Appendix I
Potowmack Institute, amicus curiae
US v. Emerson, Fifth Circuit, Case No. 99-10331

[Much libertarian/gun lobby pseudoscholarship can be found at:
Second Amendment Foundation archive]

1. Abusing Federalist Paper No. 46,
    Madison in the Va. Ratification debates.
2. Abusing Federalist Paper No. 29
3. Patrick Henry's "That every man be armed."
4. George Mason, "I ask, sir, who are the militia?"
5. Joseph Story's "palladium" and other comments.
6. Federalist Paper No. 46 in the law reviews
7. Federalist Paper No. 46 in the Washington Post. .
8. John Adams, A Defence of the Constitutions of Government of the     United States of America.

[A List of files that provide fraudulent quotes on the internet are provide in the file "The Quotes, the Quotes".]

2. Abusing Federalist Paper No. 29

Starting on page 66 of That Every Man Be Armed, Stephen Halbrook cites Thomas Jefferson and then jumps to the Federalist Papers to justify the right-to-arms as a right-to-insurrection:

Writing in 1787, Jefferson stressed the inexorable connection between the right to have and use arms and the right to revolution, as follows:
God forbid we should ever be twenty years without such a rebellion. . . And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. . .The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.

Jefferson did write these words in reaction to Shays' Rebellion. He wrote from distant observation in Paris where he served for a few years as ambassador. He was not on the scene and had no responsibility to maintain public order. The fifty-five men we call the Framers of the Constitution were alarmed by Shays' rebellion and other less famous domestic disturbances. They were particularly alarmed by Shays' Rebellion because the militia had gone over to the side of the Rebellion. Without Jefferson, the Framers met in Philadelphia to write a new constitution that would create a strong government that could suppress these rebellions and also create a more viable political order that would prevent them from happening. Halbrook continues immediately:

The Federalist Promise:
To Trust the People with Arms


The Federalists were actually in close agreement with Jefferson on the right to arms as a penumbra of the right to revolution. Thus, in The Federalist, No. 28, Hamilton wrote: "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government..." And in No. 29, Hamilton expounded the argument that it would be wrong for a government to require:

But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified and were I to deliver my sentiments to a member of the federal legislature on the subject of a militia establishment, I should hold to him, in the substance, the following discourse:

"The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness of military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country to an amount which, calculating upon the present members of the people, would not fall far short of a million pounds. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles as will really fit it for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments to safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point is a thing which neither they nor I can foresee.

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3. Patrick Henry's "That every man be armed." (Dist. Ct. Op., p. 14)

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 384-7)
Virginia, Saturday, June 14, 1788.
http://lcweb2.loc.gov/ammem/amlaw/lwed.html

The context of "that every man be armed" was who would provide for the arming of the militia, the states or the federal government not a personal right.

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Page 384

Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
. . .
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Page 385

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Page 386
. . .

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a
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Page 387

concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

The honorable gentleman, in endeavoring to answer the question why the militia were to be called forth to execute the laws, said that the civil power would probably do it. He is driven to say, that the civil power may do it instead of the militia. Sir, the military power ought not to interpose till the civil power refuse. If this be the spirit of your new Constitution, that the laws are to be enforced by military coercion, we may easily divine the happy consequences which will result from it. The civil power is not to be employed at all. If it be, show me it. I read it attentively, and could see nothing to warrant a belief that the civil power can be called for. I shall be glad to see the power that authorizes Congress to do so. The sheriff will be aided by military force. The most wanton excesses may be committed under color of this; for every man in office, in the states, is to take an oath to support it in all its operations. The honorable gentleman said, in answer to the objection that the militia might be marched from New Hampshire to Georgia, that the members of the government would not attempt to excite the indignation of the people. Here, again, we have the general unsatisfactory answer, that they will be virtuous, and that there is no danger.

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4. George Mason, "I ask, sir, who are the militia?" (Dist. Ct. Op., p. 10, 13)

The context of "who are the militia?" was the composition of the militia, not the personal rights of militia men.
The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 425)
http://lcweb2.loc.gov/ammem/amlaw/lwed.html
Monday, June 16, 1788.
[more on these words at .../thequotes.html#mason]

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Page 425

Mr. GEORGE MASON. Mr. Chairman, a worthy member has asked who are the militia , if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and

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Page 426

rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.

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5. Joseph Story's "palladium" and Other Comments (Dist. Ct. Op., p. 19)

Similarly, Story's words are lifted out of context:

The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambition and unprincipled rulers, to subvert the government, or trample upon the rights of the people. 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 usurpations 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. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of it burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by the clause of our national bill of rights.

Other passages from Story enlighten his observations:

1791. Treason is generally deemed the highest crime, which can be committed in civil society, since its aim is an overthrow of the government, and a public resistance by force of its powers. Its tendency is to create universal danger and alarm; and on this account it is peculiarly odious, and often visited with the deepest public resentment....

1792. Nor have republics been exempt from violence and tyranny of a similar character. The Federalist has justly remarked, that newfangled and artificial treasons have been the great engines, by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other.

1830. The next clause is, "This is a constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be supreme law of the land. And the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

1831. The propriety of this clause would seem to result from the very nature of the constitution. If it was to establish a national government, that government ought, to the extent of its power and rights, to be supreme. It would be a perfect solecism to affirm, that a national government should exist with certain powers; and yet, that in the exercise of those powers it should not be supreme...A law, by the very meaning of the term, includes supremacy. It is a rule, which those, to whom it is prescribed, are bound to observe. This results from every political association. (Story continues from here verbatim with the passage from Hamilton's Federalist Paper No. 33, amicus, p. 6.)

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6. The Meaning They Seek: Federalist Paper No. 46 in the law reviews

At the end of his book, Gun, Crime, and Freedom, NRA Executive Vice President Wayne Lapierre, lists four so-called "antigun states' right" law review articles and 32 so-called pro-"individual rights view" law review articles. About half of these cite from Federalist Paper No. 46 sometimes in full context. The words in context do not support a personal right. Here is how the words are used when cited:

1. William Van Alstyne, "The Second Amendment and the Personal Right to Arms," forthcoming 43 Duke Law Journal #6 (April 1994)

Alstyne's reference to FP No. 46:

This rather fundamental difference among kinds of government was noted by James Madison in The Federalist Papers, even prior to the subsequent assurance expressly furnished by the Second Amendment in new and concrete terms. Thus, in The Federalist No. 46, Madison contrasted the " advantage. . .the Americans possess " (under the proposed constitution) with the circumstances in "several kingdoms of Europe [where] the governments are afraid to trust the people with arms." Here, in contrast, as Madison noted, they were, and no provision was entertained to empower Congress to abridge or violate that trust, any more than, as Alexander Hamilton noted, there was any power proposed to enable government to abridge the freedom of the press

3. Don B. Kates, Jr., "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (1992).

4. Elaine Scarry, "War and the Social Contract: The Right to Bear Arms," 139 University of Pennsylvania Law Review, 1257 (1991)

Scarry quotes from Federalist Paper No. 46 on page 1296:

But they [the Founders] always pictured large numbers when speaking in terms of the base of authorization [to go to war].fn124

124. This insistence on a wide base of authorization is visible in writings about inclusiveness across differences in age, class, and geography. See supra text accompanying notes 88-89, 92, 112, 120. It is also visible in the recurring preoccupation with the discrepancy between the size of any army and the size of a militia, a disproportion ensuring the population's capacity of self-defense and resistance. For example, Madison wrote:

The highest number to which, according to the best computation, a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls; or on twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fight for their common liberties and united and conducted by governments possessing their affections and confidence.

The Federalist No. 46, a 299 (J. Madison)(C. Rossiter ed.1961). This numerical juxtaposition continually reoccurs. In an 1860 address to Congress on the militia, C. L. Vallandigam contrasted the size of the army and the official returns measuring the size of the militia for the year 1808...

5. David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," 101 Yale Law Journal 551 (1991).

FP No. 46 is referenced in a footnote on page 576.

So if Congress should ever use standing armies to advance tyrannical designs, they would be outnumbered and fought by liberty-loving militia members.fn143

143. See The Federalist No. 46 (James Madison); Amar, supra note 135, at 1496-97.

6. Robert J. Cottrol and Raymond T. Diamond, "The Second Amendment: Toward an Afro-Americanist Reconsideration," 80 Georgetown Law Journal 309 (1991).

7. Akhil Amar, "The Bill of Rights as a Constitution," 100 Yale Law Journal 637 (1989).

Use of FP No. 46:.

In the event of central tyranny, state governments could do what colonial governments had done in 1776: organize and mobilize their Citizens into an effective fighting force capable of beating even a large standing army. Wrote Madison in The Federalist No. 46:

[T]he State governments with the people on their side would be able to repel the danger. .[A standing army] would be opposed [by] a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. .

Levinson quotes FP No. 46 out of context on page 651: .

James Madison, for example speaks in Federalist Number Forty-Six of "the advantage of being armed, which the Americans possess over the people of almost every other nation." The advantage in question was not merely the defense of American Borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protecting political liberty.

10. Joyce Lee Malcolm, Essay Review, 54 George Washington University Law Review 582 (1986).

[critical review of Stephen Halbrook's That Every Man Be Armed]

11. Smith Fussner, Essay Review, 3 Constitutional Commentary 582 (1982).

[review of Stephen Halbrook's That Every Man Be Armed]

12. Robert E. Shalhope, "The Armed Citizen in the Early Republic," 49 Law & Contemporary Problems 125 (1986).

13. Stephen P. Halbrook, "What the Framers Intended: A Linguistic Interpretation of the Second Amendment," 49 Law & Contemporary Problems 153 (1986).

14. Don B. Kates, Jr., "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review 203 (1983).

Kates' use of FP No. 46:.

In Federalist Paper No. 46 [Madison] confidently contrasted the federal government it would create to the European despotisms he contemptuously described as "afraid to trust the people with arms." He assured his fellow countrymen that they need never fear their government because of "the advantage of being armed , which the Americans possess over the people of almost every other nation..." [Kates does not include mention in this context of his concession that the militiamen were on a registry maintained by state government, amicus, p. 20.]

15. Glenn H. Reynolds, "The Right to Keep and Bear Arms Under the Tennessee Constitution," forthcoming in 61 Tennessee Law Review #2 (Winter, 1994)(extensively discussing the Second Amendment in "Firearms Purchases and the Right to Keep Arms," 96 West Virginia Law Review 1 (1993).

Use of FP No. 46: .

Federalists, such as James Madison, held out the private ownership of weapons as one reason for believing that the new government could be trusted not to usurp power. Madison compared the European governments, which he described as "afraid to trust the people with arms," to the new federal government, which need not be feared because Americans possessed "the advantage of being armed , which the Americans possess over the people of almost every other nation."

16. Stephen P. Halbrook, "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," 26 Valparaiso University Law Review 131 (1991).

Use of FP No. 46: .

To a regular army of the United States government "would be opposed a militia amounting to near half a million citizens with arms in their hands." Alluding to "the advantage of being armed , which the Americans possess over the people almost every other nation," Madison continued: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."

17. Stefan B. Tahmassebi, "Gun Control and Racism," 2 George Mason Civil Rights Law Journal (1991).

18. Bernard B. Bordenet, "The Right to Possess Arms: the Intent of the Framers of the Second Amendment," 21 University West Los Angeles Law Review 1 (1990).

19. Thomas M. Moncure, Jr., "Who is the Militia— The Virginia Ratifying Convention and the Right to Bear Arms," 19 Lincoln Law Review 1 (1990).

Use of FP No. 46:

This is not to suggest that recognition of the right to bear arms was solely an anti-federalist position. Madison had already written, Federalist No. 46, of "the advantage of being armed, which the Americans possess over the people of almost every other nation." His description of the militia showed that he shared the same republican principles of the Anti-federalists .

Citizens with their arms in their hands, officered by men chosen from among themselves, fight for their common liberties, and united and conducted by governments possessing their affections and confidence.

He finally noted that in the "several kingdoms of Europe. . . governments are afraid to trust the people with arms."

Use of FP No. 46: .

James Madison, who later drafted the second amendment, noted in Federalist 46 "the advantage of being armed , which the Americans possess over the people of almost every other nation. . ." He then chided the nations of Europe for being "afraid to trust their [sic] people with arms."

22. Stephen P. Halbrook, "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment," 15 University Dayton Law Review 91 (1989).

Use of FP No. 46: .

[Madison] predicted that encroachments by the federal government would provoke resistance and an "appeal to a trial of force." The regular army of the United States government "would be opposed [by] a militia amounting to near half a million citizens with arms in their hands." Alluding to "the advantage of being armed , which the Americans possess over the people of almost every other nation," Madison continued, "[n]otwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."

24. Nelson Lund, "The Second Amendment, Political Liberty, and the Right to Self-Preservation." 39 Alabama Law Review 103 (1987).

25. David T. Hardy, "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harvard Journal of Law & Public Policy," 559 (1986).

26. Robert Dowlut, "The Current Relevancy of Keeping and Keeping and Bearing Arms," 15 U. Balt. L. For. 32 (1984).

27. Joyce Lee Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition." 10 Hastings Constitutional Law Quarterly 285 (1983).

28. Robert Dowlut, "The Right to Arms," 36 Oklahoma Law Review 65 (1983); David I. Caplan, "The Right of the Individual To Keep and Bear Arms," Det. Coll. L. Rev. (1982).

29. Stephen P. Halbrook, "The Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791," 10 Northern Kentucky Law Review. 138 (1982).

Use of FP No. 46: .

To a regular army of the United States government "would be opposed a militia amounting to near half a million citizens with arms in their hands," and referring to " the advantage of being armed , which the Americans possess over the people of almost every other nation," Madison wrote: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." If the people were armed and organized into militia, "the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it."

30. Alan Gottlieb, "Gun Ownership: A Constitutinal Right," 10 Northern Kentucky Law Review 113 (1982)..

Use of FP No. 46:.

Two years before he wrote the second amendment, James Madison was congratulating his countrymen on " the advantage being armed , which the Americans possess over the people of almost every other nation," deriding the despotisms of Europe "that are afraid to trust the people with arms." .

31. Richard E. Gardiner, "To Preserve Liberty— A Look at the Right to Keep and Bear Arms," 10 Northern Kentucky Law Review 63 (1982). Note, "Gun Control: Is It a Legal and Effective Means of Controlling Firearms in the United States?" 21 Washburn Law Journal 244 (1982).

Use of FP No. 46: .

...James Madison discussed, in the Federalist No. 46, how a federal standing army, which he estimated in 1788 would consist of "one twenty-fifth part of the number able to bear arms," might be checked or controlled: [cites much of paragraph from No. 46] .

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7. Federalist Paper No. 46 in the Washington Post.

The NRA refers to the Washington Post as the "rabidly antigun Washington Post." From the interests of the NRA the record is otherwise. Not only does the Washington Post not challenge the fundamental concepts of the gun lobby's armed populace fantasy but publishes uncritically and in relative abundance the misrepresentations on which the fantasy is based. The Washington Post is the best illustration of the poor quality of public discourse on what is really at stake in firearms policy and the refusal to take up the relationship between citizen and state. It is rather ironic that the Federalist Papers were originally published as columns in the newspapers to encourage ratification of the Constitution. The fundamental concepts come up for renewal every few generations. They are up for renewal now. The Washington Post is absent.

A. Wimmershoff-Caplan, July 6, 1989, Appendix D.
B. Robert Cottrol, Nov. 10, 1990.
C. George Will, March 21, 1991.
D. Letter to the Editor, December 23, 1993
E. "A Second Look at the Second Amendment," Joan Biskupic, May 20, 1995.

A. Wimmershoff-Caplan, July 6, 1989, in Appendix D.

B. Robert Cottrol, Letter to the Editor, Washington Post, November 10, 1990

"Our Rights, Our Guns"

Cottrol makes much the same argument as the District Court. Cottrol is co-author of #6 on LaPierre's list in Guns, Crime, and Freedom: "The Second Amendment: Towards and Afro-Americanist Reconsideration," 80 Georgetown L. J. 309 (1991). This amicus argues that the militiamen were citizens under law and government not individual sovereigns, laws unto themselves, in the State of Nature. Cottrol wants to fabricate out of the requirement that the militiamen were required to provide their own weapons a civil right to be secured by government. He does not mention that the militiamen were enrolled on a registry both by the King before the Revolution and by the Militia Act after the Revolution. The requirement that the militiaman provide his own weapon was a form of taxation not a civil right.

Cottrol:

(A copy of this letter was supplied to the court. The Potowmack Institute does not have copyright permission to reproduce the full letter here.)

... The framers of the Second Amendment intended to preserve a militia of the whole population, equipped with individuals' own arms. The Framers' purpose was not simply to preserve the right of states to maintain militias but also to preserve the people's right to own arms as a hedge against potential tyranny. That view was expressed by Second Amendment author James Madison, who extolled " the advantage of being armed, which Americans possess over the people of almost every other nation. "
...

Robert J. Cottrol
Associate Professor, Rutgers Schools of Law
Camden, NJ
[Now at Geo. Wash. U. School of Law]

C. "America's Crisis of Gunfire"

George F. Will, Washington Post, March 21, 1991.

Will concludes with the recommendation that the Second Amendment be repealed as if the courts were actively applying the Second Amendment to strike down any and all laws which regulate individual gun ownership. He made the same recommendation on December 15, 1991, on ABC's Sunday morning program "This Weeks with David Brinkley." He was surrounded by news professionals Hodding Carter, Sam Donaldson, and Brinkley. All four demonstrated their ignorance of the Bill of Rights and how it works. This is the quality of public discourse. Will has a PhD (Princeton, 1968) in political science. Apparently understanding the difference between citizenship under law and government and individual sovereignty in the State of Nature was not part of his course of study.

(A copy of this column was supplied to the court. The Potowmack Institute does not have copyright permission to reproduce the full article here.)

But Levinson notes that the court's ruling far from weakening the Second Amendment as a control on Congress, can be read as supporting extreme antigun control arguments defending the right to own weapons, such as assault rifles, that are relevant to modern warfare. The foremost Founder, Madison, stressed (Federalist Paper 46) "the advantage of being armed, which the American possess over the people of almost every other nation." So central was the Second Amendment to the understanding of America's political order, justice Taney in the Dred Scott decision said: Proof that blacks could not be citizens is the fact that surely the Founders did not imagine them having the right to possess arms.

D. Letter to Editor, Washington Post, December 22, 1993, A 20.

"Guns for the People, Not the State"

Important words here are "standing army" and "prohibitionists". The first is the true context. The second is the political cynicism.

(A copy of this letter was supplied to the court. The Potowmack Institute does not have copyright permission to reproduce the full letter here.)

...
In Federalist No. 46, James Madison speaks of the dangers of federal encroachment on liberty through the use of the standing army . But, he says, the federal government would only be able to muster perhaps 30,000 men. "To these," he continues, "would be opposed a militia amounting to near half a million of citizens with guns sic] in their hands." Later, he refers to "the advantage of being armed , which the Americans possess" in contrast to the Europe, where "the governments are afraid to trust the people with arms." These remarks, along with others too voluminous to quote, make Madison's intentions clear even to those who wish to stick their heads in the sand.
...
Are prohibitionists really going to argue that Georgia codified its right to raise a militia in order to protect itself from itself?

[A full copy of this article was supplied to the court. The full copy is linked above. The relevant excerpts are provided below.]

...
"The aftermath of Oklahoma City is certainly provoking a national political debate about the Second Amendment." said University of Texas law professor Sanford Levinson, one of the few academics who argue that individuals have a right to guns. He said "the legal academy and elite bar" reject a constitutional right to own guns because of their own opposition to private ownership of firearms.

...
Levinson says the 18^th century culture of America's frontier spirit should be considered. He quotes James Madison referring to "the advantage of being armed, which the Americans possess over the people of almost every other nation," said Levinson, "The advantage in question was not merely the defense of American borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protection political liberty."

[T]he militia then must all obey the sovereign majority, or divide, and part follow the majority, and part the minority. This last case is civil war; but until it comes to this, the whole militia may be employed by the majority in any degree of tyranny and oppression over the minority. The constitution furnishes no resource or remedy; nothing affords a chance of relief but rebellion and civil war: if this terminates in favor of the minority, they will terrorize in their turns, exasperated by revenge, in addition to ambition and avarice; if the majority prevail, their domination becomes more cruel, and soon ends in one despot. It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of the citizens , to be used at individual discretion, except in private self defense , or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man— is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws.

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