The letter below was received by the Firearms Policy
Journal (predecessor organization of the Potowmack Institute)
in September, 1998, from an NRA member who has
studied the Firearms Policy Journal. The writer raises
serious issues with Tanya Metaksa about what the NRA really
wants.
In October, 1998, we were forwarded a response from
Paul Blackman, Research Coordinator
of the NRA's Institute for Legislative Action. The Potowmack Institute will provide its comments. Many points are made in the Potowmack Institute's
amicus curiae in US v. Emerson.
Blackman does not really address the
serious, fundamental issues--the consent to be governed, the
just powers of government, the obligations of
citizenship--raised by the NRA member in the
September letter. He does not
address the issue of what internal sovereignty is and how
any political community maintains its internal sovereignty.
He does not address the issue raised of how gun owners protect
themselves from an ambush if the NRA's armed populace agenda
is fulfilled and there are no rules and regulations that
can be applied against the lawless. It is not clear
from Blackman's response that the NRA really
understands the full implications of what it wants.
If Blackman is any representative example, the NRA
operates on unexamined assumptions some of which
are positively dangerous. It does not have to worry
as long as there is no political or intellectual leadership
that exposes the falsehoods, articulates another more
hopeful vision of political life, and pursues policies
and cultivates a constituency consistent with it.
The most serious, fundamental issue this country has to face as we enter
the twenty-first century is the contours of citizenship. It is not an issue that the news media appear to be able to handle. Everyone remarks on the political cynicism and then contributes to it. The forces of darkness have nothing to fear:
The rest of us do not have to be constrained.
What the NRA wants is to maintain a balance of power between a privately armed populace and any all government. It has to keep gun ownership outside of accountability to public authority. Accountability means specifically registration of ownership. This is the one point of policy that the NRA works hardest to prevent. It is the only means by which gun ownership can be effectively regulated. In his
brief (p. 39-42) for Sheriff Printz in Printz and Mack (1997), the NRA's Stephen Halbrook devoted several pages to the historical will of the people to reject registration of ownership expressed through the will of Congress. His argument was that the courts have to respect the will of the people. Halbrook does not explain that the will of Congress does not reflect the will of the people in this matter but the lobbying efforts of armed populace ideologues like himself going back to the 1930s. The gun lobby has not been able to win its personal right to be armed outside of any lawful authority in court. It has to have its right by defeating and manipulating legislation. It takes its success in the legislatures to the courts for indirect validation. The same argument was made in
NRA v. Reno (July, 2000) and in the Citizens' Committee for the Right to Keep and Bear Arms'
amicus in Emerson.
Otherwise, to defeat legislation it has to rally an eager to believe constituency. One of the appeals is that gun laws do not work. The recent report by Handgun Control,
Handgun Control, Inc., Press Release, March 21, 2000, NRA Hypocrisy Exposed, "The Enforcement Fable," documents the NRA's strategy to sabotage gun legislation and enforcement. It then can claim gun laws do not work. Handgun Control, however, does not address the armed populace fantasy that motivates it. We will address it here.
What is at stake are the most fundamental issues of law, government, and citizenship. These are not new issues in American history. They come up for renewal every few generations. They are up for renewal now. At the time of the American Revolution just about everyone studied John Locke's The Second Treatise of Government, the primary manual of the Revolution. The newspapers published the Federalist Papers
(LaPierre's list.
Today we get the
Washington Post.
Substantive public debate was conducted at every level of
society— in the parlors, the town squares, and
in the assemblies. The political leaders where engaged. Today
they are not. The real forum of debate in the eighteenth
century, however, was the
pamphlets. Today the
pamphlets are on the Internet. We no longer need the news media
and the politicians for our civic enlightenment. Here is
where the NRA can explain and justify what it really wants
to its own members. We will look for Blackman's further explanation in our
Interactive. We expect a no-show.
The Dereliction and Cowardice of the Washington Post
Sam Donaldson, Michel McQueen (now Martin), Jodie Allen,
Pres. Clinton, the NRA, ABC News, Sunday Morning, March 12, 2000,
NPR's Diane Rehm
"Sixty Minutes"
Or, the politicians:
The Blood on their Doorstep
Dear Ms. Metaksa:
I have concerns about your recent mailing regarding gun
registration and taxation that will take effect on December 1.
You state that "this is first time in American history that our
government has attempted to impose National Gun Registration on
the American people." This is not a true statement. The
Militia Act of 1792, enacted by
the same people who ratified the Second Amendment, required all
gun owners to be "enrolled"--that is, registered--for militia
duty. This is a historical circumstance that must be well known
the National Rifle Association. Don Kates, a prominent Second
Amendment lawyer, is author of three
law review
articles listed in Wayne LaPierre's Guns, Crime, and
Freedom. In one of these articles (Michigan Law
Review, 1983), Kates wrote:
The NRA's opposition to registration is not only in conflict with
history but also in conflict with the recent proposal of
Ron Stewart, president and CEO
of Colt Manufacturing. Stewart proposed in an editorial in the
American Firearms Industry magazine last December a
national permitting system for gun ownership that would required
mandatory training and testing. At least one gun manufacturer
has responded to the very falsely based tactics of Handgun
Control and the public health lobby to impose defectless
liability on gun manufacturers with the intent to drive them out
of business. I think Ron Stewart is on the right track.
Registration including training and testing is not only the
mechanism to remove liability from the gun manufacturers and
place it on gun owners where I think it more appropriately
belongs, but it also provides the mechanism to establish legal
categories of gun ownership that can be used effectively to
disarm the lawless. I provide for my self-defense as a gun owner
under constitutional government by first disarming the lawless.
Otherwise, if all citizens are armed for self-defense, as the NRA
seems to want, and there are no rules and regulations to disarm
the lawless then my insecurity becomes absolute. The armed
predators will simply ambush their victims. I have not so much
faith that the lawless are so stupid or timid that they will not
resort to an extreme course. There is no inherent conflict
between gun ownership for self-defense and legal standards
established under constitutional government.
It is not a question that gun laws do not work. A law that
disarms the lawless is the first law that the 65 million gun
owners in this country have to make work if they are to call
themselves citizens and enjoy personal security as citizens.
The issues become what has changed in the past two hundred years
that registration is a nightmare now when it was not in 1792 and
what does the NRA really want that it has to misrepresent simple
facts of history? What seems to be different is found in
Charlton Heston's speech at the
National Press Club in September, 1997. Heston describes
a permanent pre-revolutionary situation derived from
revolutionary events of 1775-76 not the constitution framing
events of 1787-89. In the language of the Declaration of
Independence when the people "altered or abolished" a government,
they "institute new government." The new government derives its
"just powers" from the "consent of the governed." The
Constitution of the United States instituted new government. The
permanent pre-revolutionary state that Charlton Heston seems to
want places gun owners in a state of civic limbo. By keeping
their guns outside of the law, gun owners refuse the consent to
be governed and withhold themselves and their guns from any
obligation to maintain the "just powers" of government. Without
just powers government cannot secure rights or much of anything
else including its own survival. At the same time, however, in
Heston's conception gun owners do not declare a revolution to
alter or abolish this government. The civic limbo the NRA seems
to want to maintain creates the threat not only of armed lawless
predators but also the threat of the private armies which we have
seen in recent years. It is hard enough to be concerned with the
threat of lawless individuals. I cannot defend myself against
the threat of private armies. Private armies can acquire lists
of gun owners the same as can the government. If there is no
lawful authority to protect me from private armies whom do I call
on when the private armies go door to door confiscating guns.
You make much of the possibility that registration will lead to
confiscation. Let's be clear. To preserve this government and
this Constitution, we need to confiscate guns from the lawless
and the disloyal. Otherwise, private armies of unknown loyalty
create the possibility of tyrannical usurpation. All a tyrant
need do is issue a decree that all weapon owners are to join
forces with the tyrant or surrender their weapons--and those
found not cooperating will be summarily executed. An individual
gun owner has no defenses in that circumstance except to take to
the hills and join a revolutionary army. The revolutionary army
then becomes the tyrant's target. A revolutionary struggle is a
contest for power over who will confiscate the guns. Tyrants
gain the power to confiscate guns because they have defeated a
government that was too weak or corrupt or discredited to
maintain its authority against private or revolutionary
armies--whether Hitler's Storm Troopers or Mao's Red Army.
The NRA has an important mission to defeat bad legislation,
misplaced legal strategies, and legally undefined bureaucratic
intrusions. The tactics and the strategies of Handgun Control
and the public health lobby will produce bad law and bad court
decision. The FBI, the Clinton Administration and the Washington Post likewise have no
conceptual foundations for what they want to accomplish and need
to be held accountable for their true objectives. The burden of
clarification falls on the NRA. The antidote to bad law and bad
legal doctrine is good law and good legal doctrine, but to
achieve good law and good legal doctrine the NRA has to explain
what it really wants. It can start by explaining the "consent of
the governed," the "just powers" of government, and the
obligations of gun owners as citizens not as individuals armed
outside of any law or lawful government. In the eighteenth
century when there was a threat to the community the local
political leadership commanded the men of the community
to be armed, to undergo training and be available to secure the
community against the threat. The militia gave the "just powers"
of government an institutional structure that involved citizen
participation. That was a very different concept of civic life
from the NRA's individual freedom to be armed outside of the law.
These matters need to be explained. If the NRA cannot explain
what it wants, it is sneaking in its own backdoor scheme just as
are Handgun Control, the Clinton Administration and the FBI.
Backdoor schemes of any sort do not deserve support. I await an
explanation.
Dear NRA member:
Thank you for your recent letter to Mrs. Metaksa. She has asked
me to respond on her behalf.
First, regardless of whether Don Kates's interpretation of what
the Militia Act of 1792 would suggest might be constitutional
under the Second Amendment, the FBI proposal remains the first
serious attempt to impose national gun registration. The Militia
Act and the FBI proposal differ in a number of ways, with only
the latter constituting anything approaching national gun
registration. For one thing, the Militia Act applied to citizens
rather than to their firearms; were it an effort to limit access
to guns, it would be more similar to a licensing proposal than a
registration proposal. In addition, the Militia Act did not call
for any national record keeping.
Tanya Metaksa
September 7, 1998
Executive Director
The National Rifle Association
11250 Waples Mill Road
Fairfax, VA 22030
...the concept of anonymity or privacy in gun ownership
profoundly departs from the conditions under which the Founders
envisioned the amendment operating. Under the militia laws
(first colonial, then state and eventually federal), every
household, and/or male reaching the age of majority, was required
to maintain at least one firearm in good condition. To prove
compliance these firearms had to be submitted for inspection
periodically.... Since one can scarcely argue that the First Militia Act violated the
amendments, it is difficult to see that
it would be unconstitutional for Congress even today to require
every member of the present militia to possess a firearm and
regularly present it for inspection to assure that it is being
maintained in good working order. Alternately, and fully
consistent with these purposes, a national gun registration
scheme could allow federal authorities to mobilize selectively
those members of the unorganized militia who are already armed
and presumably familiar with the handling of weapons. In sum,
the historical background of the second amendment seems
inconsistent with any notion of anonymity or privacy insofar as
the mere fact of one's possessing a firearm is concerned.
It would be completely consistent with the intent of the Framers
of the Constitution and historical practice if the Federal
Government or state government or just the county sheriff were to
requisition the membership lists of the National Rifle
Association or other gun owner organizations in order to call out
the militia or the posse comitatus.
Yours truly,
An NRA member
[TOP]
[BOTTOM].
NATION RIFLE
ASSOCIATION OF
AMERICA
October 15, 1998
INSTITUTE FOR LEGISLATIVE ACTION
11250 WAPLES MILL ROAD
FAIRFAX, VA 22030-7400
Presidents Washington and Adams did not require the militia returns, but President Jefferson for ideological reasons wanted to emphasize the militia over the regular army required the "Return of Militia" starting in 1802. These reports were made to the Federal Government through the 1820s when the militia was in an advanced state of decline and neglect. The "Return of Militia" under "Arms, Ammunition, Accoutrements" listed all available militia resources including privately owned side arms, pistols, muskets, bayonets, pounds of powder, etc. There was no concern in those days that privately owned arms be maintained outside of the reach and knowledge of the Federal Government. That is our very contemporary armed populace fanatasy.
It called for eligible citizens to be enrolled at the local level, where they resided, whereas the FBI proposal involves information in the hand of the central government. And the Militia Act kept no track of what guns a citizen bought or owned, only required that most enfranchised males had one appropriate gun, and accoutrements; there was no effort to record any information about that gun, nor any interest whatever in any other firearms the citizens might own. And, of course, enrollment was limited to those obligated to provide some military service in time of emergency; there was no effort to collect any information on persons not so obligated (women, children, old men, Indians, blacks, etc.) nor on their guns.
The question was, What does the NRA really want? The answer seems to be what the NRA does not want. What the NRA does not want is licensing that would limit access to guns and national gun registration by the central government. The latent concern seems to be for the kind of ominous threat perceived by our current array of conspiracy theories about the new world order or some such. The NRA can oppose licensing and national gun registration the same as it advocates privacy and anonymity for gun ownership, but Blackman offers no credible explanation for why these objectives are desirable or undesirable on their merits or demerits or how they are constitutional or unconstitutional under the Second Amendment or consistent or inconsistent with the militia practices of the early republic. The NRA and our contemporary conspiracy theorists can have their fears about tyrannically encroaching central government but those fears in so far as they involve the civil rights of private individuals have no roots in the Second Amendment and the Militia Acts of the early republic.
The libertarian fantasy is address in the Potowmack Institute's amicus curiae in US v. Emerson.
As Kates does suggest the context of the Second Amendment can only be understood by the national Militia Act. There were also dozens of state militia acts. The Militia Act of 1792, as Blackman seems to concede, was about military organization. To "bear arms" describes a military function and militia duty was local conscript duty. The Second Amendment and the militia acts were not about individual civil rights. Nor were they about a right to revolution. The larger context of the Second Amendment was the jus militiae, the right of the people to participate in the military function of the state as citizen soldiers rather than leave those functions up to the regular army--whether commanded by the King or the Federal Government. The militia and the regular army were two strongly differentiated concepts. The militia acts enrolled the obligated men of the local community as citizen soldiers. The militia officers maintained detailed lists of all equipment not just muskets but also knapsacks, swords, pistols and even horses. The purpose was to have an inventory of the military resources of the community. The weapons were as important as the bodies. There were no serial numbers then but if there had been they would have been recorded to prevent double counting. As Kates accurately points out there was no concept of a right to privacy or anonymity of gun ownership in its relationship with public authority. Under the Militia Act the enrollments were available to the national government when called on for a legally prescribed purpose. Militia duty was analogous to, but a different concept from, national conscript duty under the Selective Service Acts of the twentieth century. The militia obligation in principle was taken for granted and there was no question of the local officials' authority to impose the obligation. The NRA can oppose registration and lobby for its armed populace fantasy, but it cannot wrap itself in the Second Amendment and the Constitution to have its fantasy.
Stephen Halbrook who argues for the NRA in court denounced Kates' article in the November, 1984, American Rifleman. The NRA lists both Kates and Halbrook prominently as supporters of its "progun" Second Amendment civil right. The NRA might clarify their conflicting positions. Blackman has not.
The context of the eighteenth century militia was described by historian Lawrence Cress in Citizens in Arms (1982):
There is no implication in this description that the militia involved a civil right to private gun ownership outside of the context of the militia institution which involved conscription, a registry and an obligation to serve the community--usually without pay. In contrast to the militia, the regular army was paid, not conscript, duty. Out of concerns about the King's army going back centuries the Antifederalists were very concerned about the potential abuses of a regular army at the disposal of the national government. In his previously unpublished dissertation (1978, excerpts at .../1197row.html), historian John Kenneth Rowland argues that the problem of the Antifederalists, who demanded the Second Amendment, was that they did not understand that the fundamental concepts of political theory had changed from the British Constitution to the US Constitution. The British Constitution involved a theoretical and rhetorical balance of power--in practice, mostly rhetorical--between the rulers (central authority with a regular army) and the ruled (the people enrolled in the militia) but under the US Constitution the rulers and the ruled had become one and the same. The people divided their sovereignty between state government and federal government, consented to be governed by both, and made their arms available to both to be called out as "the force of the community" to enforce "known, settled, standing law" (in the language of John Locke in The Second Treatise.) The theoretical balanced lost its meaning. The change in concepts meant an eventual change in the attitude toward the army and a complete disappearance of the conscript militia by the 1830s. Cress ends his book:
By 1826 the North American Review could editorialize that "the time has past [sic] in the United States, when any just fears are entertained by such a standing army, as may be required by the present system of general defence." Gone was the sense that military policy reflected the intrigue of "particular Administrations of parties." By the end of the first quarter of the nineteenth century, the army had come to be seen as a "settled system, founded on a true estimation of the permanent security and welfare of the country." No longer the agent of ambitious politicians anxious to undermine the rights secured during the war for independence, the American army had become "as much an institution of the country as the Constitution itself."
The constitutional balance has been reinvented today in gun lobby/libertarian consciousness as a balance of power between a privately armed populace of private individuals and any and all government. The new consciousness is a contemporary invention with no roots in the militia consciousness and practices of the eighteenth century.
The true legacy of the Second Amendment, meanwhile, is the citizen soldier in American military planning and democratic philosophy. The dual philosophies of the professional soldier and the citizen soldier have competed as the basis of military organization for two hundred year. The dual philosophies are the theme of Russell Weigley's authoritative History of the United States Army (1967). The citizen soldier and the professional soldier merged in the national army in the twentieth century. There was a brief national conscription law during the Civil War but it was never rigorously enforced and therefore never challenged in court. (Chief Justice Roger Taney actually prepared a brief to declare it unconstitutional but a case never came up.) The Selective Service Act of 1917 was the first time a national conscription law was universally imposed. It was challenged and upheld. If the Supreme Court had examined conscription knowledgeably, it could have ruled that conscription was constitutional for the local militia but not for the national army and forced the need for a constitutional amendment while the United States was at war. The Selective Service Act cases were important events in the evolution of the United States as a modern nation state. In the twentieth century we have described our national armed forces as being composed of citizen soldiers and been proud of their condition and performance as such. In this spirit, the NRA describes itself in some of its literature as a virtual auxiliary to the armed forces of the United States. By doing so it implicitly accepts the centralization of authority in the national government which in other contexts it opposes. If a true militia concept of local conscript duty as a constitutional balance against the dangers of the regular army were maintained, the NRA would have to have a different attitude toward the regular army.
Former Senator Gary Hart has proposed a revival of the organizational aspects of the true militia concept in his recent book, The Minuteman (1998). He argues for a reform of our present military organization based on local reserves. Hart spent twelve years on the Senate Armed Services Committee and is very knowledgeable on this subject. His chapter 4 describes the militia concept accurately in historical context and practice. He cites true historians of the Second Amendment and 18th century militias and mentions none of the long list of gun lobby/libertarian pseudoscholars that we find these days in the law journals. Hart's book is highly recommended for any serious inquiry into this subject. Hart does not get into police functions but the militia mentioned by Cress above could be reinvented with the same logic for local police duty. It could become an instrument and institution to raise republican civic consciousness; however, we would not expect the NRA to support any such proposal today especially if it involved a registry and government control and we are afraid our present day professional police forces for different reasons would not be very sympathetic either.
It would most assuredly not be consistent with the intent of the framers to requisition the membership lists of the NRA or other gun owner organizations.
What is important in the present context is that there was no constitutional protection for any organization to maintain lists of gun owners outside of militia availability. In the eighteenth century gun ownership was never completely private. The public had a claim for public purposes. Privately owned muskets could be requisistioned with or without the musketeer's body. Private lists outside of public reach would have been regarded as a treasonous threat to public order. If there was constitutional protection mentioned for such an absurdity, let's see it. Private lists now are no less a threat but the political culture has degenerated so much that we do not have the political leadership to address the threat.
Whatever other issues might be involved, any such efforts would violate the First Amendment's freedom of association, as interpreted by the Supreme Court.
While those court decisions are from the 20th century, there is nothing in the writings of the Founding Fathers which would suggest that membership lists of potentially controversial organizations could be requisitioned by any level of government.
As to the notion that such lists now could also be obtained by "private armies," the lists are protected by the various security devices used by the NRA and other gun organizations, and efforts to defeat those security procedures would violate any number of federal, state, and/or local criminal laws.
We are getting close to the conceptual foundations of law and government here, but Blackman wants to have it both ways. He wants an individual right--secured by government, mind you--to privacy and anonymity including secret lists of gun owners maintained by controversial organizations. The right to privacy and anonymity is the right to be armed outside of the law. To be armed outside of the law means gun owners do not consent to be governed and do not give "just powers" to government. No consent to be governed means no citizenship, no civic culture, no common agreement on a frame of government. The Bill of Rights is about the privileges and immunities of citizenship in a liberty enhancing political order under law and government not natural rights--which are revolutionary rights--in the State of Nature which is the state of anarchy. Blackman assumes that the "just powers" of government will nevertheless exist to enforce federal, state and local criminal laws. He wants all the benefits of political community without any of the obligations that sustain it. What he wants is the essense of political cynicism.
You seem to be of the opinion that, after the Revolution was successful, the Constitution superseded the right of revolution espoused in the Declaration of Independence, and that Charlton Heston is mistaken in describing a "permanent pre-revolutionary situation derived from the revolutionary events of 1775-76."
The writings of the Founding Fathers and of early constitutional scholars support Mr. Heston's position. In the Federalist Papers, James Madison, father of the Constitution and of the Bill of Rights, explained that the citizenry would have roughly 15 times the firepower of any standing army. The leading constitutional scholar of the first half of the 19th century, Justice Joseph Story, expressly noted that the right to bear arms might allow the people to recapture their government should it become tyrannical. There is simply nothing in either the writings of the Founding Fathers, the early constitutional scholars, or, for that matter, the "social contract" theorists (Locke et al.) who influenced our Founding Fathers, which would suggest that "consent of the governed" meant gun ownership was subject to "'just powers" of government," whatever that may mean.
Locke's final passage begins:
The state of New Hampshire actually wrote Locke's concept into its 1784 Bill of Rights:
The New Hampshire Bill of Rights provoked no controversy. In The Second Treatise the surrendering up of "the executive power of the law of nature" and the right of the community "to imploy his force" are the very foundations of political community and without which there is was no political community. For more on these concepts see our file The Rule of Law. "[W]hatever that may mean" seems to be where Blackman and the NRA have great difficulty.
The great difficulty raises more questions. The gun lobby has not been able to win what it wants in court, but not for the want of trying. See .../warin.html and Appendix E. The personal right is now under appeal in federal court in US v. Emerson. It has to maintain respectability by wrapping what it wants in the words of the Founding Fathers and early constitutional scholars. The passages referred to above are from James Madison's Federalist Paper No. 46 and Joseph Story's Commentaries on the Constitution (1833). The deception is treated in Appendix I of the Potowmack Institute's amicus curiae in US v. Emerson. We might hope that the Research Coordinator for the NRA has read the references he provides in their originals. Blackman is either intellectually incompetent, practicing deception, or deluded by the same kind of true believing wishful thinking that led Speaker Gingrich to predict a gain in the 1998 election of 40 Republican seats in the House. James Madison's words from Federalist Paper No. 46 are the most frequently and ubiquitously quoted to make the case for an individual right to be armed outside of the law for the purpose of maintaining a permanent revolutionary situation. The NRA member guide (insert, American Rifleman, March, 1991,) is as good an example as any:
Federalist Paper No. 46 has been given much attention in Potowmack Institute files which has submitted to the Fifth Circuit in its Appendix I to its amicus brief in Emerson. No more need be added here except to emphasize that Madison's words do not support the claim of a right to revolution and do not describe an individual right to be armed outside of the law. Madison was describing a power relationship between the state maintained conscript militia and the regular professional federal army. The context was the constitutional balance described by Cress above. Madison's purpose, rather than high political theory, was to encourage ratification of the Constitution to which there was much shrill opposition.
Likewise, the passage from Joseph Story's Commentaries on the Constitution does not support the claim. The context again was constitutional balance. In the same passage we also find the often cited phrase "the palladium of the liberties of a republic." The palladium (safeguard) was not about rights of individuals to privacy or anonymity that would contribute to a permanent revolutionary situation. A few sentences later in the same paragraph Story wrote, "How it is practicable to keep the people duly armed without some organization, it is difficult to see." The organization was maintained by the local political authorities who imposed an obligation without regard to individual civil rights. Story's opinions on the militia are expressed in opinions of the Supreme Court in Houston v. Moore (1820) and Martin v. Mott (1827) Story worried that the militia institution and its constitutional function were falling into disuse. He seems to have failed to comprehend the changes in concepts described by Rowland and in attitude toward the regular army described by Cress above. At other places in the Commentaries Story discusses treason at some length. The Second Amendment was not about the right to commit treason. If the NRA wants to claim Second Amendment rights, it has to resurrect the institutional context in which the rights had meaning. See "The Libertarian Fantasy on the Supreme Court" for the full context of Story and his palladium and his comments on treason; also, treated in amicus curiae in US v. Emerson.
There was simply no view that giving some powers to the government meant giving unlimited powers, including the right of the means for self-defense, to the government.
Individuals who enter political community and consent to be governed do not give unlimited powers to government and they do not give up the right to self-defense. Self-defense is a right protected in law and constitutional doctrine. There is no conflict in principle between gun ownership for self-defense and accountability of gun ownership to public authority. However, the right to self-defense does not justify a right to be armed outside of the law and individuals under law and government do not get to decide in their own case what is self-defense .
The question was, What does the NRA really want? What the NRA wants extends beyond the NRA and even into the halls of Congress. There are no secrets here:
Sue Wimmershoff-Caplan, a member of the NRA's National Board, wrote in the Washington Post, July 6, 1989: "Twentieth century military machines are far from invincible when outflanked by armed citizen guerrillas."
Wayne LaPierre wrote in Guns, Crime and Freedom, p. 7: "...those four words--"The Right of the People [from the Declaration of Independence]"--state in plane language that the people have the right, must have the right, to use whatever means necessary, including force, to abolish oppressive government."
David Kopel who is a frequent contributor to NRA publications wrote in "Trust the People: The Case against Gun Control,"Cato Institute Policy Analysis No. 109 (1988) explicitly in the context of gun ownership: "The tools of political dissent should be privately owned and unregistered."
The Second Amendment Foundation asserted in its amicus in US v. Francis J. Warin: "...a basic right of freemen to take up arms to defeat an oppressive government."
Larry Pratt of Gun Owners of American wrote in a recent mailing to GOA members that the Founders "passed [doesn't he mean ratified?] the Second Amendment because they wanted to ensure that no government would ever again have a monopoly of force."
Speaker of the House Newt Gingrich wrote in his book To Renew America, p. 202: "The Second Amendment is a political right written into our Constitution for the purpose of protecting individual citizens from their own government."
Senator Ted Stevens of Alaska has stated: "An armed citizenry, people who have the ability to defend themselves, are [sic] not going to become an oppressed citizenry." Congressional Record, November 19, 1993, p. S16315.
Well, the people do have the right to take up arms to abolish an oppressive government. It is a moral right, a natural right, a God-given right, an unalienable right, but it is not one of those certain unalienable rights, not an individual civil right, that can possibly be secured by government. How could it be? Once the right is exercised and the government is abolished there is no longer a government to secure the right. Such rights exists in the State of Nature outside of the context of government and constitutions. The Declaration of Independence was a charter for revolution. The Constitution is a charter for government. Lawful government is different from an armed standoff. When the Whiskey Rebels, who included militiamen, defied federal authority in 1794 under circumstances very similar to the revolutionary situation of 1774-76, President Washington sent an army and tried the leaders for treason. From the beginning, the constitutional balance described by Cress was a matter of rhetoric and theory with little practical meaning in the resolution of domestic grievances. The gun lobby's very contemporary ideology has a difficult time with public authority. Our contemporary politicians have a difficult time understanding their obligation to maintain sovereign public authority. Not so when the new government was instituted.
I'm afraid I don't understand your references to "civic limbo" or the idea that gun owners are in some such state.
Three hundred years ago John Locke described in The Second Treatise that sovereign states recognize no higher law or authority and exist in the State of Nature in their relations with each other. The NRA will create the same circumstance for sovereign individuals. The Potowmack Institute receives e-mail from gun owners who assert a common refrain that "an armed society is a polite society." Sovereign states have developed elaborate rules of diplomacy to communicate with each other so their signals are not misunderstood. Diplomacy is very polite, but when differences become irreconcilable and communication breaks down, sovereign states go to war. What the NRA wants is not a government that is about POLITICAL POWER AND SUPREMACY but a treaty, a voluntary association, among sovereign individuals, who reserve the right and the means to secede--make revolution--when things don't go their way. The "civic limbo" the NRA wants to have by maintaining a contingency of extralegal armed force is a childish political fantasy. To gain credibility for the claim, the NRA gives the good faith assurance that law-abiding gun owners will not exercise the right. They will just maintain the fantasy. Members of Congress have accepted the good faith. The rest of us do not have to. The capacity to exercise armed force--whether the intent is fantasy or not--is a threat. In John Locke and in law the threat to exercise armed force and the actual exercise is not much different. In Dennis v. US (1951) the Supreme Court ruled:
The question was, What does the NRA really want? Here we have it. The adolescent isolence of the inability to accommodate to sovereign public authority thrashes about on our Interactive. The same inability comes out as political cynicism, with no aversion to deception, in middle-aged men.
Similarly, I don't understand your concern about "private armies go[ing] door to door confiscating guns" because there is "no lawful authority to protect me." Just as their attempts to seize membership lists would be illegal, if an individual or a group goes to a single house, or door to door, seizing guns, or any other property, that constitutes robbery or burglary and theft.
How is it that there is "no lawful authority" to protect us from that? Like other "lawless predators," the government is authorized to take action,
and, until that time, citizens are allowed to use their privately owned firearms (or other weapons, or any other means) to protect themselves from predators and private armies.
In a famous passage about a hundred years ago the German sociologist Max Weber defined the state as maintaining the "the monopoly on violence." Weber was observing the nation-state as a new legal political entity that had been several centuries in development. The American Revolution made important contributions to that development. Alexander Hamilton anticipated the ultimate definition in the passage above from Federalist Paper No. 33. It was anticipated even earlier by John Locke when he referred to "the force of the community." In Weber's passage the state did not confiscate all the guns and leave individuals disarmed and helpless as seems to be the NRA's great fear (certainly Halbrook's). In Weber, the exercise of armed force within the jurisdiction of the state is authorized or permitted by the state which means it is authorized or permitted by law. Under a government of, by and for the people, the laws are enacted of, by and for the people to provide for their security. Stephen Halbrook's political cynicism (p. 9, That Every Man Be Armed) can only conceive of "authoritarian absolutists" who confiscate all the guns and "libertarian republicans" who make a treaty. Constitutional government is somewhere in between. Allegiance to sovereign public authority under a viable constitutional order creates a civic culture of public trust--the opposite of political cynicism. The NRA enters into this discussion with an extreme individualist ideology of individual sovereignty that produces a civic culture of private fear and suspicion and a political life of public cynicism.
Weber is dismissed as a German statist by libertarian ideologues eventhough Germany in his time was more decentralized that was the United States. Weber provided the accepted definition of modern political existence in a nation-state. If Blackman and the NRA have a new political concept, they should formulate it for all to examine so we can decide if that is what we want for the twenty first century. The strategy seems to be to "sneak" it in--as the letter above already suspects--through the kind of misrepresentation that is manifest in the references above to Madison and Story and by promoting civic decline and exploiting a climate of fear to win gun owners' votes .
I'm simply at a loss to understand what your concerns are, or how you believe NRA policy protects predators and armies who wish to commit violent or property offenses.
Similarly, the statement "if all citizens are armed for self-defense, as the NRA seems to want, and there are no rules and regulations to disarm the lawless then my insecurity becomes absolute" makes no sense to me.
The best description of the situation we have seen is provided ironically by libertarian ideologue Ayn Rand in the Virtues of Selfishness:
The use of force--even its retaliatory use--cannot be left at the discretion of individual citizens. Peaceful co-existence is impossible if a man has to live under the constant threat of force to be unleashed against him by any of his neighbors at any moment. Whether his neighbor's intentions are good or bad, whether their judgement is rational or irrational, whether they are motivated by a sense of justice or by ignorance or by prejudice or by malice--the use of force against one man cannot be left to the arbitrary decision of another.
The NRA doesn't want all citizens armed for self-defense. We support legislation proscribing gun ownership for convicted felons, adjudicated mental incompetents, and others. And we certainly don't want anyone to arm himself who doesn't want to be armed. And there are all sorts of rules and regulations disarming the lawless. But even if all citizens were armed for self-defense, how would your insecurity become absolute? It would mean that 100 percent of citizens were armed for self-defense, of who roughly one percent were criminals, which would seem to put criminals at a statistical disadvantage under most if not all circumstances. You seem to be imagining a hypothetical horrible unwarranted either by reality of the hypothetical situation envisioned.
Starting with Aristotle, one important purpose for entering political community was the personal security individuals in the State of Nature could not provide for themselves relying "on their own strength, and their own invention" (--Thomas Hobbes, Leviathan, chap. 13, the same paragraph that ends, "solitary, poore, nasty, brutish and short.") By creating a situation of unlimited access to guns to fulfill its armed populace fantasy and no "just powers" to enforce legal standards or categories that would disarm the lawless and the disloyal and no institutional structure modeled after the militias of the early republic, the NRA will create a circumstance where no one is at liberty not to be armed. The NRA has to maintain this circumstance because, if a national firearms policy supported by gun owners, once they decide they are citizens, were to disarm the lawless and the disloyal, the people might discover that they do not have to rely solely on their private efforts for self-defense, the people might find themselves liberated from the need to acquire and maintain private weaponry, and the NRA would lose its self-defense appeal to win gun owners' votes to defeat legislation.
While there is not much dispute about the notion that convicted felons (and various others) have lost their rights and can be disarmed, there is considerable controversy regarding how such proscription can be constitutionally enforced.
There is no controversy on this at the Potowmack Institute. The means for enforcement will be found when the NRA gives up its imaginary claim of constitutional protection against prior restraint. No prior restraint mean no effective means of enforcement, just word of honor and good faith before the fact and draconian punishment by example after the fact.
Prior restraint is only a constitutional issue in fundamental First Amendment rights of speech, press, and religion. A parade permit is First Amendment prior restraint on a fundamental right regardless that the First Amendment says Congress shall make no law to abridge. When it comes to armed assembly, the threat of armed assembly, or the fantasy of armed assembly, prior restraint to the gun lobby and its libertarian intellectual allies is an infringement on individual sovereignty. Because the courts have never granted constitutional protection from prior restraint, the NRA has to defeat prior restraint by defeating legislation to maintain its permanent revolutionary situation because prior restraint would involve accountability to public authority, the one thing the armed populace fantasy cannot accommodate. Blackman does not mention prior restraint but it a big issue in gun lobby literature.
The fact of the matter is that the lawless will always be in a position to have guns, since they defy the law.
Blackman and NRA can take the lead here once they give up the armed populace fantasy. They should not expect much help from the Washington Post, Handgun Control, the public health lobby or the the politicians.
The question is whether the various proposals would disarm the rest of us and put us at a greater risk. That is the concern expressed by criminologists such as Gary Kleck, who opposes gun laws which might tend to disarm the law-abiding more than the criminal, which would certainly be the effect of mandatory training, testing, registration, personalization, and similar laws.
We were disappointed that the former CEO of Colt Manufacturing appeared to be calling for a licensing scheme, just as we were similarly disappointed by similar proposals by Smith & Wesson in the 1970s. Although Colt has received a $500,000 grant from the government to develop a so-called "personalized gun", we have worked with Colt in the state of New Jersey to defeat a proposed "smart-gun" mandate.
The gun manufacturers appear to be under pressure from the manufacturer liability law suits pursued by Handgun Control and others. When we ask politicians, What does the NRA really want? The answer is, The NRA is a front for the gun manufacturers. The false definition is a recipe for bad strategy, bad law, and bad court decisions. Ron Stewart did not answer the letter at .../ronstew.html. We do not know how serious the gun manufacturers are or what they understand about what they are caught up in. The point was already made in the September letter above that Colt's proposal would put responsibility on gun owners where it belongs rather than on gun manufacturers. We agree. Blackman offers no position on where liability should lie. The Potowmack Institute wants to see the question raised conspicuously in public discourse. We can start asking members of Congress.
You suggest that we make too much of the possibility that registration will lead to confiscation. One reason for this is that there is no benefit.
Registration may lead to confiscation or it may lead to nothing. It cannot lead to good.
(In the '80s, New Zealand [I believe it was] abandoned registration of firearms when the police testified that registration had served no law enforcement purpose since being adopted around the time of the First World War.)
Registration of firearms has been used to assist in confiscation or banning of some firearms in such jurisdictions as Chicago, Cleveland, Washington, D.C., New York City, New Jersey, and Bermuda, in addition to non-Anglo-American nations with even less regard for traditional rights.
During World War II, the Nazis used registration lists of radio
owners to curtail the ability of persons in countries such as
Norway to listen to allied broadcasts. And, of course, the
registration of Jews, in Vichy France and elsewhere was used to
round up Jews for extermination purposes, a rather extreme form
of confiscation. While tyrants may be able to confiscate some
guns, or other property, even without registration, registration
lists make such confiscation easier. And registration of guns
serves no legitimate purpose.
A legitimate purpose is to create the means to confiscate guns
from the lawless and the disloyal. That is why we institute law
and government and how we provide for our security under law and
government. First we have to decide that we are citizens of the
United States and not individual sovereigns who make a treaty
rather than a government. Registration is essential to
a viable legal political order. It is irrelevant to a
revolutionary situation. Legal categories of gun ownership
effectively enforced would only disarm the one percent that
Blackman mentions above. One in a hundred sounds small but it
still creates a large menace. The institutions of government in
this country at all levels combined do not have the manpower
resources to confiscate the remaining 200 million guns in one
swoop. Blackman appears to have as little faith in the ability
of the American people to resist tyranny when necessary as to
make lawful government work when necessary.
Confiscation of guns, radios or anything else is a right of
victory or conquest. What else is the victor supposed to do?
The victorious Allies confiscated weaponry in Germany and Japan
in 1945. Jews in Europe had no state that would protect them so
they created the state of Israel and gave it their allegiance.
Now the palestinians want a state to protect themselves from the
Israelis. In neither case is there any tender concern that they
reserve a civil right to outflank their own government.
(Registration of most property is to aid taxing registered property; that might be fine for houses, cars, or boats, but would conflict with the exercise of constitutional rights, such as voting or gun ownership.)
Registration of automobiles (a title with VIN) and real estate (a deed, filed at the courthouse) are mechanisms of taxation, to be sure, but they also are proof of ownership. We have government to secure property. To secure property requires proof of ownership.
Registration for taxation was one of the constitutional justifications for the prohibitive tax on machine guns, etc., in the National Firearms Act of 1934. We need to come up with a new justification like maintaining the sovereignty of the legal institutions of government against the NRA's "armed citizen guerrillas" who would outflank them. In the eighteenth century they maintained the militiamen on a registry so they could be called out to enforce the laws of the Union and suppress insurrections. If the militiamen were the insurrectionists they had to decide if they were going to respond to the call or continue their insurrection and be indicted for treason. Either way big, bad government had them. The natural right to revolution is "in extremis," as the Second Amendment Foundation put it in its amicus brief in Warin. In extremis means a critical mass of support in the general population. The natural right is a moral justification not a civil right secured by government.
We seem to be in agreement in opposing bad legislation supported by Handgun Control, Inc., the public health fascists, and the Clinton Administration. I don't understand what you are complaining about when you denounce our "own backdoor scheme" as unworthy of support. I'm afraid I can't offer an explanation without a better statement of what it is you're objecting to.
Sincerely,
Paul H. Blackman, PhD
Research Coordinator
Handgun Control and the public health lobby pursue these strategies because they cannot ask, What does the NRA really want? We will ask here. There are simple solutions to the problems of gun ownership and gun violence. The real issue is gun ownership accountable to public authority or gun ownership outside of accountability to public authority. Are gun owners citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy? As long as there are large numbers of guns in the society there will be outrages which, while disturbing and symptomatic of other disorders, in a country of 250 million plus are still relatively rare. The solutions involve a confrontation with fundamental issues not the behind the scene deals in legislative committees and the legal technicalities of court rulings both of which take place largely outside of public view. When it comes to the fundamentals of citizenship, the people have to arrive at a consensus on what they want and let policy follow. Policy will follow when the people insist that members of Congress debate substantive issues on the floors of Congress and on the campaign trail. The NRA will find an important, constructive role to play when it gives up its armed populace fantasy.