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The NRA's Hedge on Militias


Potowmack Institute
asamicus curiae in
US v Emerson (1999)


The National Rifle Association
What does the NRA really want?

The National Rifle Association
Charlton Heston Speaks:

The Founders and the AK47
Sue Wimmershoff-Caplan:
The NRA's "armed citizen guerrillas" "outflank", Wash. Post 7/6/89
The Washington Post
Cultivating Ignorance

Guns, Rights, the Libertarian Fantasy, and the Rule of Law
Not Seen in The Responsive Community
Getting Commitment from Congress
The blood on their doorstep
The Libertarian Fantasy on the Supreme Court
Thomas and Scalia
Joyce Lee Malcolm
Ayn Rand, Blackstone
Joseph Story's
"Palladium of the Liberties"
The Second Amendment in Court

History
John Kenneth Rowland
Lawrence Cress
Jerry Cooper
Gary Hart
Pseudohistory
LaPierre's List and the Law Reviews
Revolutionary Militia
Consciousness

Militia Act, 1792
Mass. Militia Act, 1793

Whittaker Chambers
Reviews Ayn Rand

National Review, 1957

Citizen militias are not new. After the conscript militias of the 18th and early 19th centuries fell into disuse, voluntary militias formed and persisted through the end of the 19th century. Where these militias formed the officers were commissioned by the state governments. They were not extralegal. See Jerry Cooper, The Rise of the National Guard (1997), Chap. 1. Historically, the Ku Klux Klan has been an extralegal citizen militia. The Minutemen were a rightwing citizen militia in the 1950s and 1960s. The Minutemen disappeared by the 1970s, but, because the distinction between gun ownership within the rule of law and outside the rule of law was never raised and settled back then, we have now a government with no concept of itself as a government and the next generation of rightwing paramilitary forces in our midst now. Extralegal private armies acting out the NRA's armed populace fantasy, are a great embarrassment to the NRA, but it has to state a position. The Potowmack Institute comments on it below. What emerges is confusing, and up until now unexamined, sophistry.

The Second Amendment Foundation is another gun lobby organization. The Second Amendment Foundation has not offered a recent position statement that we are aware of but it did argue in federal court once for the armed populace doctrine. See US v. Warin and the Second Amendment Foundation's amicus in Warin. Compare the hedging below with "Militias:Training For Doomsday..." from Gun News Digest, a publication of the Second Amendment Foundation.

There is no secret about the armed populace doctrine. People in the larger gun lobby and people associated with the National Rifle Association including some of its high ranking leadership have been quite explicit on the purpose of maintaining extralegal gun ownership. For example, Sue Wimmershoff-Caplan, a member of the NRA national board, wrote in the Washington Post, July 6, 1989: "Twentieth Century military machines are far from invincible when outflanked by armed citizen guerrillas." The NRA Executive Vice President Wayne LaPierre wrote in Gun, Crime and Freedom, p. 7: "...the people have a right, must have a right, to take whatever measures necessary, including force, to abolish oppressive government." One person's oppression is another's appropriate, necessary exercise of public authority to enforce democratically enacted law. What LaPierre makes is a prerevolutionary call to arms. This is a little extreme so the NRA's hedges by putting gun owners somewhere between the State of Nature which is the state of revolution and anarchy and a viable legal political order under a constitution. They sort of consent to be governed but keep their guns outside of accountability to public authority in case things don't go their way. They rather don't really consent to be governed at all. Accountability to public authority is absolutely the only thing the armed populace doctrine cannot accommodate.

The armed populace doctrine receives more explanation in the Potowmack Institute's amicus curiae in US v. Emerson.

Other relevant files:
"The Gun Lobby's Problem"
"Taking Up the Second Amendment
"A National Firearms Policy"
"The Rule of Law"
"Charlton Heston Speaks"

The NRA is in a serious bind between the extremists in its own ranks who really do want to claim a right-to-arms as a right-to-insurrection and the necessity that it maintain its respectability and credibility. The right to insurrection is mitigated to the armed populace fantasy which is a hedge between the two positions. The hedge is the essence of political cynicism. It is a force to be reckoned with in the present political culture.

To maintain respectability the NRA has to disavow the right to insurrection but at the same time it has to proclaim an individual right to be armed outside of the law in order to maintain a contingency of extralegal armed force for the same purpose. A little explanation here from the NRA would be helpful. We will offer ours. Since the NRA's Stephen Halbrook formulates a doctrine of "libertarian republicanism," we will characterize the NRA's individual right to be the same as the Libertarian Party's individual sovereignty. Individual sovereigns by definition do not consent to be governed. They are laws unto themselves in the State of Nature which is the state of anarchy. Oh, they can voluntarily associate, but they reserve the right to secede whenever things don't go their way. Government becomes a treaty among sovereign individuals based on no more than good faith.

To secure rights government has to have "just powers" which derive from more than a voluntary association and good faith. Government not only secures certain unalienable rights, it also provides the mechanisms to decide what those rights are. Individual civil rights are defined and secured by government. That is why we have law and government. We do not define and proclaim our own civil rights. The right to revolution is a unalienable moral right or a natural right or even a God-given right, but it is not one of those certain unalienable rights, not an individual civil right, that government can possibly guarantee.

The real issue is gun ownership within the rule of law or gun ownership outside of the rule of law. Are gun owners citizens under law and government or individual sovereigns, laws unto themselve, in the State of Nature which is the state of anarchy. To have gun ownership within the rule of law which is the only kind of gun ownership that is in the rational self-interest of gun owners as citizens, the NRA would have to give up its armed populace fantasy.

The NRA's hedge on militias starts with an insincere affirmation of the rule of law and the Constitution. It then proclaims though some sophisticated sophistry an individual right which means a right to be armed outside of the law, a right that denies the sovereignty of public authority. It all makes sense except to True Believers when one understands the gun lobby's problem and its strategy.


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The NRA on Extremists

[In bold, are comments added by the Potowmack Institute.]

Policy Statement of the National Rifle Association on Extremist Organizations and Militia Groups

June 7, 1995

Text without comments can be found at:
http://www.shadeslanding.com/firearms/nra.militia.statement.html

Appointed by NRA President Tom Washington at the February 4-5, 1995, Board of Directors Meeting, the Special Task Force to Review Militia Policy unanimously recommended reaffirmation of NRA's pre-existing policies and position. Following its report and subsequent review by the Legislative Policy Committee on May 18, 1995 at the NRA Annual Meeting in Phoenix, Arizona, the Committee voted unanimously to recommend reaffirmation of NRA's pre-existing policies and position. Brought before the membership at the Annual Meeting of Members, with over 1,500 members assembled, the resolution to reaffirm NRA's pre-existing policy on extremist organizations adopted in 1964, and its 1994 statement on militias, was adopted. There were three dissenting votes.

The Potowmack Institute would like to see the debates and know the objections of the dissenting votes. The vote has the appearance of plebescite democracy.

The Board of Directors, at their meeting on Tuesday, May 23, 1995, reaffirmed the following policy by unanimous vote:

WHEREAS the Board of Directors of the National Rifle Association of America gathered at its Annual Meeting on May 22-23, 1995 in Phoenix, Arizona, desires to reaffirm its policy on extremist organizations adopted in 1964, and its 1994 statement on militias, therefore;

BE IT REAFFIRMED AND RESOLVED THAT:

The NRA vehemently disavows any connection with, or tacit approval of, any club or individual which advocates (1) the overthrow of duly constituted government authority,

Has the NRA disavowed any connection with Wayne LaPierre, Sue Wimmershoff-Caplan or the Second Amendment Foundation whose extremist quotes are cited above?

(2) subversive activities directed at any government,

Which would have to include activities engaged by LaPierre's "the people" when they use force against oppressive government and Sue Wimmershoff-Caplan's "armed citizen guerrillas" when they engage in military maneuvers against one of the twentieth century government's military machine.

(3) the establishment or maintenance of private armies or group violence.

How else are Sue Wimmershoff-Caplan's "armed citizen guerrillas" going to exercise their right to abolish LaPierre's oppressive government unless they establish and maintain an extralegal, that is private or revolutionary, army and engage in group violence?

The NRA does not approve or support any group activities that properly belong to the national defense or the police.

But what policies does it advocate that would defeat and disarm group activity that would resist under arms the armed forces and the police in the lawful performance of their duties? What right of self-defense does the NRA give to duly constituted lawful government against the "armed citizen guerrillas" who would outflank it.

The NRA does not approve or support any group that by force, violence, or subversion seeks to overthrow the Government and take the law into its own hands, or that endorses or espouses doctrines of operation in an extralegal manner.

It wants to maintain an individual right to be armed outside of the law as a childish political fantasy. It will maintain the fantasy and give the good faith that it will not act it out. They will tolerate no policy of prior restraint against Puerto Rican Nationalists or others who act out the fantasy. Just draconian punishment after the fact.

The NRA stands squarely on the premise that the ownership of firearms must not be denied American citizens of good repute so long as the firearms are used for lawful purposes.

Outflanking this government with armed citizen guerrillas is not a lawful purpose. It will get someone a few decades in a federal penitentiary. There have to be legal mechanisms to establish "good repute." That means legal categories of gun ownership that specify lawful purposes in law. Self-defense is a lawful purpose but when the NRA appeals to self-defense it has an ulterior motive. There is no conflict in principle between accountability to public authority and gun ownership for self-defense.

The NRA has insisted, does insist, and will continue to insist on the traditional right of American citizens to own and use firearms for lawful purposes.

Now the argument is turning in a different direction. The "gun-grabbers" and "gun-haters" are coming to persecute gun owners. First they will impose the rule of law, define lawful purposes in law, and then enforce the law. They will take away the childish political fantasy of the NRA's armed citizen guerrillas.

BE IT FURTHER RESOLVED THAT:

Although the NRA has not been involved in the formation of any citizen militia units, neither has the NRA discouraged, nor would NRA contemplate discouraging, exercise of any constitutional right.

The NRA having just disavowed private armies now asserts that the formation of private armies is a constitutional right. The NRA's most determined policy objective is to keep gun ownership outside of accountability to public authority so it can maintain the childish political fantasy that it has this "constitutional right."

The NRA strongly supports the Constitution of the United States, and the Second Amendment to that document, which guarantee the right of citizens to participate in militias for proper, lawful and constitutional purposes.

But, what are proper, lawful, constitutional purposes? How are they defined and by whom? We need to hear from the Congress on this.

FURTHER, it is the NRA's view, based on law (Article I, section 8 of the U.S. Constitution; Title 10, U.S. Code, Section 311(a)), court precedents, and legal and historical interpretation, that all able-bodied persons, explicitly those between the ages of 17 and 45, are members of the Federal unorganized militia, except members of the organized state guards (for example, State Defense Forces which exist in about two dozen states), the National Guards of the various states (which also serve as a part of the National Guard of the United States, a military reserve subject to nationalization by the President of the United States), and certain government officials. An "organized citizen militia" must be created under the constitution itself and/or the laws of a state. Title 10, U.S.C., clearly affirms the existence of the citizen militia; it is little changed since the original Militia Act of 1792 (except for the addition in this century of recognition of the third type of militia, the Federally supported National Guard, in addition to the enrolled and unenrolled militia).

The term "unorganized militia" did not come into existence until the Dick Act of 1903. The NRA lifts this language out of federal law to fabricate the doctrine that the "unorganized militia" (also called the "sedentary militia") and is here called the "unenrolled militia", exists outside of any legal authorization. The Militia Act of 1792 only mentions the "enrolled militia" which was armed and trained and on a registry. Here the unorganized militia is "based on law" and "court precedents". The organized militia "must be created under the Constitution and/or the laws of the states." It is unclear here if the unorganized militia is constitutional or unconstitutional. Is it maybe extraconstitutional as in extralegal? How about PARA-constitutional as in PARA-military. It is with this sophistry and confusing language that the NRA fabricates and puts over on the eager to believe its armed populace fantasy.

The "State Defense Forces" mentioned here, created by gun lobby minions in Congress, were shut down in some states because they attracted neoNazis and Rambo wannabees. (See Jack Anderson's column, Nov., 21, 1991.)

The citizen militia since 1792 has never meant an individual civil right guaranteed to unenrolled armed citizen guerrillas. The Second Amendment and the Militia Act of 1792 only make sense within the context of a military organization. The Second Amendment contains the language "to bear arms." To bear arms is a military function. To bear arms against is the dictionary definition of to wage war against. Soldiers in uniform, on a military campaign, commanded by officers, whether in an army or a militia, bear arms. Target shooters, hunters stalking deer, private individuals with conceal/carry permits, and police officers on patrol do not bear arms. The Constitutions denies even the states the right to wage war. It does not give that right to private individuals. Military organization in American history has turned on the dual philosophies of "citizen soldiers" expressed in the Second Amendment and "professional soldiers" expressed in the regular army. See Russell Weigley, The History of the United States Army (1967)

Further, the individual right to own firearms is guaranteed by the Constitution,

According to the Declaration of Independence governments are instituted among men to secure "certain unalienable rights." If owning firearms is an unalienable individual right how does this government secure it? When one stands in front of a judge charged with possession of a machine gun without a federal permit, one can plea not guilty on the grounds that the law is unconstitutional but the judge will proceed with trial and may have a bad temper when it comes to sentencing. See Warin and .../398safbr.html.

but the right to own firearms is not at all dependent upon the militia clause.

It is dependent on constitutional doctrine established by the judiciary branch of government.

The militia clause of the Second Amendment merely adds to the reason for the right, which is a common law right rooted in the right of protection of self, family and community.

The common law does not allow extralegal assembly under arms any more that does the constitutional doctrine of the United States. Self-defense is an unalienable natural right and it is one of those rights secured by government; but, it is not a right individuals define for themselves and it is not an excuse to be armed outside of accountability to public authority. There is no conflict in principle between gun ownership for self-defense and accountability to public authority. Entering into political community and accommodating to the rule of law is the first act of self-protection. In the State of Nature individuals are on their own to defend themselves against private concentrations of power including private concentrations of armed force maintained by the NRA's "armed citizen guerrillas." The NRA in making a demagogic appeal to the natural right to self-defense is appealing to fear and individual self-interest to secure the votes of gun owners to defeat legislation so it can have the right and the fantasy it cannot have in court. Instead of securing rights, now big bad government that takes away rights. To have its armed populace fantasy, the NRA turns the whole business of law and government on its head. The extreme individualism of individual sovereignty and the armed populace fantasy turns a civic culture of public trust into a culture of fear, suspicion and political cynicism.

The Second Amendment guarantees an individual's right to arms;

This is an incantation to be used when "gun-grabbers" and "gun-haters" come to grab your gun. Use it when the NRA's "armed citizen guerrillas" come to grab your gun. We can also sew a copy of the Constitution into our shirts as a bullet proof vest.

participation in a citizen militia organization does not make that right more valid nor any stronger.

Nor does it make it any weaker. Multiplying zero by zero is still zero. The NRA's hedge on militias is reveal here as so much sophistry. But it is a matter of true belief which we have not seen challenged in the halls of Congress or at the Washington Post. It is now seeking certification in federal court.


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