Abstract

Excerpted From: Meghan L. Morris, Paramilitary Property, 60 Harvard Civil Rights-Civil Liberties Law Review 107 (Winter, 2025) (271 Footnotes) (Full Document)

In 2016, armed extremists occupied the Malheur National Wildlife Refuge in Oregon for over a month. Their central demand was a transition to private ownership of federally held public lands. In 2020, a teenager armed with a semiautomatic rifle stood guard over a car dealership in Kenosha, Wisconsin, claiming that he was there to protect property against Black Lives Matter protesters. He would later shoot and kill two protesters, claim self-defense, and be acquitted of all charges. In 2003, armed civilians in fatigues captured and assaulted two Salvadoran migrants on a Texas ranch near the border with Mexico. Invited by the ranch owner to guard his property against migrants, the armed civilians were part of a group called Ranch Rescue that claimed to defend American property rights.

These three events are all examples of paramilitary property. As I lay out in this Article, paramilitary property involves a two-way relationship between property and paramilitarism. Paramilitaries, on the one hand, claim the defense of property as an object of ownership and as a constitutional right, and ground their own authority in this defense. They simultaneously shape property rules and practices, shifting paramilitary interpretations of property into the mainstream.

The modern militia movement has a long history, with roots in earlier paramilitary, white power, and white supremacist groups, and its ranks have expanded and been energized in the context of recent political division, economic struggle, and cultural backlash. The terms “militia,” “paramilitary,” ““white power,” and “white supremacist” have their own distinct meanings, which have shifted over time. I use the broadest term, “paramilitary,” in this Article to describe the use of military-style combat, weapons, and tactics outside of the police and military. Paramilitarism exists on a spectrum of state authorization, ranging from private violence that is formally authorized by the state (such as in the context of Stand Your Ground laws) to private violence that is explicitly outlawed by the state (such as the organization of private militias). I draw on modes of paramilitarism that exist at different points along this spectrum in order to trace the broad historical contours of these types of organized violence and their relationship to property over time.

Scholars of paramilitarism frequently posit militias as outlaws engaged in violent projects that are both illegal and contrary to American ideals. Yet paramilitaries have long grounded themselves in both the law and the notions of life, liberty, and property that are embedded in the American dream.

This Article argues that paramilitarism in fact both relies upon and shapes property in America. It reveals how U.S. paramilitarism's historical and contemporary incarnations embrace and find legitimacy in notions of property as an American founding ideal. I move beyond the predominant view of modern militias as outlaws to show how property in fact serves to authorize and facilitate paramilitarism--and in turn, how paramilitarism shapes property both as a legal regime and a cultural ideal. This previously unexamined intimacy between paramilitarism and property has deep and abiding legacies, both for the development of paramilitarism and for the evolution of property doctrines and practices.

As scholars increasingly analyze the central role that race has played in the development of property law, I trace how this relationship between race and property has also been crafted via paramilitarism. Legal scholar K-Sue Park has theorized the histories of conquest and slavery as foundational to property law. These histories have been shaped by different historical paramilitary incarnations, from vigilante settler groups that established modes of expropriating land from Native Americans and Mexicans to the Ku Klux Klan and other paramilitary and white supremacist organizations that influenced the forms of property that formerly enslaved people could acquire. An analysis of paramilitarism centers the role of private violence in this history, which has been tied up with white supremacy in particular moments and places but is also distinct from it in ways that scholars of paramilitarism are careful to delineate.

The involvement of paramilitaries in this history did not render the outcomes an aberration. Rather, paramilitaries crafted ways of conceptualizing property and enacting it through legal doctrines and institutions that became mainstreamed in America. Opening up this history is critical to the country's efforts to trace and grapple with histories of oppression of Black Americans, Native Americans, and immigrants--histories that unfold into contemporary debates around public lands, immigration, and racial justice. It is key to understanding our contemporary political juncture, in which paramilitaries continue to claim legitimacy and conduct activities that threaten democracy and justice in the name of property. And it is foundational to understanding the development of forms of acquisition and protection of property in America. Put simply, we cannot understand American paramilitarism without recognizing property as foundational to the paramilitary project, and we cannot understand property in America without acknowledging its paramilitary roots.

The Article proceeds in three Parts. Part I examines property as a fundamental category within U.S. paramilitary ideology. I open this Part with a description of paramilitary origins and variations. I then present three short contemporary case studies. The first examines the armed occupation of the Malheur National Wildlife Refuge in Oregon. The second focuses on counterprotests to Black Lives Matter demonstrations in Wisconsin and the role that the notion of protection of property has played in paramilitaries' public opposition to demands for racial justice. The third examines militia activities in U.S.-Mexico border control and enforcement and the role that property and land rights play in legitimating nativist claims to territory. These cases illustrate the ways that property has served as a paramilitary ideological touchstone, a means of recruitment, a source of authority and legitimacy, and a mode of racialization, shaping contemporary debates around public lands, racial justice, and immigration. I then identify the conceptual underpinnings of this relationship in paramilitary modes of constitutional interpretation and discuss the ways they laid the groundwork for the mainstreaming of paramilitary conceptualizations of property into broader American culture.

Part II examines the ways that paramilitarism has, in turn, shaped property. I argue that paramilitarism is an unacknowledged root of property doctrines as well as American cultural practices related to the acquisition and protection of property rights. I first focus on paramilitarism's influence on doctrine and practices around the acquisition of property. I illustrate how a range of types of paramilitary groups shaped the development of property rules during the settlement of the West in the nineteenth century in ways that informed the distribution of property along racial lines as well as the division of public and private land ownership. I then discuss the influence of paramilitarism on rules and cultural practices related to the protection of property. I trace the roots of notions of “looting” related to protection of property to slave patrols, illustrating the ways that paramilitary history has shaped contemporary modes of self-deputization to protect property via unofficial means as well as formal rules such as Stand Your Ground laws. I also discuss the role of paramilitarism in shaping property as a mode of racial exclusion, from the rules developed around land ownership and access during Reconstruction to modes of enforcing residential segregation during Jim Crow. As militias become active participants in disputes over land and natural resources in the context of environmental crises, these forms of exclusion are often exacerbated. In these ways, paramilitaries shape property through both community ideals, and through racialized violence, exclusion, and paranoia, in ways that persist throughout American history.

Part III argues that these intimacies between paramilitarism and property hold important lessons for property theory. Property scholars have theorized property as a delegation of power by the state to private owners, such that property contains elements of both dominium over things and imperium over other people. The history of paramilitary property teaches us that this delegation of power can be a delegation by the state of the authority to exercise violence. It also illustrates the ways in which paramilitarism lives and takes shape in the gray zone between public and private. For this reason, property becomes a key legal concept for paramilitaries, who can draw on it as a source of authority and legitimacy that emanates directly from state legal regimes or that can be framed as a pre-political right.

Even as the delegation of power that occurs through property can facilitate paramilitarism, paramilitarism is not simply the destiny of property. Rather, it is the particular way this structure has been enacted in the United States over time that has facilitated the unfolding of a specific relationship between property and paramilitarism, shaping both property rules and practices and the cultural imagination of what property is and what it protects.

[. . .]

As paramilitary violence expands further into American political and social life, it is critical to understand how paramilitaries frame their sources of authority and legitimacy and the ways that their ideology moves into the mainstream. Property--as both an American founding ideal and an everyday legal and cultural manifestation of that ideal--both facilitates and is shaped by paramilitarism. Property serves as a central node of paramilitary legitimacy and influence in ways that are both historically grounded and hold contemporary relevance. These intimacies between paramilitary violence and property are rooted both in property's dual role as a form of both public and private power and in the ways that this role has unfolded through decentralized enactment and enforcement of property rules over the course of American history.

Associate Professor, Temple University Beasley School of Law.