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Daniel Polsby
before the House Subcommittee on Crime, April 5, 1995

Potowmack Institute
asamicus curiae in
US v Emerson (1999)


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National Review, 1957

Daniel Polsby's Atlantic Monthly article, "The False Promise of Gun Control," March, 1994, has five URLs. Try http://www.shadeslanding.com/firearms/polsby.fpgc.html.

Polsby provides mostly diversionary arguments. The real issue is gun ownership within the rule of law or gun ownership outside of the rule of law. He makes the standard gun lobby/libertarian case that there is contained in the Second Amendment the guarantee of a individual right to self-defense. In the language of the Declaration of Independence, the people institute government to secure unalienable rights which would include the right to self-defense. Entering political community is the first act of self-defense. In the State of Nature the only rights we have are those we secure for ourselves. In political community government secures rights. Government is not some big bad thing that takes away rights. The duties of citizenship are to make government work or there are no civil rights. When the NRA makes this argument it appeals to gun owners' votes to defeat legislation because it cannot get the legislation declared unconstitutional in court. Polsby makes clear that the case is broader than NRA demagoguery.

Polsby also raises the issue of the sovereignty of legal institutions of government whether the monopoly on violence is maintained under the rule of law in the legal institutions of government. When he made this testimony he must have been aware that "armed citizen guerrillas" are on the national scene. When he casts doubt on the sovereignty of the rule of law he implicitly endorses private armies.

He arrives at no clear conclusion in his testimony on either self-defense or sovereignty.

Comments and additions by the Potowmack Institute are in [bold and brackets].


House Judiciary Committee
Subcommittee on Crime
April 5, 1995
Prepared Statement of Daniel D. Polsby,
Kirkland and Ellis Professor of Law,
Northwestern University,
Chicago, Ill.

How one should interpret the Second Amendment is a matter of opinion. How the drafters of the Second Amendment understood its text and function is also a matter of opinion, although here special weight is accorded to the views of professional historians and constitutional scholars who have inquired into the matter. The overwhelming burden of conviction among those who have published research on the Second Amendment is that its drafters meant it to secure an individual right and not a 'collective right'— as though there could be such a thing— that was dependent on membership in an organized soldiery.
The Second Amendment is about the right of the citizenry to participate in the military functions of the state rather than leave those functions up to the king's or the Federal Government's regular army. There are objective, intellectually honest historians who have written on the Second Amendment, militias, and citizen soldiers:

John Kenneth Rowland, .../potowmack/1197row.html, previously unpublished PhD dissertation, Ohio State, 1978. Rowland prepared an original historical analysis of the 17th and 18th century official uses of "to bear arms" included as Appendix A in the Potowmack Institute's amicus curiae for the Fifth Circuit in US v. Emerson.
Jerry Cooper, The Rise of the National Guard (1997). Chapter 1 treats the period from colonial America to the Civil War.
Russell F. Weigley, History of the United States Army (1967). Weigley's theme is the dual system of citizen soldiers (jus militiae) and professional army.
Lawrence Cress, Citizens in Arms (1982)
John K. Mahon, History of the Militia and the National Guard, (1983)

Also, a very readable, informative, historically accurate perspective from a politician who is not a professional historian but who did spend many years on the Senate Armed Services Committee:
Gary Hart, The Minutemen (1998), chapter 4, "The Republic and the Militia"


See:

[* indicates that the item is on LaPierre's list of law journal articles.
# indicates that Federalist Paper No. 46 is quoted or misquoted.]

[books:]

Clayton E. Cramer, For the Defense of Themselves and the State (Praeger, 1994)

Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard U. Press, 1994)

[#]Stephen Halbrook, That Every Man Be Armed (University of New Mexico Press, 1984)

[journal articles]

[* #]William W. Van Alstyne, "the Second Amendment and the Personal Right to Arms," 43 Duke Law Journal 1236 (1994)

[* #]Glen Harland Reynolds, "The Right to Keep and Bear Arms Under the Tennessee Constitution," 61 Tennessee Law Review 647 (1994)

Nicholas J. Johnson, "Beyond the Second Amendment," 24 Rutgers Law Journal 1 (1992)

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

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

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

[* ]Akhil Reed Amar, "The Bill of Rights as a Constitution," 100 Yale Law Journal 1131 (1991)

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

[* #]Sanford Levinson, "The Embarrassing Second Amendment," 99 Yale Law Journal 637 (1989)

[* ]Nelson Lund, "The Second Amendment, Political Theory, and the Right to Self-Preservation," 39 Alabama Law Review 103 (1988)

[* ]David T. Hardy, "The Second Amendment and the Historiography of the Bill of Rights," 4 Journal of Law & Politics 1 (1987).

[* #]Robert E. Shalhope, "The Armed Citizen in the Early Republic," 49 Journal of Law and Contemporary Problems 125 (1986).

[* #]David T. Hardy, "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harvard Journal of Law and Public Policy 562 (1986)

Lawrence D. Cress, "An Armed Community: The Origins and Meaning of the Right to Bear Arms," 71 Journal of American History 22 (1984)

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

[Halbrook's book gets attention in other places in Potowmack Institute files. See Abusing Federalist Paper Nos. 29 and 46, Abusing John Locke. The law reviews are noteworthy. Other law journal articles on LaPierre's list receive comment in the Law Reviews. The use and abuse of Federalist Paper No. 46 is noted there. There is no consistent message in the articles that make the case that gun ownership cannot be touched by laws. Kates' article actually supports the national firearms policy recommended by the Potowmack Institute. Halbrook, listed above, denounced Kates' historical accuracy in the NRA's magazine, the American Rifleman, Nov., 1984, as "Orwellian Newspeak."

Polsby's destroys his credibility with the inclusion of Lawrence Cress' "An Armed Community." "An Armed Community" was written in rebuttal to Robert E. Shalhope's "The Ideological Origins of the Second Amendment," J. Am. of Hist., Dec., 1982. This article by Shalhope is not included by Polsby although another of Shalhope's articles is. Shalhope is a libertarian fantast. In "The Ideological Origins of the Second Amendment" he uses the word libertarian nineteen times. Cress is a objective, intellectually honest historian. He rejects Shalhope's argument with: "A well-regulated militia drawn from the community's propertied yeomen and led by its most prominent citizens preserved liberty; armed individuals threatened it." His article gives the true context of the Second Amendment and is very much out of place on Polsby's list.

Polsby can be sure no one on the committee will read the articles. He wants to overwhelm the committee with the academic verbiage. Polsby is either a charlatan who has not himself read any of the articles he presents or is blatantly dishonest.]

A number of those who have reached the conclusion that there is an individual right to keep and bear arms are, like myself, non- gun-owning non-firearms hobbyist non-members of the NRA. Nor, surely, am I the only one whose opinions on the original understanding of the Second Amendment was turned 180 degrees by a deeper study of a subject than was afforded in the Constitutional Law courses off twenty-five years ago.

It is beyond all rational doubt that, in the view of the Founders, the right to keep and bear arms was an important check on federal power.

[But not a check provided by individuals. The subject is rife with false definitions. Individual right versus collective right is a false definition. "To bear arms" is a false definition. "To bear arms" describes a military function. Soldiers in uniform, on a military campaign, commanded by officers, whether in a regular army or a militia, bear arms. Private individuals target shooting, hunting deer, in an act of self-defense do not bear arms. Police officers in uniform and on a beat do not bear arms. To bear arms against means to wage war against. The Constitution denies even states the right to wage war.]

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The purpose of an armed population was to guarantee that the central government could not possess a monopoly of force and to assure that citizens would have the wherewithal to defend themselves and their communities from tyrants and wrongdoers.

[In Federalist Paper No. 46 and in Federalist Paper No. 28, James Madison and Alexander Hamilton were very clear that the defense against central government would be provided by the states not private individuals.

Does Polsby's "armed population" consent to be governed? Does it give political obligation to sovereign political community? If he wants to redefine the concept of sovereignty he will have to give it more attention than this.]

To the extent that "original intentions" govern constitution law, there is little more to be said. The existence of two important constitutional norm [sic] is thus established, one that focuses on the moral personality of individuals (i.e., people should have a right to defend themselves with arms)

[Citizens enter political community to secure their unalienable individual rights as the first act of self-defense. Outside of political community they only have the rights they can defend by themselves. Polsby starts this point starts with the unstated premise that any laws that touch guns are a ban and deprive an individual of any right to self-defense. The gun lobby uses this argument to demagogic appeal to defeat legislation because it cannot win the right to be armed outside of the law in court. Shalhope above made the same case and he was contradicted by Cress who gave the historical evidence that no such right was part of the consciousness of eighteenth century. Gun ownership for self-defense is very different from gun ownership outside of accountability to public authority.]

and one that focuses on the supposed bad tendencies of government (which would by assumption be deterred and moderated if deprived of a monopoly of legal force.)

[The consciousness of the Federalist Papers was clearly that the monopoly on legal force was shared between state and federal government not between private individuals and any and all government. This separation became irrelevant after 1865.]

The question for today is how those norms ought to work out into contemporary law. One of the byproducts of denying the current relevance of the Second Amendment has been that we have not had nuanced pubic conversations about the keeping and bearing of arms analogous to those on the subject of the freedom of speech, the right of assembly, the freedom of religion, or almost all of the other subjects of the Bill of Rights. Thus, apart from a failure adequately to consider the propositions of moral philosophy and political science that undergird the right to keep and bear arms, several important technical legal issues continue to be essentially unresolved. For example, there remains outstanding the question of incorporation— whether the Fourteenth Amendment makes the Second Amendment operative as against the states, as all of the rest of the Bill of Rights is understood to be.

[If Polsby wants the Second Amendment to be incorporated into Fourteenth Amendment he should be arguing in court not in the legislature].

Quincy v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), probably the most important of the cases to consider the matter, rests on the answer to this question neither on argument no analysis of the right, but rather on the authority of a [sic] old Supreme Court case, Presser v. Illinois, 116 US 252 (1886), that was decided many years before the "incorporation" doctrine was conceived.

Like all constitutional rights, the right to keep and bear arms is subject to reasonable regulation consistent with its purposes.

[Polsby is hedging on his unstated premise that rules and regulations are a ban.]

But what standard of scrutiny should courts employ in judging gun control laws? "Strict"? "Intermediate?" "Rational basis"? "Rational basis with teeth?" Irrespective of what one calls a standard of scrutiny, the underlying substance of reasonable regulation— the thing that makes a given regulation reasonable or unreasonable— is factual. A very few naive intentionalists to one side, virtually no contemporary constitution scholar would pretend that one could decide a case without knowing (or assuming) the facts of the dispute or facts that might be expected to follow from a decision one way or the other. For example, the First Amendment theory embodied in the Pentagon Papers Case (New York Times Co. v. United States, 403 U.S. 713 (1971)) could not soberly be defended (most constitutional theorists would say) if its results lead straightway to the downfall of civilization as we know it.

[The Nazi Party's "armed citizen guerrillas" acting out exactly the doctrine Polsby defends nearly succeeded in bringing down civilization in the last century.]

Similarly, the facts about firearms— how they are used and how abused, what good and what harms follows from their relatively easy availability and wide diffusion in the population— ought to matter to now one interprets the Second Amendment.

In connection with this question, the noise has been so shrill and melodramatic that it has been difficult to hear oneself think. So much misinformation has been put about concerning trends in crime and violent crime and the concurrent role of firearms that members of the public are essentially lost when it comes to evaluating both the claims about firearms and violence and the nostrums that have been proposed to deal with them. A few examples follow, based on the experience of Chicago, where published homicide and firearms statistics are kept more carefully than almost anywhere in the world.

[None of these examples makes the case for extralegal gun ownership or maintaining extralegal armed force.]

The myth: Assault weapons have become the "weapons of choice among drug dealers." The fact: in 1992, rifles and shotguns of all kinds accounted for 27 of Chicago's 940 murders, about 25%. According to Chicago police, during the past three years only three murders (out of about 2500) were committed with assault weapons. Source: Chicago Tribune, July 7, 1994, section 2, page 1, column 4).

The myth: most murders involve friends or family member. The fact: in 1992, intrafamilial homicides, with and without firearms, represented 69 of 940 murders— about 75%. Friends, neighbors and friends of friends and relatives, added 73 more. By far the largest categories were non-friend acquaintances (252) and "relationship not established" (344)— in other words, overwhelmingly, gang violence and the random (and hence untraceable) acts of criminals. (The numbers for 1993 (and other recent years) are comparable.)

The myth: "The overwhelming majority of people who shoot to kill are not convicted felons; in fact most would be considered law-abiding citizens prior to their pulling the trigger." [Webster, Chaulk, Teret & Wintemute, Reducing Firearms Injuries, Issues in Science & Technology, Spring 1991, at page 73.] The fact: in 1992, 72.4% of murder perpetrators and 65.5% of victims had criminal histories. In 1993, the numbers were 71.7% of perpetrators and 59.3% of victims.

National data can be equally eye-opening. For Example:

The myth: Guns turn ordinary law abiding people into ticking time-bombs. "Take a successful businessman who ordinarily has complete control of his emotions. If you stick a gun in his hand when he is under stress, the feeling of power can become overwhelming. This man becomes fearless. He is a different person, and his otherwise good judgment may suddenly desert him. At any moment, this killer personality can present a danger to his wife and loved ones." (Joseph D. McNamara, Safe and Sane, page 67 (1984)). The fact: Though the stock of handguns in private hands has increased by two-thirds in recent years, rates of spousal homicide have been stable or falling during that period of time. (James A. Mercy and Linda E. Salzman, Fatal Violence Among Spouses in the United States, 1979-1985, 79 American Journal of Public Health. 595 (1989)). Though the national murder rate has fluctuated considerably during the past fifteen years, and has recently been approaching the very high rates of the late 1970's, proportion of homicides that represent what is usually called manslaughter— killings provoked in the course of arguments, and thus to some degree impulsive— has been markedly declining. That category represents 40% of homicides in 1980 and 32% in 1991. (Statistical Abstract of the United States 1993 National Data Book, page 195, table 304.)

No one doubts that we have a serious problem with guns and crime in American society, but the inference that the guns are out there causing the crime is specious. The ready availability of weapons does not appear to be an important cause of crime. When I was growing up in the 1950s— some people in this room will remember this— for ten to a few hundred bucks you could mail order Army surplus .45 automatics, German Lugars, high-powered rifles, trench mortars— bazookas, even if I rightly recollect— ammunition, anything you need to start a war;

[He does not rightly recollect and he discredits his legal competence. Trench mortar, bazookas, most weapons needed to start a war are regulated by the National Firearms Act of 1934.]

and all you had to do was check a box that said "I am 21 years old or older." In those days, we had crime rates, and murder rates, much lower than those today— and one never heard of a crime committed with a trench mortar or a bazooka, though there must have been (and there may still be) man thousands of them around in private hands.

Without question murder and other violent crimes are at unacceptably high levels in this country, but the evil has got sharply worse only very locally in national statistics. The country as a whole has been getting noticeably more law-abiding and less violent for fifteen or so years—

[Is this his opinion or does he have some corroborating sources]

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even as its stock of privately owned firearms has burgeoned. The margin— the part of the problem that is definitely changing for the worse— is the murder part— intentional murder and felony murder. Even these numbers are not changing globally or evenly. Indeed, the rates of homicide for both white and African-American populations as a whole has been in a secular decline over the past fifteen years.

But the violent crime statistics of younger adolescent boys have been getting dramatically worse. The rates of both delinquency and victimization for twelve-to-fifteen years old boys used to resemble that of their parent's age cohort. Now there behavior seems more nearly to resemble that of their older brothers, young men in their late teens and twenties, who are always the most at- risk part of the population. Though matters have been deteriorating somewhat across race lines, the numbers that really jump out of the Statistical Abstract Data Book in are the homicide mortality rates— that is, rates of victimization— for African-American young men ages fifteen through 35, which have gotten two to two-and-one-half time worse just in the past decade, and now stand, on a national basis, at near one in one- thousand— ten times worse than the statistic for the whole population.

The conventional reading of this experience is that we have a supply side problem. "There are too many guns out there," has been the refrain of innumerable public officials and political activists (I found almost 1000 hits on Nexis). Most gun control laws have been aimed at reducing the supply of firearms. by placing time taxes or money taxes or stigma taxes on them, or banning certain supposedly "bad" guns altogether (for example, handguns or "Saturday night specials" or "assault rifles"). Unfortunately, such strategies are only as good as the assumption they are based on. And that assumption— that there are "too many guns" or that certain guns are especially "bad"— unfounded.

The number of firearms is not fixed or finite, and there is little that Congress can do about that. in the presence of strong demand, supplies find way of appearing. The problem of firearms is a demand side problem, and in order to do something about the factors in the equation that are definitely getting worse, on must understand why young men are demanding guns when they never did before, what they do with them, and what can be done to induce them to act responsibly with firearms. These are subject for another day, but they lie at the heart of darkness.

Everyone appreciates that firearms are a part of the problem when in the wrong hands. But it is also widely accepted that they are a part of the solution when in the right hands— this is, after all, the main theory behind the "100,000 extra cops" provision in last year's crime bill. Regulatory regimes that fail to respect the distinction between the "right" hands and the "wrong" hands are bound to fail and thereby aggravate an already bad situation.

[The only way the difference between "right" hands and "wrong" hands can be meaningful is to establish legal categories of gun ownership. Gun owners enter political community and institute government to secure their unalienable rights but they have to consent to be governed by laws. Legal categories of gun ownership are the means to remove guns from the lawless and the disloyal— that is, the NRA's "armed citizen guerrillas". That is how citizens defend themselves.]

But what is worse, they are bound to affront the rule, applied elsewhere in constitutional law (see, e.g., O'Brien v. United States, 391 US 367 (1968)) that legal burdens on a constitutional right must be no broader than necessary to realize a substantial government purpose,

[Defending itself from "armed citizen guerrillas" is a substantial government purpose.]

and must be incidental— which is to say, inspired by some purpose other than antipathy toward the underlying constitutional norm.

[Extralegal gun ownership is not a constitutional norm.]

To be sure, the Second Amendment and the values it stands for are a great embarrassment— Professor Levinson's word

Professor Levinson is a certified advocate of anarchy

— to most of America's cultural elite.

[Now we have arrived at the culture war between the pro-gun culture and anti-gun culture. This is where the gun lobby wants this subject to stay. It becomes no longer a matter of law or legal purpose but is now a matter of feelings attitude. See Heston 12/7/97.]

Be that as it may, the right to keep and bear arms is a legitimate, full-fledged part of the Bill of Rights.

[It true legacy is found in the Selective Service Acts of the twentieth century. If Polsby has a different interpretation he should be making his case before a court not before a legislative committee.]

Because the authority of this body derives exclusively from the Constitution, its members are not at liberty to address the question of gun control as though there were no Second Amendment.

[A legislature is at liberty to pass any absurd law it wants. The coequal judiciary branch of government decides on constitutionality.]


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