It's not about guns...

It's about citizenship

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revised 08/17/2008
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The former homepage through March 5, 2008, has been moved to a new file. Addressing Gun Violence contains more information.

The homepage from March 5, 2008, to July 16, 2008, the most important part of which is a letter to Walter Dellinger who argued for the DC gov to the Supreme Court, has been moved to "Whither the United States of America?". There are other important observations.

The Supreme Court released its opinion in DC Gov. v. Heller on June 26, 2008, http://www.potowmack.org/hellerSC.pdf, proving again that the most vital and fundamental issues of political life are very far removed from public consciousness. By internet standards the 50-80 viewers who show up at this page everyday are not significantly different from zero. There is no further activism or consciousness.

This where we discover who we are.

This is where we become seriously political.

This is not where we will find intellectual and political leadership.

Or, at least not so far. The urban populations that are suffering the scourge of gun violence have failed to change anything, but with the Heller opinion now in place as a guide for public policy, what may blow away the anarchic "armed populace at large" fantasy is the growing crisis of violence and sovereignty on the Southwest border. Public necessity could force big change very suddenly. When this country gets serious, it can get very serious.

We are not serious now and there is no serious constituency for a viable concept of constitutional government. The Potowmack Institute was at the MillionMomMarches in 2000 and 2004 and could not find a single person out of hundreds asked who had heard of the gun rights cases in court. Meanwhile the gun rights ideologies have made it all the way to the Supreme Court almost completely without public notice or knowledge in Heller and received some qualified and ultimately rather meaningless "right". The gun rights militants follow these cases with intense interest. The gun controllers have not educated the public or even their own constituency. They haven't gotten beyond promoting trigger locks and suing the gun manufacturers. The DC government cannot do better than tinker with its failed gun law.

The Potowmack Institute wrote in its amicus brief in Parker et al. v. DC Gov., filed in July, 2006:

    When federal judges in dissent to the Ninth Circuit denial of an en banc hearing of Silveira speak of an "amorphous body” of the armed people, no different from the NRA’s "armed populace at large" or LENIN’s “armed masses”, a burden falls on the federal judiciary to define and defend constitutional government against anarchy.
    http://www.potowmack.org/parkarg.pdf, p. 20

The Silveira dissents are at:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/019661EF3BAAF4C488256D1D00793D3A/$file/0115098o.pdf?openelement

It was Judge Kleinfeld's dissent that spoke of an amorphous body of the armed populace. In his Parker opinion, Judge Silberman cites Kleinfeld's dissent twelve times. By affirming Judge Silberman's opinion the Supreme Court has embraced indirectly at least Kleinfeld's dissent. This is what we have come to. Instead of defining and defending constitutional government against anarchy, the DC Court of Appeals and the Supreme Court, in throwing a meaningless political sop to the gun vote and the gun rights ideologies, has embraced anarchy and otherwise created a constitutional mess. This is all about politics and demagoguery not constitutional doctrine.

On rereading, the dissent is much worse than it originally appeared. This is all really quite confused and nonsensical. The gun rights ideologies did not get what they want: The right to be armed outside of the knowledge and reach of law and government. The "amorphous body"—that is, the "armed populace at large"— is still subject to "reasonable regulations and restrictions" and registered like the jury pool for call-up. Is there any political leadership to make sense out of the absurdity?

The courts have broken down on the larger context of the "right of the people" in the Second Amendment. The larger context is the republican right of the people to participate in the military functions of the state as conscript citizen soldiers rather than leave those functions up to a mercenary army whether the British Army recently removed in the Revolution or the US Army which as created in the Constitution was explicitly modeled after the British Army. The Second Amendment only makes sense in those eighteenth century terms. Gun rights ideologies completely confuse the difference between the republican right of the people to participate in the military functions of the state— that is, fulfill a coerced civic obligation— and a right of private individuals to be armed outside of the knowledge and reach of law and government.

The Second Amendment was cryptically worded because it was controversial when ratified but for reasons completely different from the controversy now. The original controversy is one time forgot.

The Constitution created a delicate military balance or military federalism between the conscript state militias and the voluntarily enlisted professional US Army at the disposal of the new and untried Federal Government which to many resembled too much the British system. The original antagonistic relationship between the militias and the army was combined in the twentieth century Selective Service Acts. The US Army became in a very republican sense a national militia. It was only yesterday. The Supreme Court does not get it, but neither does anyone else. This is who we are now. The Framers gave us free institutions to sort out controversies as they emerged. We have failed them.

The struggle is over civic values and political culture. The Supreme Court has completely missed this. Justice Kennedy in his talk to the Ninth Circuit judicial conference, July 31, 2008, on C-Span's archive dated August 9, said,
"Law cannot be isolated from history."
"Each generation shapes its destiny."
"The rule of law is in mortal danger."
"The state must have the monopoly on force."
It was incumbent on Justice Anthony Kennedy to explain his statements in light of his vote in Heller. He does not have to worry that anyone else will take him or the Supreme Court to task. The court has isolated the law from history to pander to a present day anarchic constituency. If he will admit that every generation shapes its destiny, he is in conflict with Justice Scalia who wrote the Heller opinion. Scalia wants us to be frozen in the political values, concepts, and institutions of the 1780s— as he will redefine them to satisfy present agendas. None of this is examined in public consciousness.

Kennedy went to tell how most people in the world live outside of the law. Street gangs and warlords rule. This is not anarchy. It has already been called polyarchy. It is already reality not just in the Third World in many American and European cities. It is incumbent on Justice Kennedy to qualify his vote in Heller as to how far he will take us in the direction he finds so dangerous. A less ignorant man might tell us something about the larger context of our present politics.
Nothing of Kennedy's statements appeared in Rick Warren's interviews with the candidates on August 16.

The gun rights ideologies' malignant vision of social and political life parallels the malignant vision of economic life in primitive free market capitalism. The two are intimately connected ideologically and politically. After a long struggle that started in the 1970s, the malignant values have now received the smallest accommodation in constitutional doctrine. Justice Scalia's Heller opinion is a rehash of the arguments in "The Rise of Citizen Militias" published in the John Birch Society's magazine, The New American, in February, 1995. The John Birch Society is part of the ideological persuasion that has never accepted the modern state. It is the source of much Libertarian Right ideology— ideology which in the present political context no one will talk about.

The arguments to fabricate an individual right outside of a military or militia context are fallacious and ignorant. Much attention is given to "the right of the people" under the British Constitution. Missing is any understanding that the eighteenth century British Constitution was based on a constitutional balance not among co-equal branches of government but among the estates of the realm— the people (House of Commons, which was composed of the untitled nobility, the younger brothers of the titled nobility. And, of course, only about five percent of the rest of "the people" had a right to vote and it was by oral declaration not secret ballot.), the titled nobility (House of Lords), and the monarchy (the king and his magistrates). The concepts were of a corporatist political order. The right to arms was a corporatist right within that political order. Corporatist rights did not and could not transfer across the Atlantic.
Also missing is any appreciation that present gun rights insurrectionist ideologies do not have their roots in Anglo-American constitutional law but in the rebellious traditions of Scotland and Ireland which are not only not a part of the Anglo-American constitutional tradition but have been constantly at war with it— to this very day.
The context for gun rights is not in the eighteenth century but in the political struggles of the twentieth century which are struggles over the modern state and the regulation of capitalism. The Libertarian Right will return us to robber baron capitalism's golden age of political liberty pre-1910 when we lived in company towns and worked 70 hours per week in coal mines and sweatshops. The central constitutional issue is the expansion of the powers of the Federal Government under the Commerce Clause. See "The Courts and the New Deal" (The Second Amendment gets its due mention). We can argue about whether the Commerce Clause is always appropriate or less than awkwardly applied, but the objection is on the sweeping ideological principles that any powers of a central government are creeping Stalinism. The ruling value is political cynicism. We cannot be a national community— a modern nation state— that functions collectively to addresses national issues with national authority. See Justice Alito's dissent in US v. Rybar (1996) for where this reasoning leads. Robert Levy, who argued Parker/Heller all the way to the Supreme Court, and his co-author William Mellor wrote The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, released May, 2008. We can argue Supreme Court cases on their merits and demerits, but the ruling value is still unequivocally the political cynicism that we cannot address national issues and national problems with a national governing authority. US v. Miller (1939), which upheld the National Firearms Act of 1934, is included in the twelve. Maybe the Supreme Court was thinking that sawed off shotguns, machine guns, handgrenades, field artillery, etc., in every personal arsenal are not appropriate for self-defense against the rulings of the Supreme Court. The Selective Draft Law Cases (1918) which constitutionalized national conscription in the most radical departure from original design and intent and the Federal Government's most severe imposition on individual sovereignty are not listed. Nor is US v. Darby (1941) which upheld the Fair Labor Standards Act of 1938 establishing the forty hour work week as national law. One constitutional law text describes Darby as the culmination of and the very essence of the New Deal Constitutional Revolution which Levy and Mellor find so horrifiying. It gets very contradictory because the same federal judiciary expanded federal powers under the Fourteenth Amendment to protect individual liberties.
If Rick Warren wanted to get serious with the candidates on August 16, he might have inquired into where they stand on the modern state and the twentieth century constitutional transformations that created it. McCain is committed to the justices on the Supreme Court that are committed to dismantling the modern state.
The struggle as manifest in our present gun rights ideologies is between individual sovereignty and socialism. Sovereigns exist in the State of Nature before there is law and government. Sovereigns make treaties not governments. Socialism becomes any viable concept of constitutional government, like the authority to restrict access to sawed off shotguns and machine guns. The political cynicism that rejects any collective political capacity to deal with the common good and common issues, like the forty hour work week, goes so far as to embrace anarchic and treasonous rights.

It should become obvious that there is more to addressing gun violence than promoting trigger locks. The gun vote is not about guns. It progresses from a malignant vision of social and political life to controlling political and electoral outcomes in a much larger struggle over the modern state and the political economy of capitalism. Other context is at:
http://www.potowmack.org/196rehm.html#5trans,
http://www.potowmack.org/lionel.html#natstate
Robber baron capitalism is our past. The Libertarian Right's future for us is the Mariana Islands. This is real, raw capitalism. The capitalist becomes the sovereign individual of gun rights fantasies ungoverned by laws against slave labor. Search http://www.google.com for "Mariana Islands slave labor". Let us live up to the gun lobby's political fantasy and fulfill Levy and Mellor's constitutional agenda. Let's ship the slave laborers there crates of machine guns, handgrenades and sawed off shotguns so they can be free. Will they then used them against their capitalist oppressors, whom some members of Congress find pure and noble, or their government oppressors, which would include some members of Congress who deny them the protections of law?

The NRA is already making political appeals (email appeal, 07/17/08): "While this [the Heller ruling] is great news, this ruling is only as good as a future Supreme Court allows it to be. The work of five Supreme Court justices today can very easily be undone by five Supreme Court Justices tomorrow— especially if those judges were to be appointed by an anti-gun President and sent to an anti-gun Senate for confirmation!" Those same judges would reverse on sweeping ideological principles not merit or national need the transformations of the United States in the twentieth century into a modern state capable managing an industrial econony, performing on the world stage as a great power, and securing liberty and justice for all.

What is so difficult to understand about this? Treason is the only crime defined in the Constitution. In giving some measure of protection to an individual right to be privately armed outside of a military or militia purpose, five justices on the Supreme Court have given some measure of validity to the gun lobby's insurrectionist— that is, treasonous— doctrine. The Libertarian Right will throw out the constitutional state baby with the modern state bathwater.

The way we defend ourselves under law and government is to function collectively to create legal categories of gun ownership that can be applied against the lawless. There is no conflict in principle between gun ownership for self-defense and accountibility to a governing authority. The only reason there is a claim for an individual right to be privately armed for individual self-defense is because the gun lobby, led by the NRA, works very hard and very successfully to defeat any laws that would apply against the lawless because the same laws would apply against the "armed populace at large", which the NRA argued for without success to the Supreme Court in Perpich. The “armed populace at large” is a collection of sovereign individuals who made a treaty not a government. The distinction is fundamental. There are somethings we have to get right first.
http://www.potowmack.org/2ndtreat.html#94,
http://www.potowmack.org/emerarg.html#fp33.
The laws would also apply even more strongly against the
NRA's "armed citizen guerrillas".
http://www.potowmack.org/parkappe.pdf, p. A-40
and others with insurrectionist fantasies. Why don't we do what the Founding generation did, call out the conscript militia to enforce the laws of the Union and suppress insurrections?

The insurrectionist fantasies cannot be separated from the struggle over capitalism. This agenda has progressed completely without notice in the larger political culture. There is no political leadership or, if discourse in the present election season is any indication, no enlightened citizenry that understands anything about the political world we live in.

What is most interesting about the gun rights agenda is that it has not succeeded. The gun rights ideologies had already been defeated in the Appeals Court. The DC Court of Appeals released its opinion on March 9, 2007, in Parker et al. v. DC Government. However, after many pages in which the court fabricated an individual right to be privately armed outside of any militia or military context and struck down DC's gun control law, Judge Silberman fell back on original military preparedness and arrived at these conclusions:

Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability: These are the makings of a firearms policy. No local policy will work without a national policy that addresses the illegal traffic between and among jurisdictions. That can only be accomplished with registration and reporting of private sales— constitutional under the militia clauses not the Commerce Clause. The Federal Government need do little more. The obstacles are political not constitutional. There is nothing in Scalia's Supreme Court opinion which invalidates Silberman's conclusions. Who can be opposed and for what reason?

There has been argument and disagreement within the gun rights crowd but not anywhere else.
Registration and Licensing, NRA Fact Sheet
"The NRA's Gun Control Schizophenia"

The DC government had no business taking Parker to the Supreme Court. There were murmmerings in the news leading up to the Supreme Court opinion that the DC government would have to rethink its gun control law.

The DC government is the other part of the problem. The DC government should have been rethinking its gun control law thirty years before. It is failed law. It does not work. The mentality that wants to defend and maintain bad law is part of the problem of who we are. If thirty years before was not soon enough, in 1998 the Potowmack Institute gave lawyers for the District of Columbia the arguments they needed to address gun violence and a formula for a firearms policy. The Potowmack Institute's proposal for a national firearms policy was originally written in 1998 and last updated in 2001. It has now been validated by the Supreme Court. The Potowmack Institute gave the DC lawyers the arguments again when Parker was in the district court in 2003. After March, 2007, the District of Columbia needed only to take Judge Silberman's conclusions and go with them. Enough people, some of them taking instructions from the Potowmack Institute, told the DC government that. Post Heller, instead of tinkering with a new law that will not work to address gun violence, the DC government's business should be to lead on national policy that will address the illegal traffic between and among jurisdictions.

There is nothing unconstitutional about a national policy based on registration and reporting of private sales. The Militia Act of 1792, enacted by the same people who ratified the Second Amendment, required gun owners to be enrolled for militia duty— that is, registered in gun rights consciousness— and that their privately owned weapons be placed on inventories.
http://www.potowmack.org/parkappf.pdf
http://www.potowmack.org/milret.html
The inventories were reported to the President of the United States who reported them to Congress. Those inventories were maintained into the 1830s by which time the conscript militia had become a moribund institution. Militia duty was conscript duty. The coerced civic obligation was resurrected and transformed in the twentieth century Selective Service Acts. By original design and intent, military preparedness trumps all rights and other concerns and interests as Judge Silberman in the end seemed to appreciate. The Supreme Court has not contradicted his conclusions.

In 1983, gun rights advocate Don Kates in an article in the Mich. Law. Rev. was intellectually honest enough to recognize that registration was okay by original design and intent. Civil obligation, again, triumphs over insurrectionist fantasies. Kates gives no compelling purpose that the courts need to protect for the right to have a registered gun. The NRA's chief "scholar", Stephen Halbrook, was horrified by Kates' registration concession and the disagreement within the gun lobby and among its "scholars" has never been resolved. It has been resolved by the courts.

Halbrook wrote the Hutchison/Cheney brief to the Supreme Court in Heller, onto which McCain also signed.
http://www.mcclatchydc.com/homepage/story/31563.html
He argued that the court has to respect the will of the people as expressed in the will of Congress when the will of Congress is an expression of NRA lobbyists which include Halbrook.

There is a much greater burden of historic responsibility. The DC Government cannot be faulted too severely for failed leadership when everyone else fails. Failure spans the whole spectrum of politicians and the multiplicity and multitude of our shallow, lazy news organs. This is where we discover who we are.

The courts have given the opportunity to neutralize the gun vote and its role in the larger politics. No one has seized it. An aroused citizenry does not exist. Public knowledge and consciousness are absent. We don't have to raise abstruse issues about the Commerce Clause, but we can rise above the level of bumper sticker slogans and sound bite demagoguery. The citizenry failed during the primaries to challenge the candidates, but we now have until November to pose a few simple questions to our candidates who want to be under oath of public office as president of the United States: Do you accept and support Judge Silberman's conclusions? Will your administration work towards a national firearms policy based on these conclusions? With a few simple questions everything political changes. The gun vote is neutralized. Other candidates and office holders need not be exempt from the inquiry.
Rick Warren did not ask the questions on August 16.

There is a reason why the NRA, which now embraces Heller, has worked very hard to keep gun rights cases out of court. The gun lobby, led by the NRA, would fight viciously to defeat any legislative attempts to implement Judge Silberman's conclusions. His conclusions make the much ballyhooed individual right he seeks to invent and the core doctrine the gun lobby works hardest to maintain by defeating legislation perfectly meaningless.

Here are observations from within the gun lobby and from libertarians:
http://www.gunweek.com/2003/nra060103.html
http://www.cato.org/pub_display.php?pub_id=3175
http://www.potowmack.org/feldman.html
Do we have to wait till this gets to the Supreme Court? The gun rights ideologies have been in the federal courts for more than thirty years. Where have been our shallow, lazy news organs? Where have been our cowardly politicians? Where has been an enlightened citizenry capable of self-government.
http://www.potowmack.org/warin.html
http://www.potowmack.org/silveira.html
http://www.potowmack.org/nordyke.html
http://www.potowmack.org/emeramic.html
http://wwwa.potowmack.org/parker.html

Meanwhile, adolescent insolence proclaims anarchic, insurrectionist fantasies on hundreds of internet bulletin boards. The adolescent insolence controls political outcomes. There is no political leadership to tell some people they cannot have their childish political fantasy. The gun rights militants need not worry. There is no constituency in the present political culture for the rule of law, civic obligation, and the contours of citizenship. We are all libertarians now. To raise these issues is like going to a assembly of over-sexed fraternity louts and preaching that the only permissible context for sexual expression is lifetime commitment in monogamous marriage. They might listen politely but would be quietly giggling. It is not as if there are not many lives and whole communities at risk. This is who we are.

But, really, it has not sunk in yet that the courts have denied the very right the gun rights ideologies have to have— the right to be armed outside of the knowledge and reach of law and government. What has come out of the courts is not what they thought and hoped for.
http://smallestminority.blogspot.com/
Scroll down to July 2 or go to the archive box:

Public necessity and civic obligation have serious consequences for citizens under law and government and, by historical practice, for their private weapons.

This showed up on
http://elmtreeforge.blogspot.com/2008/07/other-day-kevin-linked-to-this-place.html
on July 4, 2008:

The Potowmack Institute does not know what PSH is.

The Potowmack Institute has some people worried. Notice that the only people who are paying attention are the gun rights militants. We have not heard anything about the most vital and fundamental issues of political life from the DC government, the lawyers, the mayors, the gun controllers, our shallow, lazy news clowns, or least of all our cowards under oath of public office.

The Declaration of Independence was a charter for Revolution. It asserts a right in the State of Nature outside of law and government. The Constitution is a frame of government. Civil rights enumerated and secured in a constitution have to be consistent with what a constitution is. The people do have an unalienable right to take up arms against oppressive government. It is a right in the State of Nature outside of law and government. It is not one of those "certain unalianable rights" that can possibly be secured by government. The Constitution defines treason as the waging of war against the United States. The Constitution is not perverted. It does not then secure a civil right to commit the same.
How are they going to take up arms against oppressive government when they and their private weapons are on the militia inventory to fulfill a civic obligation to suppress insurrections? It is, of course, possible when there is a real revolutionary situation and revolutionary movement not a childish political fantasy. When there is a real revolutionary movement, there is no need for a civil right to armed resistance. The American Revolutionaries had a revolutionary movement. They did not have secured under the British Constitution the kind of insurrectionist right that is read into the Second Amendment today. Our present adolescent insolence does not get the logical absurdity. It is very true that the King denounced the Declaration of Independence as treason and sent an army to defeat the Revolution. The libertarian fantasy is that we can be individual sovereigns and just levitate ourselves out of political existence by clutching the gun that big bad government does not know about.
The childish fantasy does not need to worry that we will see the political leadership that tells some people they cannot have their childish fantasy and enforce it with a civic obligation to serve and not destroy.

Here is a treatise on Personal Sovereignty

http://westernrifleshooters.blogspot.com/:

Of course, it says right there in the Second Amendment that the right of the people is the right to personal or individual sovereignty, a right in the State of Nature before there is law and government. The Founding Generation must have been in serious conflict with itself. It has been lost today that the Constitution is a frame of government not a treaty among personal sovereigns. A sovereign gives law. It does not accommodate to a law giving authority. We have no political or intellectual leadership that addresses what we have become.

Or, its worsers. Are they citizens bound by law or individual sovereigns in the State of Nature which is the state of anarchy before there is law? The Supreme Court has nudged us along ever so slightly— and except for right here completely without contradiction— in the direction of anarchy. Socialism, with important policy implications as stated above, is the most common word used to denounce infringments on personal sovereignty. Statism, which has more theoretical implications, is the second most common word.

The next struggle in the courts is over Fourteenth Amendment incorporation against the states. That is the only real meaning for a Bill of Rights guarantee for individuals. That becomes very problematic. The hard core Libertarian Right has never accepted the expansion of federal authority to protect other rights against state infringment. Why the exception for Second Amendment rights? If the courts will find a fundamental right in private gun ownership and protect that right against "infringement" or "abridgement" against the states the court have to find a compelling state purpose for the infringement. The only compelling purpose the gun rights ideologies have offered is the anti-state purpose of insurrection— that is, a civil right to treason. If the courts will protect that right against infringement— that is, in gun rights ideologies, against accountability to law and regulation. Will the courts now embrace this compelling purpose as a civil liberty? The Supreme Court's justices are already in conflict with themselves if they want to go in the direction of any Fourteenth Amendment incorporation.
http://www.potowmack.org/5issues.html#14th.

Regardless of what the courts do, we will not see political leadership, public enlightenment, or an aroused, conscious citizenry.


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