Restoring Law, Government, and Public Trust
To have again the utopian age of robber baron capitalism, the
libertarian right with its Religious Right obstructionist and gun
lobby insurrectionist constituencies will dissolve government
itself. Government is the administrative apparatus of the state.
The state is public authority or public power. The first function
of a state is maintain its sovereignty both internal and
external. A state with no obligation to maintain is internal sovereignty raises the very serious issue of whether or not we
have a state and a government at all. No state, no government,
no laws, no political obligation, it turns out, are what some
people want. To have civilized society the rest of us have
to clarify the fundamentals. This is not about culture wars.
It is about fundamental political concepts.
We can start with the first libertarian, Thomas Hobbes
(1588-1679). We cannot separate "libertarian" and "liberal"
in political theory, but we can separate them from "conservative." Before Hobbes all political theory was conservative: Individuals
were born into political community with obligations. They
received whatever rights when they fulfilled their obligations.
In Leviathan (1653), Hobbes started with the premise that individuals are born in the State of Nature with natural rights
and created political community for self-preservation (self-defense). John Locke (1632-1704) started from the same premise in
The Second Treatise of Government (1689). In Locke individuals enter political community to secure lives, liberties, and estates which mostly meant (capitalist) property. Hobbes and Locke founded the liberal (libertarian) political tradition
our amicus in Emerson)
which runs through the Declaration of Independence and the US Constitution and is the major political influence today in a
world that is still largely conservative. Halbrook puts Locke
and Hobbes on opposite sides of his preposterous divide between authoritarian absolutists and libertarian republicans, but
Hobbes and Locke along with everything American are in the
same libertarian/liberal tradition. There is no conservative
tradition in America. Everything American is in some sense
liberal or libertarian. The Potowmack Institute cannot be
anti-libertarian. Our concern is the malignant direction
of the Libertarian Right where class interest mixes with
dangerous and destructive fantasy.
Locke's The Second Treatise was one of the primary
manuals of the American Revolution. Locke's concern was
to find a source of political authority different from the
ruling conservatism of patriarchy and scripture.
our amicus in Emerson)
The new source was the consent of the governed (not original to
Locke). Government, nevertheless, was still government.
As Alexander Hamilton put it in
Federalist Paper No. 33, government is about "POLITICAL POWER AND SUPREMACY" (caps in
original). It was not a "treaty" based on "good faith."
Chief Justice John Marshall in McCullough v. Maryland
(1819) wrote, "We must never forget this is a constitution we
are expounding here." The constitutional covenant was weighty
and perpetual. President Lincoln put it in his First Inaugural, "Perpetuity is implied, if not expressed, in the fundamental
law of all national governments." Locke uses "perpetual"
throughout in The Second Treatise.
The consent to be governed creates sovereign public authority to
which the individual owes allegiance rather than to an absolute
ruler or to immediate tribe, family and friends. Common
agreement on sovereign public authority creates the rule
of law and public trust which is the basis for not only modern
political life but also modern economic life. A civic culture of public trust is strongly anticipated in Locke. What we are having
a hard time with now is that the individual gives up something to
enter political community to become a citizen. If we give
up nothing we create a political culture of fear and suspicion
which is no political culture at all. In Max Weber's famous
definition of the state as the monopoly on violence
(Das Monopol der legitimer Gewaltsamheith)
the state did not confiscate all the weapons. The exercise
of force was authorized by or permitted by the state
which means by law. See
amicus, Appendix H.
Self-defense, the NRA's present demagogic appeal, is a
permissible use of force long recognized in law. We put
before the Fifth Circuit that there is no conflict in principle
between gun ownership for self-defense and accountability to
public authority. See
Creating legal categories of gun ownership that effectively
disarm the lawless and the disloyal is how gun owners defend
themselves under law and government. That is why we have law
and government. No common agreement on sovereign public
authority produces a domestic arms race. A domestic arms
race fulfills the anarchic libertarian fantasy and provides the
gun lobby opportunity to prey on fear and suspicion to promote
gun ownership for individual self-defense. There can be
individual gun ownership on the slippery slop to anarchy.
There is no individual self-defense in the state of anarchy.
The Rule of Law,
The eighteenth century militia was a very different
civic concept from the malignant, extreme individualist vision
the armed populace doctrine will force on us now.
When there was a threat to the community in the eighteenth
century the political leaders commanded every man to be armed,
undergo training, be on a roster and be available to guard,
usually without pay, against the threat. The King had required
the same before the Revolution as the
Militia Act of 1792
required after. The gun lobby's own pseudoscholars admit this
when they are being intellectually honest. See
.../196gnd.html and Kates in
our Appendix I in Emerson. The militia gave structure and the militiaman gave
obligation to the community. The NRA would rabidly oppose any proposals to implement such practices now.
So how do we get there? The great libertarian fear is government
coercion. The way we minimize government coercion is to use free
institutions. We use free institutions to get out all the relevant information, conduct rational, informed public debate, arrive at a consensus and let policy follow. That is the way the system is supposed to work. Participation in free institutions is the antidote to malignant individualism. We don't cynically sneak in an agenda through demagoguery and fraud. The conceptual foundations of firearms policy are very simple: There can be no constitutional right to outflank this government with
"armed citizen guerrillas".
Because the conceptual foundations for firearms policy have been
neglected for so long, the system has to work the way it is
supposed to work to produce a
national firearms policy. Citizens
have to decide that they are citizens. We have to get citizenship right first. Intellectually the choice is rather simple. There
has to be common agreement on the contours of citizenship as
part of a viable legal political order. Common agreement is a
matter of fundamental law. It is as fundamental as the Constitution itself. Common agreement cannot be decided in legislative committees or in the legal technicalities of court decisions.
The armed populace doctrine brings the libertarian fantasy and whether or not we have political community at all into full relief. This is where we address the fundamentals which
the politicians, the news media
.../washpost.html), the gun
control organizations and the public health lobby have
demonstrated their inadequacy to bring up. Concerned citizens
have to take up the burden on general principles and become a
constituency for law and government. It starts here. There are
also two directly affected important constituencies. One is
respectable republican businessmen when they realize that they
need law and government more than they need the NRA's
"armed citizen guerrillas"
patrolling their neighborhoods. This constituency is misled
by the Wall Street Journal which is now the biggest
promoter of gun rights ideologies among the national media even ahead
of what the NRA calls the
"rabidly antigun" Washington Post
The other is minorities who live in crime ridden neighborhoods where public authority, if present at all, is an occupying force. See
The need for serious political discourse is urgent among both,
but the political leadership that will articulate the
fundamentals for either constituency has yet to emerge. See
One of the great lessons of the Potowmack Institute has been that
only passionate minorities are energized and involved.
The Potowmack Institute has not heard from much from
anyone else. Some hot debate. An unenlightened public, however,
cannot be blamed as long as the NRA calls the
"rabidly antigun" Washington Post refuses to print what James Madison was really describing in
Federalist Paper No. 46.
If we cannot get this one right, we prove the maxim of the
conservative French political philosopher Joseph D'Maistre,
toute nation a la gouvernement qu'elle merité,
"Every nation has the government it deserves." Which is better
in amended form: "Democracy guarantees that every people get the
government they deserve." Getting citizenship right is where we
receive our political education and find our political adulthood
for the twenty-first century.
[PotowmackForum], interactive posting
[NRA v. Reno (July, 2000)]
[US v. Emerson PAGE]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
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