HOMEPAGE

This unreviewed manuscript is directed at business interests and their dependence on a stable legal order that derives from a stable political order. It was submitted to the Harvard Business Review in early 2015. No response.

Gun, Rights, and the Sovereign State

The business community has to have a claim of responsibility for the life of the Republic. There is a burden of historic responsibility. Responsibility begins with knowledge and conviction. There are some things we need to get right first.

Start here: The Constitution is a frame of government with "just powers" that derive from "the consent of the governed" (Dec. of Ind.). It is not a treaty among sovereign individuals who give no more than word of honor and promise of good faith (FP 33). John Locke's The Second Treatise on Civil Government was very familiar to the Founding generation. They understood from Locke that there is a difference between Political Community and the State of Nature which is the state of anarchy (Locke, 94). The oath of public office marks the difference. If we have problems now, it is because we have lost our way. The greatest political danger is a government that does not understand what it means to be a government.

The Armed Populace at Large

Businesses have to function in an environment of "established, settled, known law". The words come from John Locke Locke, Sec. 123 The law takes its certainty from the sovereignty of the state, a creature of fundamental law that is, the creature of a constitution. A frame of government implies much. The rule of law, the state's internal sovereignty, and the state's monopoly on violence all mean the same thing. What is at issue is the constitutional, political middle. A government is sovereign. This is not left/right, liberal/conservative, Democrat/Republican, libertarian/socialist.
What the gun rights militants want, what the National Rifle Association argued to the Supreme Court in its amicus brief in Perpich et al. v. DOD (released 1990), brings established, known, settled law and the sovereignty of the state into question. There is no secret. What the gun rights militants want is the right to maintain the militia as the "armed populace at large,". a collection of sovereign individuals who made a treaty not a government (A. Hamilton, FP33). The immediate questions arise: Are they citizens bound by law? Do they consent to governed? Give just powers to government? Are they registered for "militia service if called up"?. Or, are they individual sovereigns in the State of Nature outside of any governing authority.
A bill of rights, separation of powers, regular elections are restraints on sovereignty. Sovereignty is, nevertheless, absolute. The "armed populace at large"— also known as "armed citizen guerrillas" — is a rival sovereignty. There can be no rival sovereignty.
The rival sovereigns' core doctrine demands a right to be armed outside of the knowledge and reach of a governing authority, a right that denies the very legitimacy of a governing authority. It is a right with anarchic, insurrectionist and treasonous implications. It is a right that reduces the Constitution from a frame of government to, at best, a treaty among sovereign individuals, at worst, a whimsical notion. It is a right that can never be had under any viable concept of constitutional government. It is a right we have as long as we do not exercise it— that is, not a right at all but the fantasy of a right. The right claimed is no less than a childish political fantasy. It is nevertheless a right widely believed as an article of faith and assiduously maintained through demagoguery regardless of historic fact and the opinions of the courts. The business community spends millions for security to accommodate to a childish political fantasy. One of the great mysteries of this story is that the business community has not demanded an effective, constitutionally permissible firearms policy. When the business community wants something, it will have it.
The opportunity goes back to Perpich. In Perpich the NRA was on the right side of the issue with regard to the National Guard. With regard to the militia, it was a nice try but the Supreme Court ignored the point. The Supreme Court, reprehensibly, passed up the opportunity to repudiate the anarchic doctrine once and for all time.
The "armed populace at large", nevertheless, has not fared well in the courts. Where everyone else fails is, first, to understand the what "armed populace at large" is. The one point of policy the "armed populace at large," a collection of sovereign individuals, cannot accommodate is accountability to a governing authority. Accountability means specifically registration of gun ownership. Registration is the only way guns can be effectively regulated. The constitutional authority for registration is right there in the militia clauses of the Constitution, the Second Amendment (properly understood), and the opinions of the courts.
In Parker et al. v. DC Gov. (filed in US District Court, DC Circuit, February, 2003; Released US Court of Appeals, DC Circuit, March, 2007) after many pages in which the highly politicized Judge Silberman tried to disparage the original civic purpose in gun ownership and invent out of the shadows of the Constitution a libertarian privacy right to gun ownership, he, in the end, completely contradicted himself and arrived at the conclusion that we can have "registration. . . for militia service if called up". That conclusion is the original civic purpose.
What is important is that Judge Silberman's conclusion is a devastating defeat for the gun lobby's core doctrine. There is nothing in subsequent Supreme Court rulings that overturns his conclusion. Federal judges are under oath of public office. The Constitution is still a frame of government. What is missing is the political leadership to exploit the core doctrine's devastating defeat.
The core doctrine cannot accommodate registration. Registration is what the NRA works hardest to defeat. The NRA's Wayne LaPierre proclaims loudly and demagogically that there are only two purposes to registration: confiscation and taxation. No, there is a third purpose, the original purpose, a very unlibertarian purpose, which Judge Silberman has rediscovered and resurrected: conscription, a military obligation, a coerced civic obligation. It is on civic obligation, military preparedness, and conscription that the libertarian privacy right meets its fateful opposition. The constitutional functions of the militia— conscript duty, mind you— were to enforce the laws of the Union, repel invasions and suppress insurrections (not make them). The conscript state militias were an instrument of government. They maintained public order and provided for the security of the state.
The Militia Act of 1792 written and enacted by the same people who wrote and ratified the Second Amendment, was a conscription law— albeit, state enforced not federally enforced— carried forward from colonial practices. There are no libertarian privacy rights in a conscript military organization. The Militia Act required gun ownership, required that state militia officers maintain inventories, called "Return of Militia", of privately owned weapons once acquired, and report them to the state governors and the president of the United States who in turn reported them to the Congress. The operating concept was civic obligation. The purpose was military preparedness. Absolutely no one then objected to the inventory requirement. No one objected when privately owned militia weapons were requisitioned for the regular forces
Conscription when public necessity demands is essential to the ultimate power of the state to defend the state in war. Judge Silberman has left open the ultimate "just powers" of government. The Selective Service Act of 1917 was a public necessity. The United States was at war. National conscription was a radical departure from the original design of state based conscription. It was part of the evolution of the United States into a modern nation state capable of performing on the world stages as a great power. If there were a public necessity now for state or national conscription, the legislatures would act as they have in the past and the whole issue would be blown away.
Short of war, conscription can mean military preparedness. The consent to be governed has serious consequences for private gun ownership as the Militia Act of 1792 makes clear. We were not at war in 1792, but the principle of military preparedness still applied.
In also applied in 1940. In his acceptance address to the Democratic Party Convention, Roosevelt said:

That was a year and half before Pearl Harbor. The Selective Service Act of 1940 passed the House by one vote. (Our history books tells us it was our first peace time draft. Not exactly. It was our first national peace time draft. The first peace time draft was the Militia Act of 1792, enforced by the states.) Try that now in an election season. The public necessity in 1940 was military preparedness. Military preparedness can be the basis of policy now when we change the rationale from "gun safety" to civic obligation.

Is there a rationale for a "right of the people" to take up arms to defeat an oppressive government? There certainly is, but it is not a civil right secured by government. It is a right in the State of Nature outside of civil society. Revolutionary treason becomes possible only when there is a critical mass (not necessarily a majority) to support it.
Treason becomes patriotism only when the treason is successful. Witness the Declaration of Independence. The king cried "treason"

A National Firearms Policy

It is Judge Silberman who has explicitly opened the path for policy. The only business of the Federal Government in firearms policy is to control and shut down the illegal traffic between and among jurisdictions. That can only be accomplished by registration and reporting of private sales. Firearms policy can begin by giving them their hearts' desire. Search "Firearms Freedom Act": "...the FFA declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional powers [commerce clause] to regulate commerce among the states". What about the militia clauses? Another objective can be achieved. To the states: You keep your guns within your boundaries and the Federal Government will leave you alone. If not, the Federal Government will invade your space and do it for you. That is empowerment policy for local jurisdictions. Let the state and local governing bodies fight out the details. A policy can allow for wide local variation— and, it is all in the interests of deregulation and returning power to the states. The supreme law of the land still resides in the Federal Government.
The NRA's Wayne LaPierre leaves out conscription. NRA president Chris Cox, however, goes a step further:

No. It is right there in the original design and intent of the Militia Act of 1792. Military preparedness can be the purpose for policy now.

In an accommodation to Chris Cox, there doesn't need to be a federal registry. The Federal Government does not even need to go door to door registering guns if the states fail. It has other leverage powers over state and local jurisdictions.
In the present circumstance the need is almost completely nonexistent that the Federal Government would ever call out the militia, but if so it would have access to the state registries. If the NRA's "armed citizen guerrillas" see the dark cloud of totalitarian tyranny coming over the horizon, they can always take their guns and head for the hills. The states would still have powers of conscription.
With all respects to FDR's Attorney General Homer Cummings who pushed the National Firearms Act of 1934 through Congress, the constitutional authority for a national firearms policy is not the much overused commerce clause but the militia clauses of the Constitution and Second Amendment (properly understood) and how the basic concepts of civic obligation and military preparedness were manifest in the Militia Act of 1792.
There is a rough precedent for this kind of policy. During the Civil War there was a national conscription law, but, because the draft was so unpopular (and produced the worst civil disturbances in American history), it was never vigorously enforced. It was used as a threat against the states: You deliver your quotas to the Union Army or the Union government will invade your space and do it for you. The states delivered their quotas.

Securing— Or, Inventing— Or, Imagining— a Constitutional Right

The NRA calls itself the oldest civil rights organization. It is also the least successful. Civil rights are secured by opinions of the courts and enforced by court orders— that is, by guys with guns. The armed populace doctrine cannot succeed. It is not within the legitimate powers of the judiciary to reduce the Constitution from a frame of government to a treaty among sovereign individuals. The NRA argued the gun rights militants' case only once in Perpich and failed. That was an amicus brief not a suit filed to challenge any enacted law.
The NRA does not want gun rights cases it does not control in court. It worked hard and unsuccessfully to control and sabotage the true believing Cato lawyers' pursuit of Parker.
The gun rights militants, led by the NRA, will have the doctrine anyway by defeating legislation. The NRA defeats legislation with demagoguery. We do not secure civil rights enumerated in the Bill of Rights by defeating legislation. The armed populace doctrine succeeds because everyone else fails. The demagoguery makes for much cynical, small-minded, obstructionist politics. Any hint of a deviation from the core doctrine has to be viciously attacked. Without constitutional protection, the whole fallacious constitutional facade might come crashing down.
At present the greatest demagogic appeal is to individual self-defense. It is a false argument. The way we defend ourselves as citizens under law and government is to apply the law against the lawless. That is the reason we have law and government. At the same time, there is no conflict in principle between accountability to a governing authority and individual self-defense. The only reason we cannot have laws that apply against the lawless is that gun rights militants, led by the NRA, work very hard and successfully to defeat any laws that would apply against the lawless because the same laws would apply against the NRA's "armed citizen guerrillas" and others with insurrectionist fantasies.
To further the appeal, the demagoguery invents a new history which is widely believed even by people who should know better. The demagogues possess the words and give them new meaning. The most ubiquitous words to invent a new history are "the advantage of being armed" from Federalist Paper No. 46 When people with college educations, including tenured academics and federal judges, read these words in full context and insist that they mean the very opposite of what they plainly say, we are in a different state of political life. The Second Amendment becomes an article of faith. True belief is not concerned with objective fact. This is who we are. The courts can change the law. They cannot change history. Historic fact is still historic fact.
Here it is: The gun lobby has invented a whole preposterous, anarchic, insurrectionist, treasonous doctrine of political liberty largely (but hardly exclusively) out of words lifted out of context from this one passage. Regardless of what the NRA, a host of gun lobby/libertarian pseudoscholars, the "rabidly antigun Washington Post", NPR's Diane Rehm, and a growing number of anarchic federal judges would have us believe, James Madison in Federalist Paper No. 46 was not describing a civil right of private individuals. The issue was military federalism— a federalism which today is anachronistic and irrelevant.
The larger context of the Second Amendment is still relevant. It is the republican "right of the people" to participate in the military functions of the state as conscript citizen soldiers, fulfilling a civic obligation, rather than leave those functions up to a mercenary army whether the British Army recently removed or the US Army which as created in the Constitution was explicitly, in the consciousness of the 1780s, modeled after the British Army.
The great apprehension at the time was over an untried supergovernment with a mercenary army at its disposal. It is very far removed from public knowledge, but the Second Amendment only makes sense in those eighteenth century terms. The conscript state militias died a natural death in the early Republic because, unlike in the British Constitution, they served no theoretical purpose, because no one wanted them, and because the US Army did not become an instrument of political intrigue reminiscent of Oliver Cromwell. The original antagonistic relationship between the conscript state militias and the mercenary US Army was combined in the twentieth century selective service acts. The US Army became in a sense a national militia. The United States became a modern nation state.
It is very troubling when we become less than a state at all. The "armed populace at large," as invented history, has made its way into the federal courts. Judge Reinhardt set the record straight on Federalist Paper 46, out of which the "armed populace at large" is primarily fabricated, in footnote 41 of Silveira v. Lockyear (released, 2003, Ninth Circuit):

James Madison's real meaning in Federal Paper No. 46 is not addressed by the Supreme Court leaving the conflict in the lower courts on the meaning of words unresolved, but more to the point:

Silveiva was appealed to the Ninth Circuit en banc and rejected for further review upholding Judge Reinhardt's interpretation. Judge Kleinfeld with concurrence of Judges Kozinsky, O'Scannlain, and Nelson in dissent to a denial of an en banc rehearing of Silveira asserted:

That is, the "armed populace at large". This anarchic assertion is not addressed by the Supreme Court either. There is no end to the invention, more than can be detailed here, of a new history.
Of course, nevertheless, what Judge Silberman has concluded in Parker settles the issue for policy making purposes. All that is missing is political leadership. Instead there is more demagoguery which proceeds without opposition.
Demagoguery goes far and wide in the present political culture. In the early weeks of 2012 "conservatism" was outlined under the title "The Conservative Tradition in America" in series of thirteen lectures at Citadel Military Academy— of all places (Search "Citadel conservative lectures"). In one lecture David Keene, then president of the NRA (now op/ed page editor of the Washington Times), said nothing about the NRA's anarchic, insurrectionist, treasonous doctrine but devoted himself to describing how William F. Buckley created the "conservative movement" in the 1950s. Keene wants to place himself and National Rifle Association right in the mainstream middle of the "conservative" movement and culture.
According to Keene, Buckley wanted his "movement" to be respectable. He excluded the "crazies" (Keene's word) without ever adequately explaining how their "conservatism" differed from his: the John Birch Society, the Ayn Rand Objectivists, the racists, and the radical libertarians. However, the NRA is crazier than the "crazies". Buckley's "crazies", including even most radical libertarians, accept in some twisted, qualified sense the legitimacy of a governing authority. The NRA's ideologue Stephen Halbrook describes the NRA ideology as being "akin to radical libertarianism" (That Every Man Be Armed, p. 197). Halbrook's radical libertarians— the "armed populace at large"— are individual sovereigns in the State of Nature which is the state of anarchy. They make treaties not governments. His radical libertarians— and the NRA's— do not accept the legitimacy of a governing authority. Halbrook— and the NRA— accept no meaningful notion of civic obligation. The others in the lecture series made no objection to Keene's presence and made no demands on Keene to explain just how akin is his doctrine— the NRA's doctrine— to Halbook's anarchy. There are no demands that he explain the fallacious fabrication of the gun lobby's anarchic doctrine or what purposes the doctrine serves. This is all part of the same story.

Where We Are

This is not for soft heads and the faint of heart. Will the gun lobby leadership propose an effective national firearms policy consistent with historic fact, viable ordered liberty, civic obligation, and what the courts have decided? Never happen. If not the leadership, then will the gun lobby membership find an independent path? Never happen.
Regardless, as objective policy making, this is the easy one, much easier than, for example, the accomplishments of the civil rights movement. Here, no one has to give up anything anyone has in constitutional doctrine to begin with. But, will we have a national firearms policy? The questions really are, Will we have political leadership? Will we have an enlightened citizenry? Do we know who we are as a political community? So far the record is not good.
Prominent in the record and very representative of the state of the political culture is that the DC government had everything it needed in the Parker case to launch a campaign for a national firearms policy. Instead, it defended its thirty-year-old, failed, unenforceable, counter-productive gun law all the way to the Supreme Court— and, oblivious to its own purposes, nevertheless won a case against the gun lobby's core doctrine. But, it will be more business as usual. Nothing ever changes. Someone has to lead them to where they want to be. The leadership has been that the gun controllers and the Obama Administration cannot get much past promoting "gun safety", an expanded version of the trigger lock agenda. The contours of citizenship under constitutional government are a forbidden topic. The consequences are in the daily news.
Will the business community with much at stake enter the political arena and assume a burden of historic responsibility? It won't be an easy struggle and change will not happen quickly, but it can happen with conviction and knowledge. Along the way me might get— should make it a primary objective to get— serious, constructive public discourse on fundamental concepts more elevated and substantive than soundbite demagoguery, bumper sticker slogans, and the mindless drivel of culture war politics. We might just have a national civic lesson on who we are and what we are doing here.

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