The Potowmack Institute

Taking up the Second Amendment

G. Eyclesheimer Ernst

(Refused publication by the Christian Science Monitor. Orwell's "all pervasive orthodoxy" at work. Submitted May, 1995.)

Potowmack Institute
asamicus curiae in
US v Emerson (1999)

The National Rifle Association
What does the NRA 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

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

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

Militia Act, 1792
Mass. Militia Act, 1793

Whittaker Chambers
Reviews Ayn Rand

National Review, 1957


The issue has been raised that we need a discussion on the real meaning of the Second Amendment. Sanford Levinson, professor of law, University of Texas, has been quoted (Christian Science Monitor, 5/1, p. 18) that genuine discussion "is more crucial than ever." We need a discussion, but what is crucial is getting the issue right. We can start with Levinson himself.

For decades the gun lobby has defined gun rights not only by proclaiming a constitutional right but reading into the constitutional right a doctrine of political liberty that privately armed individuals, called the "sedentary" or "unorganized" militia, constitute a barrier against tyrannical government. Sue Wimmershoff-Caplan, a member of the NRA's National Board, put it in "The Founders and the AK-47," Washington Post, July 6, 1989: "Twentieth century military machines are far from invincible when outflanked by armed citizen guerrillas."

The gun lobby has embraced Levinson as high intellectual authority for its doctrine. In "The Embarrassing Second Amendment," Yale Law Journal, 1989, Levinson refers to Wimmmershoff-Caplan with approval. He complains, "the Supreme Court has almost shamelessly refused to discuss the issue." The discussion, which Levinson seeks, has in fact already been held in federal court. The gun lobby likes to point out that the only time the Supreme Court heard a Second Amendment case was US v. Miller (1939) and the decision is inconclusive. By a shallow reading, it is. Constitutional doctrine, however, has been formulated subsequent to Miller by lower federal courts. The most comprehensive Second Amendment case is US v Francis J. Warin (1976). The Second Amendment Foundation's amicus curiae brief in this case asserts "a basic right of freemen to take up arms to defeat an oppressive government." The US Court of Appeals, Sixth Circuit, explicitly rejected an individual right, Ninth Amendment unenumerated right, and legal status for the "sedentary" militia. The Supreme Court has let this and other Second Amendment rulings stand. If the Supreme Court finds a law requiring a parade permit a tolerable abridgment of the First Amendment right of the people peaceably to assemble, it is not going to find intolerable a law regulating assembly under arms.

Defeated in the courts the gun lobby has to have its doctrine by defeating legislation. To defeat legislation it has to achieve respectability for its doctrine. Levinson denies any intent to "solicit membership for the National Rifle Association," but shamelessly provides the gun lobby respectability.

Levinson quotes ". . . the advantage of being armed . . ." from James Madison's Federalist Paper No. 46, the most ubiquitous words to prove the Founders' intent. In his recent book, Guns, Crime and Freedom, the NRA's Wayne LaPierre cites these words twice (p. 8, 17). LaPierre lists 32 law review articles to support his case. At least 13 of the articles, including Levinson's, quote these words. Levinson adds, "The advantage in question was not merely a defense of American borders. . . Rather, an armed public was advantageous in protecting political liberty."

Well, not exactly. In fuller context, Madison wrote, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of [federal] ambition." The words refer to a balance of power between state and federal government not "armed citizen guerrillas" and any and all government. Levinson insists, "I am not an anarchist," but what he reads into Madison's words is, in fact, anarchy.

He gets more explicit: ". . . the citizenry itself can be viewed as an important third component of republican governance insofar as it stands ready to defend republican liberty against the depredations of [state and federal government]." To perform this function the citizenry has to be armed outside of the rule of law. Levinson finds it "foolhardy to assume that the armed state will necessarily be benevolent," but implicitly accepts the self-proclaimed benevolent intentions of citizen militias. The capacity to exercise armed force is a malignancy wherever we find it. To be armed outside of the law is to be armed above the law. There is no conceptual difference between Levinson's armed citizenry, the NRA's "armed citizen guerrillas," the Nazi Party's Stormtroopers, and extralegal armed force maintained by the Ku Klux Klan, Black Panthers, Puerto Rican Nationalists, and organized crime: We become at war with each other.

When we put ourselves under the laws of this government, the exercise of armed force, separated from simple gun ownership, is authorized by law and ultimately accountable to the people through democratic processes. Armed force defines sovereignty. Lincoln put it in his first Inaugural, "A majority held in restraint by constitutional checks . . . is the only true sovereign of a free people." The other choices are anarchy and despotism.

The most positive result that can come out of the Oklahoma City bombing is a conceptual basis for addressing gun violence. Gun violence, as much as citizen militias, is a direct consequence of the gun lobby's doctrine. Addressing gun violence means bringing gun ownership under the rule of law which means accountability of firearm ownership— that is, specifically, registration of ownership. Registration of ownership would provide the basis for establishing, through political processes, legal categories for gun ownership that can effectively remove guns from the lawless and the disloyal.

Levinson and the NRA have a doctrine. The crucial discussion has to give them a crucial message: When the rest of us see "armed citizen guerrillas," we call, "911."

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