Addressing Gun Violence

The questions simply rephrase the issue. The issue is the relationship between citizen and state. The response on the gun rights ideologies side is that governmental authority can only be tolerated as long as there is an armed populace pointing guns at it. On the other side, it is that the only viable concept of nationhood is where the rule of law, the state's monopoly on violence and the state's internal sovereignty all mean the same thing; that there is a difference between civil society and the State of Nature as indicated in John Locke's The Second Treatise of Government from which the American Revolutionaries and the Framers of the Constitution took much of their instructions. On the gun rights side is a childish, anarchic political fantasy, a childish concept of the political self and the essence of political cynicism; on the other, the operating concepts of the system we live under. As the United States goes off on a global campaign against terrorism, terrorist states, terrorist harboring states and rogue states, the ultimate goal is to establish a viable concept of nationhood in politically dysfunctional parts of the world where the rule of law, the state's monopoly on violence and the state's internal sovereignty all mean the same thing. It is the nation state in the present world which is still the vessel for the rule of law, political authority, and the conservative, very unlibertarian heresy of political community. We ought to be able to arrive at some conclusions on what a viable concept of nationhood means in this country.

The issue the gun rights ideologies raise is a logical absurdity. When sovereign individuals in the State of Nature come together to form political community they create a higher law, a governing authority. Again, in political community the rule of law, the state's monopoly on violence and the state's internal sovereignty all mean the same thing. The right to be armed outside of the law is the right to individual sovereignty. Individual sovereigns by definition do not consent to be governed, do not give "just powers" to government, do not "quit everyone his Executive Power of the Law of Nature". They exist in the State of Nature before there is law and government. They still want this government to have the "just powers" to secure the rights they proclaim.

Whatever rights are guaranteed in the Bill of Rights, which is part of the Constitution, have to be consistent with what a constitution is. A constitution is the fundamental law of a political community. A civil right to be armed outside of the law would reduce the Constitution of this political community from a frame of government with "just powers" that derive from the "consent of the governed" to a treaty among sovereign individuals in the State of Nature who give no more than word of honor and promise of good faith.. Sovereign powers, whether sovereign states or sovereign individuals, do not accommodate to a law-giving, law-enforcing authority. They make a treaty not a government. Civil rights are defined in constitutional doctrine by the judiciary. To secure civil rights government needs "just powers" that derive from the consent of the governed. No "consent of the governed" means no "just powers" to secure civil rights or anything else. We are on our own to secure our own rights as individual sovereigns. That is why we need a gun in every pocket. It is not within the powers of the judiciary to reverse the process followed by the Framers of the Constitution from John Locke's The Second Treatise of Government, dissolve law and government, and return to the State of Nature— that is institute anarchy.

That, nevertheless, is what the clamor for a civil right secured to private individuals under the Second Amendment in the present political context seeks. It is a right that has to be had by defeating legislation or loosening restrictions. The big effort at present is to loosen restrictions on conceal/carry permits. The demagogic appeal is to individual self-defense. That is the issue in Parker. A right to individual armed self-defense becomes necessary when the the gun lobby works very hard to defeat laws the would apply the standards against the lawless. Success creates a constituency that can be rallied for other legislative goals. The ultimate goal is to remove the permit requirement entirely. The right to self-defense becomes the right of individual sovereigns. The impermissible claim in the right to self-defense is that it includes a right self-defense against the government itself. Armed self-defense against government satisfies the constitutional definition of treason.

Accountability to public authority is the one point of policy the right to individual sovereignty cannot accommodate. It means an accommodation to a governing authority— an accommodation to the "just powers" of government. It means the "consent of the governed." Accountability means specifically registration of gun ownership— government officials maintaing lists of gunowners. Today lists include sales records and retaining NICS background check records. Registration is the only means by which gun ownership and use can be effectively regulated. Registration, however, is the one point of policy the National Rifle Association works hardest to prevent. It is not seen so much in its public posturing, but it is what the NRA has argued for in court where it matters. The strategy is sophisticated. It can be observed in pp. 38-43 in the NRA's Stephen Halbrook's petition in support of Sheriff Printz in Printz and Mack (1997). and the NRA's petition to the US Court of Appeals, DC Circuit, in NRA v. Reno (July, 2001). The NRA argues that Congress has decided that registration is illegal and the courts have to respect the will of Congress which is presumable the will of the people when it is only the will of NRA lobbyists acting on its minions in Congress. What the NRA really wants is what it argued in Perpich v. Department of Defense (1990). — the right to maintain the militia as the "armed populace at large," all those private individual who maintain their private arms outside of the knowledge and reach of government as a hedge against the consent to be governed. It was a nice try in Perpich. The NRA was on the right side of the ruling, but the Supreme Court ignored the point.

The hedge is the ultimate in political cynicism. Political cynicism is the pervasive mood in contemporary American politics. The political cynicism cannot be regarded as solely a product of NRA mechinations. It is the expression of a broad intellectual movement that spans the political spectrum and is very present in academia. It has produced an enormous volume of "scholarship".

When the political cynicism, the treasonous implications, and the childish political fantasy are invested with enormous political passion and include all the accompanying irrationalities, the fundamentals at stake have to be addressed and settled in the public consciousness. The necessary substantive public discussion has not been taken up anywhere else but has at least begun in legally inconsequential obiter dicta in the federal courts where it does not belong. The judges, nevertheless, have not yet gotten at the substantive political issues of the relationship between citizen and state and the difference between civil society and the State of Nature. In The Second Treatise, Locke characterized anyone who do not know the difference as a "Patron of Anarchy". Our petition to the DC Court of Appeals in Parker is for the court to give an explicit and unequivocal opinion the substantive political ruling.

The opposition to this agenda is public health strategies: sue the gun manufacturers and promote gun safety. The most fundamental issue of political life is reduced to trigger locks. Millions are spent promoting trigger locks. The fundamental political dimensions are missing. The gun controllers have not gotten around to examining their thirty years of frustration and failure. Getting at accountability could have begun in September, 2001. If the gun controllers had devoted themselves to educating a constituency and if they had any political instincts at all, they would have seized the high ground of public discourse after September 11, 2001, by advocating the resurrection of the original militia concept as manifest in the Militia Act of 1792 to create a Homeland Security Militia. Now that conscription has emerged more recently as an issue there is another opportunity seeking leadership to expand the discussion.

Conscription is fundamentally relevant. In the eighteenth century and the early Republic militia duty was conscript duty. It is obvious from a plain reading of the historical record that the constitutional design expressed in the militia clauses of the Constitution, the Second Amendment and the Militia Act of 1792 involved the disposition of military force in the early Republic not the civil rights of private individuals. The only controversy was over jurisdiction.
(Houston v. Moore (1820),
Martin v. Mott (1827))
The militia was a substitute form of military organization to the regular army. It was described at the time as a "substitute." The regular army was modeled after the British Army and was then very suspect as potentially an instrument of arbitrary, remote, unaccountable central authority. The right of militia was, however, an anachronistic corporatist right left over from the concepts of the British Constitution. The best that can be said of the Framers of the Constitution and the political leaders of the early Republic is that they were comfortable with the presence of private arms in the general society. They were also comfortable with conscripting the possessors of those arms into public duty and maintaining inventories of the private arms they possessed. The Militia Act of 1792 required the states to "enroll"— that is, conscript, register— militiamen for militia duty and to maintain inventories, called "Return of Militia," .../milret.html, .../parkappf.pdf. of militia resources including privately owned weapons and report them to the president of the United States— that is, the Federal Government. It was the horror of horrors in present gun rights consciousness that government bureaucrats maintained lists and no one then objected. There was no issue of a right to be armed outside of the militia inventory or outside of any legally authorized or permitted purpose in order to maintain the "armed populace at large". If the original militia concept were resurrected today, the burden would be on the gun rights militants to prove a civil right to maintain private arms outside of the militia inventory. In the early Republic, private arms were requisitioned— that is confiscated in gun rights consciousness— for public duty, .../emerappl.html, .../parkappi.pdf.

"Freedom is participation on power"— Cicero.
The larger context of the militia and the right guaranteed in the Second Amendment is the republican right of the people to participate as conscript citizen soldiers in the military functions of the state rather than leave those functions up to the regular army which was in the eighteenth century the army of empire, usually composed of mercenaries, foreigners and/or social misfits. The opposing concepts of the citizen soldier conscripted into militia duty and the voluntarily enlisted professional soldier of the regular army were combined in the twentieth century Selective Service Acts. The great concern that inspired the Second Amendment and the right and need to preserve and maintain state militias disappeared very early in the life of the Republic. In the twentieth century the distinction between the militia and the regular army became meaningless. The US Army became in a sense a national militia.

The gun rights ideologies, nevertheless, read into the words and the historical concepts and practices their very contemporary childish political fantasy. What was understood in the early Republic as a constitutional balance between the state governments with their pre-existing conscript militias and the newly created federal government with its newly created regular army has been transformed into a constitutional balance between privately armed private individuals and any and all government. The "armed populace at large" becomes the libertarian fantasy of some people, arrested in political adolescence, who have an extreme difficulty accommodating to public authority and giving the "consent of the governed". The fantasy is that this is a viable concept. The right to be armed outside of the law is a right and a fantasy that has to be maintained by defeating legislation. It succeeds because everyone else fails.

The biggest failure is the failure of knowledge. With the inventory requirement of the Militia Act, there are two other great omissions:
1) The arguments for a radical doctrine of popular sovereignty that attempted to justify the actions of the Dorr Rebellion in Rhode Island in the 1840s that were rejected by the Supreme Court in Luther v. Borden (1849);
2) The parallels between our present gun rights doctrine and the Marxist-Leninist doctrine of the state, revolution, anarchy and vigilantism as expressed in Lenin's State and Revolution (1917). This is most ironic because in gun rights ideologies to touch guns with laws is to impose a socialist agenda on America.

In Shots in the Dark (2000), William Vizzard outlines four paradigms for firearms policy: 1) crime control, 2) public health, 3) world view (what we will call "culture wars"), 4) sovereignty. The politicians can't get beyond crime control, the news media dwell on pro-gun/anti-gun culture wars, and the gun controllers, heavily funded by establishment, centrist foundations, have decided on public health. Public health models and strategies have given us: gun safety modeled after improvements in automobile safety and sue the gun manufacturers modeled after sue the tobacco companies. The public health efforts although enjoying enormous political and financial support evade the fundamental political issues and fail to educate the public. In the end they are facilitators in the same political cynicism the gun lobby thrives on. The Violence Policy Center's statement on registration and licensing is an example of where the public health models lead.

Vizzard writes (p. 9): "Although many American are ill at ease with the sovereigny and social order paradigm, it is likely the heart of the gun-control issue." The fundamental relationship between citizen and state is ultimately the heart of any political issue. The extreme individualism of the right to be armed outside of the law is the central issue of contemporary American rightwing politics. It is a belief system and it is not a small matter. Al Gore, if he was anyone's candidate, and the bankrupt Democratic Party, if it has any vision for the country and any capacity to lead, lost the 2000 election on the gun vote alone in at least four states. The John Kerry Campaign and the Democratic Party failed to lead again in 2004. This is the point of leverage where the Libertarian Right controls political outcomes.

In his 1984 book That Every Man Be Armed the NRA's Stephen Halbrook formulates a doctrine of "libertarian republicanism." We can take libertarian republicanism as the unofficial, if not the official, doctrine of the NRA. "Libertarian republicanism" is a contradiction in terms. Republicanism is a form of government. The extreme libertarian vision formulated and promoted by gun rights advocates denies any viable concept of government and the legitimacy of any governing or regulatory authority. They, of course, at the same time call themselves Patriots. The Patriots will defend the people and the Constitution from government. There can be no "just powers" of regulation. Positive law becomes a code of ethics— we hang the Ten Commandments on the wall, thou shall, thou shall not— without powers of enforcement until the code has been violated. The only role for the "just powers" of government is to apply draconian punishment as an example to others who might stray. It is a prescription for authoritarian justice, the very outcome the libertarians fear most. The extreme individualism leads inexorably to the political cynicism that is nowhere more evident than in gun rights politics. Insofar as the right sought cannot be secured by goverment, we get much cynical, small-minded, obstructionist politics.

The antidote to political cynicism is public enlightenment. We use free institutions to get out all the relevant information, conduct rational, informed public debate that arrives at a consensus, and let policy follow. We haven't gotten to that point yet. The personal right to arms outside of any legally authorized or permitted purpose is widely subscribed to. The sham "scholarship" it is built on is widely believed and is now, with much dereliction and complicity everywhere else, making its way into the federal courts.

The gun rights ideologies will have no challenges to fear as long as no one has heard of what is at work in the courts. While the public health paradigm remains dominant, the gun controllers advocate reasonable gun laws based on registration and accountability. Registration is the only means by which gun ownership can be effectively regulated. The gun controllers do not follow through on the arguments to support the fundamental issue at stake. Registration means accountability to public authority. It means accommodating to the existence of public authority. It means telling some people they cannot have their childish political fantasy. It means breaking out of the false pro-gun/anti-gun culture war polarization.

Failure to appreciate what the gun lobby wants and what it fears is to pursue illusions. Addressing gun violence is not for softees and soft heads with an incoherent sentiment that something has to be done. It won't be addressed by waving placards on the Capital Mall to give them a message. The Potowmack Institute was at the Million Mom March in May, 2000, and could not find a single person who had heard of US v. Emerson which was more than a year old at the time. It was at the March again 2004 and could not find a single person who had heard of Emerson, Parker or Seegars. It won't be addressed by sneaking a nice sounding bill through Congress or a state legislature. Rather than address the fundamental relationship between citizen and state, one bill in Congress would authorized the Consumer Product Safety Commission to outlaw toy handguns. Hey, why not just get the little tykes started with toy trigger locks?

Addressing gun violence has to build a strong position on accountability and educate a constituency around the position. The bills on the legislative docket are long on federal regulation and short on public education. What is needed is a national firearms policy that starts with the fundamental relationship between citizen and state.

The greatest single difficulty in addressing gun violence is getting the real issues in front of the public. The best that can said of the news organs is that they are shallow and lazy. There is no curiosity or reseach that will get behind the public posturing of the advocates. The function of the news media in the present political environment becomes to keep public discourse and public consciousness very narrowly confined. The dereliction makes a mockery of free institutions. It is better to promote, by repeating, gun lobby frauds than to have a politically conscious and aroused public. What James Madison was really describing in Federalist Paper No. 46 anyone can judge. What the NRA calls the "rabidly antigun" Washington Post (.../washpost.html, .../emerappi.html) is the worst example of dereliction. (It might be pointed out that among the national news organs the Wall Street Journal actively promotes gun rights ideologies. Its political agenda makes it another category.) The Post adamantly refuses to print the relevant words from Federalist Paper No. 46 in any other than the gun lobby's fraudulent version, .../parkappc.pdf, p. A-15 to A-22. The Potowmack Institute's longest experience is with NPR's Diane Rehm, .../parkappc.pdf, p. A-13. She has had this subject on its proper terms since 1990. It is still more than she can handle. Hers is a very illustrative performance. "Sixty Minutes" is still another example of failed consciousness and performance. The dereliction, however, is much broader and more ubiquitous.

The Second Amendment in Court

Parker, Seegars, Emerson, Silveira, Nordyke and others

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[RESOURCES], Newspaper, magazine, journal articles, books, links

The Second Amendment in Court

Parker v. DC Government, DC Circuit
Seegars v. DC Government, John Ashcroft, DC Circuit

Parker and Seegars are parallel cases in the DC Circuit challenging DC very restrictive, counterproductive, unenforceable gun law. The Potowmack Institute's motion to file an amicus curiae brief in Parker was granted September 2, 2004. Brief is in preparation. Draft is available for review and comment. Parker is in suspension until Seegars is decided. Oral arguments in Seegars were held November 17, 2004.

Nordyke v. King, Ninth Circuit opinion, 2003
Silveira v. Lockyer, Ninth Circuit opinion, 2002
US v. Emerson, Fifth Circuit opinion, 2001
NRA v. Reno, DC Circuit, 2001
US v. Printz and Mack, Supreme Court, 1997

The Potowmack Institute filed an amicus curiae in US v. Emerson in 1999. The District Court's ruling, March, 1999, was appealed to the US Court of Appeals, Fifth Circuit. The District Court ruled in favor of a personal right to be armed outside of any state or militia purpose. The right leads to a right be armed outside of any legally authorized or permitted purpose. At stake in Emerson were the most fundamental issues of law, government and citizenship. The Fifth Circuit ruling was released October 16, 2001. The Ashcroft Justice Department argued against certiorari to the Supreme Court which let the ruling stand. Having received his much ballyhooed individual right, it did not mean very much. Emerson was sent back to the District Court for trial and was eventually convicted.
http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm
See Second Amendment Foundation Emerson page for more information news coverage.
http://www.saf.org/pub/rkba/news/EmersonFix.htm

The Emerson case was an extreme politicization of the federal judiciary to further a very partisan political agenda. The Ninth Circuit's opinion in Silveira was a counter politization. The Ninth Circuit added more obiter dicta in Nordyke v. King. An important issue in these cases is what kind of judges have been placed on the federal judiciary in the past twenty years who embrace gun lobby/libertarian pseudoscholarship. The judges are still coming up for nomination and confirmation but the substantive questions are not being asked.

Since the district court ruling 1999 and appeals court ruling in 2001, the Emerson case has received little or no attention in the news media or among politicians and candidates for office.

Briefs are also available for:
Printz and Mack (1997),
US v. Lopez(1995), and
NRA v. Reno (July, 2000).

Other Second Amendment cases
US v. Wright, Pencak, Hale, Oakes, City of Renton, Nelson, and more.
The Libertarian Fantasy on the Supreme Court: Thomas and Scalia, Joyce Lee Malcolm, Ayn Rand, Blackstone, Joseph Story's "Palladium of the Liberties".

Deep Background: The Rightwing Movement

There is a rightwing movement that is the driving force in contemporary American politics. It is the counter-establishment insurgency against the liberal establishment left over from the New Deal coalition. The gun lobby is a constituency the corporate America needs to win elections. It is very instructive when the Wall Street Journal becomes the major promoter of gun rights ideologies among the national media. This is the point of leverage where the Libertarian Right controls political outcomes.
Continue

Accountability of ownership— which means specifically registration of ownership— has to be the conceptual foundation for a national firearms policy. It is the only policy consistent with citizenship under law and government. Registration is the mechanism to establish enforceable legal categories of gun ownership, arrived at through political processes. The inventory requirement of the Militia Act of 1792 was not a system of registration as understood today but there was mention in those day of a right to be armed outside of the militia inventory.

Accountability of ownership, however, is the one policy the gun lobby's armed populace fantasy cannot accommodate. If that is all the gun lobby really cares about, why talk about anything else? All other efforts will fail, prove the gun lobby's demagogic point that gun laws do not work, and feed the political cynicism. Continue

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Now that impeachment Republicans have harrangued us on the rule of law. As we go off on the adventure of a campaign against terrorism and rogue states ultimately the goal is to establish the rule of law, the vessel for which is a viable concept of nationhood where the rule of law, the state’s monopoly on violence (.../emerapph.html), and the state’s internal sovereignty all mean the same thing. We have not arrived at a conclusion on those concepts in this country. Let us get politicians to explain that the rule of law is and what the consent to be governed imposes on individual citizens. Addressing gun violence is a matter of making gun owners into citizens, under law and government, not individual sovereigns in the State of Nature which is the state of anarchy.
Continue

Getting Commitment from Congress

The blood on their doorstep, July 24, 1998 and more.
"What's wrong with Barney Frank?" explains what is wrong with American politics.

The National Rifle Association

What does the NRA Want?
The NRA wants to maintain a state of civil limbo between the state of law and government and the state of anarchy.
Charlton Heston Speaks
"The Founders and the AK47"
Sue Wimmershoff-Caplan: The NRA's "armed citizen guerrillas", Washington Post, 7/6/89

The Washington Post. Cultivating Ignorance. Some of the record of "rabidly anti-gun" (— The NRA's Tanya Metaksa) Washington Post. Also, Appendix I, in Emerson amicus.
"Sixty Minutes," failing its mission.
WAMU, Diane Rehm, Derek McGinty
Sam Donaldson, Michel McQueen (now Martin), Jodie Allen
ABC News' Sunday Morning with Pres. Clinton and the NRA, March, 2000.

Second Amendment and Military Organization

Revolutionary Militia Consciousness
The Militia Act of 1792
Return of Militia

The inventory of militia resources, including privately owned weapons.


John Kenneth Rowland, 1978
John Kenneth Rowland, Appendix A, US v. Emerson
Garry Wills, "To Keep and Bear Arms," The New York Review of Books, Sept. 21, 1995
George Washington, 1783, "Sentiments on a Peace Establishment."
Henry Knox, 1786, "A Plan for the General Arrangement of the Militia of the United States".
Henry Knox, George Washington, 1790, "Organization of the Militia,".


Plan submitted to Congress, January 1790.
Houston v. Moore (1820)
Martin v. Mott (1827)

Justice Joseph Story on the militia in Supreme Court rulings.
John Trenchard & Walter Moyle, An Argument shewing that a Standing Army..., 1697

The concerns of the 18th century.
The Dorr Rebellion, 1840s

The gun lobby/libertarian radical doctrine of political liberty is not new in American history. It was argued before the Supreme Court in the 1840s.

SEE [RESOURCES],

History

John Kenneth Rowland, 1978
John Kenneth Rowland, Appendix A, US v. Emerson
Lawrence Cress, 1984
Leon Friedman, "Conscription and the Constitution," 1969
Saul Cornell, Constitutional Commentary, 1999
Michael Bellesiles, Constitutional Commentary, 1999
Don Higginbotham, Constitutional Commentary, 1999
Garry Wills, "To Keep and Bear Arms," The New York Review of Books, Sept. 21, 1995
John K. Mahon, History of the Militia and National Guard (1983), Chapters 3, 4, and 5
Chicago-Kent L. Rev. Second Amendment Symposium

SEE [RESOURCES],

Pseudohistory

LaPierre's list and the law reviews. The gun lobby cannot win in court its individual right, which is the right to individual sovereignty. It has to have its right by defeating legislation. To defeat legislation it employs demagoguery and fraud. The fraud is widely believed.

SEE [Tenn. L. Rev., 1995]
and
[Chicago-Kent L. Rev., 2000]

The Second Amendment was about military organization. The larger context was the right of the people to participate in the military functions of the state rather leave those functions up the regular army, which in the 18th century was usually composed of mercenaries, foreigners and/or social misfits.

Noah Webster, Sketches of American Policy, 1785
Noah Webster, Examination of the Leading Principles of the Federal Constitution, 1787
George Washington, 1783, "Sentiments on a Peace Establishment."
Henry Knox, 1786, "A Plan for the General Arrangement of the Militia of the United States".
Henry Knox, George Washington, 1790, "Organization of the Militia,".


Plan submitted to Congress, January 1790.
Revolutionary Militia Consciousness
Return of Militia

The inventory of militia resources, including privately owned weapons.
The Militia Act of 1792
Houston v. Moore (1820)
Martin v. Mott (1827)

Justice Joseph Story on the militia in Supreme Court rulings.
John Trenchard & Walter Moyle, An Argument shewing that a Standing Army..., 1697

The concerns of the 18th century.

SEE [RESOURCES],

The gun lobby's doctrine of political liberty is a subcategory of the libertarian fantasy. The conflict over the libertarian fantasy has taken place in the rightwing movement itself.

"Big Sister is Watching You"Whittaker Chambers, 1957
"Libertarians & Conservatives,"Ernest van den Haag, 1979
"Libertarianism or Libertinism?" Frank S. Meyer, 1969
"The Libertarian Movement in America," George Friedman and Gary McDowell, 1983.


SEE [RESOURCES],

For Deeper Reflection

"Sovereignty in the World Today", Charles McIlwain, Measure, 1950.

"What Russia Teaches Us Now," Stephen Holmes, The American Prospect, July-Aug, 1997

"The Coming Anarchy," Robert D. Caplan, The Atlantic Monthy, February, 1994

"Was Democracy Just A Moment?," Robert D. Caplan, The Atlantic Monthy, December, 1997

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