The Libertarian Fantasy on the Supreme Court

Thomas and Scalia

Their Sources

G. Eyclesheimer Ernst

Potowmack Institute asamicus curiae in US v Emerson (1999) The Rule of Law If this be impeachment,... A National Firearms Policy The National Rifle Association Letter to Tanya Metaksa: What does the NRA really want? Response from NRA's Paul Blackman with comments. The National Rifle Association Charlton Heston Speaks: National Press Club, 9/97 Free Congress, 12/97 The Founders and the AK47 Sue Wimmershoff-Caplan: The NRA's "armed citizen guerrillas" "outflank", Wash. Post 7/6/89 The Washington Post Cultivating Ignorance Guns, Rights, the Libertarian Fantasy, and the Rule of Law Not Seen in The Responsive Community Getting Commitment from Congress The blood on their doorstep The 2nd Am. in Court True History John Kenneth Rowland Lawrence Cress Jerry Cooper Gary Hart Pseudohistory LaPierre's List and the Law Reviews Revolutionary Militia Consciousness Militia Act, 1792 Mass. Militia Act, 1793

There are two dimensions to the gun lobby's individual right to gun ownership. One is the libertarian fantasy that we reverse the process described by John Locke in The Second Treatise of Government, declare individual sovereignty, dissolve political community, and return to the State of Nature which is the state of anarchy. The libertarian fantasy mixes with other political ideologies, across the political spectrum, and expresses a defeatist retreat from political life. The other dimension is more closely related to present gun control politics. An exaggerated fear of confiscationist designs in the gun controllers provokes a demand for "a broad individual right" that would protect gun ownership from confiscation. To provide this protection the courts would have to elevate a Second Amendment right to the status of a fundmental right, a status it does not now have. The gun lobby with much assistance from libertarian law professors has produced an enormous volume of "legal scholarship" in recent years to fabricate a broad individual right out of the historical practices of the eighteenth century militia institution. The "legal scholarship," however, does not hold up to careful scrutiny and raises questions about the motives of those who have produced it. The basic case has been embraced by Federal District Judge Sam Cummings in US v. Emerson and is now under appeal in the Fifth Circuit. Some gun rights advocates accept reasonable regulations including licensing and registration (see A National Firearms Policy) but want the protections of a fundamental right established in constitutional doctrine. What the NRA wants is less accommodating. It wants to keep gun ownership out of accountability to public authority to maintain gun owners in a state of civic limbo somewhere between the state of law and government and the state of anarchy. Still other gun rights advocates go even further to an explicit right to armed resistance and insurrection against political authority. An earlier, more explicitly insurrectionist version of the individual right was argued in Second Amendment Foundation's amicus curiae brief in US v. Francis J. Warin (1976). The "legal scholarship" has established credibility with Clarence Thomas and Antonin Scalia on the Supreme Court, but where Scalia and Thomas end up with the right is not much help as protection either against confiscation or for an armed stand off with government. The search for the individual sovereignty of the libertarian fantasy in the courts produces confused results.

Consistent with retrograde libertarian attitudes toward the central authority of the Federal Government, Scalia and Thomas are more concerned with the limits of federal power that the powers of the states. They don't mention incorporating the Second Amendment into Fourteenth Amendment protection applied against the states which is what protection against confiscation would have to involve. Printz struck down part of the Brady Law which imposed a federal mandate for background checks for handgun purchases. It is the opinion of the Potowmack Institute that the Brady Law should never have been enacted as national law. Waiting periods are the business of local jurisdictions to be decided by local needs. The business of the federal government is to maintain the viability of the legal political order which requires the shutting down of the illegal traffic in firearms between and among states so that local jurisdiction can enforce their own rules and regulations which could and would vary widely from jurisdiction to jurisdiction. To this end the Potowmack Institute makes a recommendation for a national firearms policy. This policy is completely consistent, as the gun lobby's own analysts have conceded and would have to concede, with the federal and state Militia Acts of the early republic. See Kates in .../196lrev.html or .../supct2.html. The issue in Printz was whether or not the Federal Government could require background checks to be conducted by the states. If the issue had been looked at from the perspective of the Militia Act of 1792, enacted by the same people who ratified the Second Amendment, the reasoning in Printz might have been different. The Militia Act required the states to "enroll"— that is, register— gun owners for militia duty. The Militia Act was not about individual civil rights and had no concern about the exertion of federal power over the states in matters of militia organization. The enrollment requirement of the Militia Act would be a direct challenge to the very recently invented claim of a "personal right" to be armed outside of the law or at least to have constitutional protection from confiscation. Private weaponry was in short supply and the militiamen's muskets were regarded in the early Republic as a national resource that could be called into service by state or national government. The militia authorities sought to maintain an accurate inventory. The weapons could be requisitioned— that is, confiscated in gun lobby consciousness— for the use of the regular army. Background checks had no meaning or relevance in the context of the Second Amendment or the Militia Act. If there is to be a private right to fulfill the libertarian fantasy to maintain a balance of power between an armed populace and any and all government, the NRA's individual right or Thomas', Scalia's, and Judge Cummings' personal right cannot claim the Second Amendment and the early militia acts as the authority and precedent. Thomas and Scalia might, or good libertarian grounds, resist the exercise of federal authority but would still have to find in the Militia Act of 1792, as an expression of the true meaning and understanding of the Second Amendment, justification for a national registration scheme.

The judicial mechanism for upholding the constitutionality of federal firearms regulations up until now has been the Commerce Clause of the Constitution. The real issue in regulating firearms is not commerce, although the effect of gun violence on commerce is certainly important, but the supremacy of law and the sovereignty of the legal institutions of government to maintain the supremacy of law and the rule of law. When citizens consent to be governed they create a higher law, the "just powers" of government. When sovereign individuals any more than sovereign states make a treaty they create no higher law. The Framers of the Constitution worried about both tyranny and anarchy. Constitutional government is somewhere in between. If the confiscationist designs of the gun controllers represent tyranny then the insurrectionist designs of many gun rights advocates have to represent anarchy. The fear of confiscation is political cynicism. The right to insurrection is childish political fantasy which this government has no business indulging. The cynicism has to be appropriately addressed in the political arena and worked out as policy in the legislative process not in the courts. If the courts are going to recognize and protect a fundamental "personal right" to gun ownership they have to be concerned with its insurrectionist implications. In the courts, a "personal right" will have to be understood, if not decided, on the grounds of the obligations of citizenship in relation to the sovereignty of public authority not on the grounds of commerce.

Thomas and Scalia

Clarence Thomas, concurring opinion in US v. Printz (1997), and Antonin Scalia, A Matter of Interpretation with comments and analysis, including reference to Ayn Rand and Friedich Hayek; .

Joyce Lee Malcolm, Stephen Halbrook, Don Kates, Joseph Story's "palladium of the liberties of a republic" (quoted by Thomas and Judge Cummings) and Blackstone's Commentaries

More on the implications of the libertarian fantasy can be found in:
"The Rule of Law"
"What does the NRA want?

For other descriptions and critiques of the libertarianism and the libertarian fantasy see:
"Libertarians & Conservatives", National Review, 1979.
"Libertarianism or Libertinism?", National Review, 1969.
"Libertarian Movement in America", J. Contemp. Stud., 1983.
On eighteenth century institutions and practices:
John Kenneth Rowland
Lawrence Cress

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