Bundy Attorney Wants Jury Instructed On Militia And Right To Resist Tyranny

Las Vegas – Just before the court deadline at 11:03 PM MST on September 28, 2017 Ammon Bundy defense attorney Morgan Philpot filed a formal request for jury instructions in the upcoming criminal trial scheduled to begin Tuesday, October 10 of Bundy.  The filing included a request and supporting legal authority that the jury should be instructed that:

“Defendants’ rights to possess and carry firearms are not on trial. Under the Second Amendment to the United States Constitution, a person has the right “to keep and bear arms,” that is to own, to possess, and to carry firearms, including for the purposes of participating in a citizen militia. Thus, [a] defendant’s possession and use of a firearm and participation in, or association with, militia activity for the purpose of resisting tyranny and usurpations of power by the federal government is protected by the Second Amendment unless that defendant intended his actions to constitute a deliberate act of force, threat or intimidation against an officer of the United States in furtherance of the alleged conspiracy charged in Count two.

In his filing, Philpot cited as support, several prior cases from the Ninth Circuit Court of Appeal and the United States Supreme Court. Back in 2008, in a landmark decision – District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United States held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home.  In reaching that conclusion, the Supreme Court referenced the long history of militia and militia rights of free citizens.  Philpot cited the decision and its comparison of American’s rights to Militia participation as analogous to more commonly evoked First Amendment Rights.

“The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong headed views. The Second Amendment is no different.”

Philpot argued that “Mr. Bundy’s instruction correctly states the law as set forth in Heller, where the Supreme Court recognized the right to keep and bear arms in one’s home, as derived from a broader and uncontroversial right to bear arms in association with a citizens’ militia acting in response to federal overreach.”

Philpot also referenced the very direct instruction in Heller, citing Justice Story’s observation that, “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Heller, 554 U.S. at 667-68. Philpot also wrote, “the Heller majority endorsed the militia’s ability to ensure that the people are “better able to resist tyranny,” including against “both public and private violence.” Id. at 594, 598.

Attorney Bret Whipple, defense attorney for Cliven Bundy also asked for a militia instruction (which Philpot also joined) but without reference to the role of militia in resisting tyranny.  Asked to comment on his filing, Philpot stated, “It’s important to the theory of the case.  Historically, when the government threatens its citizens by overstepping Constitutional limits, the Second Amendment is as valuable a right as the First Amendment for exercising citizens’ rights and preserving our Republic.”  Philpot also cited the Ninth Circuit case of United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007) insisting that the defendants in this trial be enabled to present to the jury the full theory of their defense.  The requested instruction “is correct in explaining that the Second Amendment protects both an individual’s right to bear arms, and his or her right to participate in non-governmental militia activity, including the training and organization of voluntary citizens” writes Philpot, citing another prominent decision in the Fifth Circuit Court of Appeals back in 2001 where that federal appellate court concluded that,

“‘[A] well-regulated Militia’ refers not to a special or select subset or group taken out of the militia as a whole but rather to the condition of the militia as a whole, namely being well disciplined and trained. And, ‘Militia,’ just like ‘well-regulated Militia,’ likewise was understood to be composed of the people generally possessed of arms which they knew how to use, rather than to refer to some formal military group separate and distinct from the people at large.”

The Bundys and other co-defendants have insisted that their actions were not designed as a conspiracy against the United States, but as a protest against federal overreach, and a valid exercise of Constitutional rights.  The federal government has long admitted that only violence that took place in the 2014 “stand-off” was by actions taken by federal agents, not the Bundys or other protesters.  The federal government has argued on the other hand, that protesters conspired to extort and commit violence against federal employees.  Several defendants have already been unanimously acquitted by a federal jury after two prior trials, others have been tried multiple times, resulting in mistrials.  The upcoming trial will be the third trial regarding the Bunkerville, Nevada incident from back in 2014, and follows the acquittal in a similar federal criminal trial in Oregon back in October 2016, where Ammon Bundy, Ryan Bundy, David Fry, Jeff Banta, Ken Medenbach, Shawna Cox, and Neil Wampler were unanimously acquitted by a jury of federal conspiracy and related charges.  Even after that acquittal in Oregon, Ammon and Ryan Bundy have been held in austere confinement in the Nevada Southern Detention Facility as they’ve awaited trial in Nevada.

Proposed Jury Instruction filed by Ammon Bundy Attorney, J. Morgan Philpot. September 28, 2017.

Philpot’s recent filing also comes after a letter made public, earlier this month, where U.S. Rep. Raul Labrador (ID) warned of “a strong possibility that a miscarriage of justice is being committed” in the prosecutions of Idaho men for their role in the 2014 Bunkerville Nevada conflict.  Rep. Labrador, along with more than 50 current and former members of the Idaho Legislature sent the letter to U.S. Attorney General Jeff Sessions following a similar earlier letter in late August in which Idaho lawmakers asked Sessions to halt or ease back on the cases against Ammon Bundy and other Idaho defendants Eric Parker, Scott Drexler, and Todd Engel.

Philpot is representing Ammon Bundy in Nevada, along with local attorney Dan Hill.  Philpot also previously represented Ammon Bundy in the Oregon case, along with attorney Marcus Mumford. Philpot’s work in Nevada is officially pro bono, but supporters can donate via Paypal.

Bundy Protestors outside federal courthouse, Las Vegas, NV. April 12, 2017. Photo Credit: Las Vegas Review Journal, Bizuayehu Tesfaye.