natural, historic, and recreation areas in every major
region of the United States, its territories and island
possessions; that these areas, though distinct in
character, are united through their inter-related
purposes and resources into one national park system
as cumulative expressions of a single national heritage;
that, individually and collectively, these areas derive
increased national dignity and recognition of their
superlative environmental quality through their
inclusion jointly with each other in one national park
system preserved and managed for the benefit and
inspiration of all the people of the United States; and
that it is the purpose of this Act to include all such areas
in the System and to clarify the authorities applicable
to the system. Congress further reaffirms, declares, and directs that the promotion and regulation of the
various areas of the National Park System, as defined
in section 1c of this title, shall be consistent with and founded in the purpose established by section 1 of this
title [the Organic Act provision quoted above], to the
common benefit of all the people of the United States.
The authorization of activities shall be construed
and the protection, management, and administration of these areas shall be conducted in light of the high
public value and integrity of the National Park System
and shall not be exercised in derogation of the values
and purposes for which these various areas have been
established, except as may have been or shall be directly
and specifically provided by Congress. (16 USC 1a-1)
So, yes, as the bolded statements imply, the land is there for all the people of the United States, but as such, it would seem to preclude the private use and the private benefit of any particular rancher.
One might argue, however, that the NPS is not fulfilling its obligations under the law, but this is an argument, not for the abolition of government, in whole or in part, but for a better government -- better in this case being defined as more effective enforcement of existing law and regulation. Also, one might argue for a particular use -- e.g. grazing commercial cattle -- but there are provisions within the law for the use of federal land for livestock. One must obtain a "permit," and in the absence of a "permit," one's "livestock trespassing on park lands may be impounded and disposed of pursuant to the provisions of 36 CFR 2.60, with the owner charged for expenses incurred." There is discretion involved in the issuing of permits, and one might argue that the park management is inconsistent or prejudicial in the issuing of permits, but here again this is an argument, not for the abolition of government, in whole or in part, but for "better government" -- better in this case being a government that is more consistent and transparent in "permitting." Finally, one might argue that "permitting" itself is unnecessary and governmental over-reach, -- that grazing cattle does not in any way endanger the scenery, the natural and historic objects, or the wildlife -- but here again, this is an argument, not for the abolition of government, but for a better government -- better in this case being defined as a change to the law and the set regulations that would indiscriminately allow for the grazing of commercial cattle on federal lands. So on and so forth. Unless one is willing to forego ALL law, every critique ultimately comes back as an argument, not for the abolition of government, but for a "better" government, but in all such cases, one should ask the question, "better" how and for whom? There really is no neutral ground.
At fundament, what Strop and Bundy argue, however, is that the "federal government" has no right what-so-ever to own property, and they behave as though the land in question were open frontier, free for the taking. By occupying the land, they are essentially asserting so called squatter's rights in the absence of government assurances, and in doing so, they must, as all squatter's must in the absence of legal title, defend their property against "invaders." This is either a deep stupidity, or a deep hypocrisy, or both. The deep stupidity comes in the defense of their newly acquired property under "squatter's rights." Do they really believe that they are a match for the "government?" They might be a match for the NPS, but their armed occupation would not stand up long against the US army. If one asserts the "right" to seize property by force of arms, then one must at least contemplate the possibility that it might be re-taken by force of arms, in which case the government can escalate much more quickly and much more effectively than the Bundy clan. The deep hypocrisy comes as an assertion that the "government" has no inherent right to re-take the property. There is some real sympathy that goes with the "little guy" standing up to the "big guy." We have some retrospective sympathy too for the Native Americans who initially occupied this land. They were no match for the US Army that asserted "squatter's rights" to the land and took it by force, though I see no particular movement to give it all back. In a world where one can seize property by force of arms, where "might makes right," it is deeply hypocritical to assert "government overreach" when they take it back by force. Bundy, ultimately, wanted what HE wanted, and was frustrated enough to wave guns around when he didn't get it, and was petty enough to play the victim when the very predictable response occurred.
Strop, and those like him, however, may get their wish. The federal government may well collapse under its own weight. There are signs that the federal government cannot sustain itself. The ideological divides within congress reflect regional divides, and there are signs that the country is "balkanizing" and coming apart. The movements for succession in Texas and elsewhere are a case in point, and one guesses that those calling for succession are, like the south of yore, willing to fight for it. Then too, the zombie apocalypse may well occur. Some genetically modified organism may well escape the lab, and the world may well descend into a war of all against all in the ensuing epidemic. At such time, the blind poets will sing around the campfire, praising the foresight of those who stockpiled provisions and the arms to defend them, commending them for their courage and cunning. In the meantime, however ...
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