The Potowmack Institute
asamicus curiae in
US v Emerson (1999)
The Rule of Law
The National Rifle Association
What does the NRA really want?
The National Rifle Association
Charlton Heston Speaks:
The Founders and the AK47
The NRA's "armed citizen guerrillas" "outflank", Wash. Post 7/6/89
The Washington Post
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
"Palladium of the Liberties"
The Second Amendment in Court
John Kenneth Rowland
LaPierre's List and the Law Reviews
Militia Act, 1792
Mass. Militia Act, 1793
Reviews Ayn Rand
National Review, 1957
|The paper below was submitted as a draft
to The Responsive Community, the journal of the Communitarian
Network founded and headed by Amitai Etzioni of George Washington University in
Washington, DC. The paper would have had to be cut by as much as
twenty percent for publication. It is included here in full
length. The length was for the benefit of twenty endorsers of
Reponsive Communitarian Platform who were sent the draft for
comments. Only two responded. This is serious business. The
refusal of The Responsive Community to take up the issues
raised in the submission raises doubts about the level of its
consciousness. There are many sincere people in the present
political environment with whimsical notions and no conceptual
foundations or practical strategy for what they want to accomplish.
The Communitarian Network advocates a general goal of civilian
disarmament without any appreciation of what that would involve.
The absence of
response from the endorsers of the Platform raises doubts about
their engagement on the fundamental political issues which they
should be on top of. At the time of the American Revolution the
issues raised in the paper below were actively debated at every
level of society. Fundamental issues of law, government, public
authority and the contours of citizenship come up periodically
for renewals and reaffirmation. They are up again now. We ignore
them at out peril. In our present circumstance if we ignore them
there are others with a malignant agenda who will prevail. The
libertarian right knows what it wants.
Dear Mr. Doherty:
I have received your letter of January 8th stating that you will not publish my submission, "Guns, Crime, the Libertarian Fantasy, and the Rule of Law." I wish there was some indication that you had actually read the submission. The submission raises very serious fundamental issues that go to the heart of what the Communitarian Network is all about. The submission was an opportunity for the Communitarian Network to define itself and fulfill its intent to engage in a on-going dialogue. Instead, the failure to appreciate the content provides an another example to the Firearms Policy Journal of the state of the political culture.
I did not discover the Responsive Communitarian Platform on the Internet until after I wrote the submission. I would have wanted to revise the submission to address the Platform. Fundamental political issues are never settled once and for all. They are always up for renewal. They are up for renewal now. The Communitarian Network has chosen not to be engaged. I sent the submission to twenty of the Platform's 101 endorsers. Only two have responded.
The Platform's paragraph on gun violence is illustrative:
This is a whimsical statement that offers no specifics or strategy and exhibits no conceptual foundations for what you want to accomplish. The same deficiency haunts the whole Responsive Communitarian Platform, a collection of nice ideas on which few would disagree.
There are some things we have to get right first. The first institution of civil society is not the family but the state. The family is the first institution of natural society. Aristotle described the state a few millennia ago as an aggregation of families and kinships but with a higher purpose. Hobbes and Locke in the seventeenth century described the same formation starting with individuals. A family or individual is tangible. The state involves an abstraction. The state is where resides ultimate political authority or sovereign power. It is not another coequal among the many communities that make up civil society. By creating a sovereign power members of political community agree first that they are not at war with each other. The modern concept of sovereignty is the capacity to give law and command obedience to law, a simple concept five hundred years in the making. It is the unitary principle of political organization. It is the basis of public trust which inheres in the civic consciousness of individual citizens and allows the intermediary communities of civil society to flourish. If you have a different unitary principle for political organization, let us see it. If you have no unitary principle, there are now other aggressive forces with an agenda who will have their way and absorb you. Without agreement on sovereign public authority there is nothing between the libertarians' "random individual choice" (anarchy) and authoritarians' "government control" (absolutism). All these themes are touched on in the submission. The whole crisis in gun violence is a crisis in public trust that turns on the accountability of gun owners to sovereign public authority. It is not about guns: it is about citizenship.
Your reflexive, categorical dismissal without examination of the submission as discussing just another one of those "wide variety of topics" exhibits a deficiency in political consciousness which is very commonplace these days. It should not be this difficult to open minds. The paper will go into the Firearms Policy Journal, introduced by this letter, where it will get more readers. Whatever there is of a self-conscious civil society and political culture will be able to find it there and engage the issues raised. The Communitarian Network is invited to participate.
cc: Amitai Etzioni
Review draft of submission:
G. Eyclesheimer Ernst
In the spring, 1997, The Responsive Community, Zimring and Hawkins offered a critique of the gun lobby's conceal/carry initiatives as crime control on the cheap. In the summer, 1994, Amitai Etzioni discussed gun sweeps in Chicago Housing Projects in terms of a balance between observing rights and attending to the common good. In winter, 1992/93, John DiIulio described personal security in crime ridden innercity neighborhoods as a civil right. This essay seeks to put crime, personal security, gun violence, and gun ownership into the perspective of fundamentals. It is not about guns and crime: it is about the just powers of government, the obligations of citizenship, and the requirements of a viable legal political order.
The long evolution of modern political institutions, borrowing heavily from the concepts inherited from the Ancient World, began with Machiavelli in the sixteenth century. In the Middle Ages sovereignty of town, guild, church, lord and manor had been diffuse and overlapping. Political authority was local, personal, patriarchal and conservative. Obedience, sanctioned by scripture, the Fifth Commandment and St. Paul's order to "obey the powers that be," was the conservative political principle. Rights, if any, were secondary. Machiavelli reintroduced the virtues of the ancient Greek and Roman republics where citizens participated in the institutions and functions of government. Important to these republics was that the citizenry participated in the military functions of the political community as opposed to the more common circumstance where domestic tyrants and foreign conquerors maintained their rule with mercenary or foreign armies.
During the religious wars in France Jean Bodin looked to national monarchy as a new secular basis for authority and order. The serious breach with the conservative past came in the English Civil War and Revolution when Thomas Hobbes and John Locke create the liberal tradition and reversed the order of rights and obligations. Now, individuals were born first in the State of Nature with natural rights. When they entered political community, they gave obligation. The achievement of republican and liberal values in seventeenth century England was abortive. The people in Parliament became sovereign and Parliament established control over the monarchy, but the monarch and royal magistrates still ruled by hereditary entitlement (prerogative). The British Constitution balanced the estates of the realm in what was known as mixed government, mixed among democracy, monarchy, and aristocracy. The people in the House of Commons were the ruled, the monarch was the ruler, and the aristocracy in the House of Lords played a subsequently declining role. Obedience still came first.
John Locke became triumphant in the next century in the American Declaration of Independence: "...all men...are endowed...with certain unalienable rights... That to secure these rights Governments are instituted among men, deriving their just powers from the consent of the governed." Consent nevertheless meant obligation. Hobbes and Locke had little concept of modern institutions of government. Despite his great influence on shaping liberal and republican consciousness in the American Revolution, Locke's strong emphasis on the legislative proved unworkable. Through trial and error over twelve years the American Revolutionaries achieved a major transformation in political concepts. They not only arrived at three co-equal branches of government but government became unmixed. The people apportioned their sovereignty at the same time to state and federal government and to the three branches within each. The ruled became the rulers and the rulers the ruled [The transformation is described in great detail in Gordon Wood, The Creation of the American Republic, 1969]. The obligations of citizenship came to include fulfillment of the responsibilities of self-government.
The great contribution of Hobbes, much maligned for his authoritarianism, was the concept of secular sovereignty and the contours of a legal order. The American Revolutionaries understood the concepts but they did not receive full expression until the next century. John Austin in The Province of Jurisprudence Determined (1831), arguing from Hobbes, wrote:
Max Weber in the Fundamental Concepts of Sociology wrote:
The famous expression "monopoly on violence" originates in this passage. The monopoly on violence in a legal order, however, was presaged in Locke:
The Second Treatise, § 3
The English historian Richard Tawney (1880-1962) exquisitely contrasted law and secular sovereignty in the West with the political culture of China:
(originally published in the Manchester Guardian in 1931, reprinted in the Washington Post, 6/25/89.)
The Libertarian Fantasy
The libertarian fantasy is very simple. It says we reverse the process described by John Locke in The Second Treatise, refuse the consent to be governed, deny "just powers" to government and return to the State of Nature. It is the political force of our time to be reckoned with. Its most important aspect is the economics of the libertarian right. Its most explicit expression is the gun lobby's armed populace doctrine.
"Libertarians & Conservatives", National Review, 1979.
"Libertarianism or Libertinism?", National Review, 1969.
"Libertarian Movement in America", J. of Contemp. Studies, 1983
An introductory overview of libertarian ideologies can be found in Stephen L. Newman's Liberalism at Wits' End: The Libertarian Revolt Against the Modern State (1984). Robert Kuttner provides a recent examination of free market utopianism in Everything For Sale (1996) and Peter Brown in Restoring the Public Trust (1994) uses a critique of Friedman to describe how public trust operates in contrast to libertarian economics. Brown quotes (p. 7) Cato Institute president Edward Crane telling a conference in Moscow in 1990 that the transition to freedom means rejection of the "statism" of both pernicious "communism" and the insidious "mixed economy." The capitalist Right knows what it wants.
Ideas by themselves do not go far without promotion. The National Committee for Responsive Philanthropy's recent report, "Moving a Public Policy Agenda: The Strategic Philanthropy of Conservative Foundations" (July, 1997) [202-387-9177, for a summary and order form], documents how a dozen rightwing foundations have spent 100s of millions in a patient, persistent almost invisible strategy to shape public consciousness since the 1970s. One of the prime movers has been Charles Koch, an oil magnate, who originated politically (according to Newman whose source is "Seducing the Left," Mother Jones, 5/80) in the John Birch Society and who provided the funds to found the Cato Institute. The rightwing foundations, including the Charles Koch Foundation, have funded the rightwing think tanks that are now part of the policy landscape. They have also influenced academic disciplines particularly law but also economics and political science. (Is this the explanation that the more than 2500 panels held at annual conferences of the American Political Science Association from 1993-97 contain not one mention of gun violence even though ultimately it deals with sovereignty, the consent to be governed, and the obligations of citizenship which are the most fundamental concepts of the discipline?)
Rightwing ideologies overlap on free market/laissez- faire/libertarian economics but there are important differences in theory. The biggest is between the no-statists (Murray Rothbard) and the minimum-statists (Milton Friedman, the John Birch Society). The no-statists are ideologically pure but not well connected to reality. No government means no government. All association and obligations are voluntary and there is a private, market place solution for every problem. The reasoning, though pure, gets weird. The strains of rightwing libertarian ideologies lose their internal logical consistency and lose compatibility with each other when they depart from no-statist purity. The John Birch Society, as one example, describes the original American political creation as a "constitutional republic" which implies a conservative regime of property (which it was). It contrasts this to democracy which to Birchers is mob rule, identified as the mixed economy. There is no accommodation to the democratic aspirations of the propertyless industrial working class. The John Birch Society pamphlet "Back To Basics" makes one wonder if a constitutional republic is, in fact, a form of government:
Your congressman has taken an oath to uphold the Constitution. Whenever a new bill comes up for a vote, he should ask himself: Is it Constitutional? If it is unconstitutional, he should vote against it.
And, if it passes anyway the implication is that the citizenry has no obligation to obey, enforcement is tyrannical, and the Second Amendment, as the Speaker of the House has put it, provides a "political right" that protects "individual citizens from their own government." The John Birch Society is completely committed at the same time to a constitutional republic, a form of government, and extralegal armed force, a prescription for anarchy.
The most fundamental concept of the libertarian fantasy is "individual sovereignty" which carries with it the right to secession. Both "individual sovereignty" and the "right to political secession" are planks in the Libertarian Party Platform. These concepts were alien to the Framers of the Constitution. Hamilton wrote in Federalist Paper No. 33, again arguing from Hobbes:
If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. [caps in original]
The American Revolutionaries self-consciously put themselves under government. The libertarians and the gun lobby will reverse the process. The theme recurs. Lincoln put it in his First Inaugural: "The central idea of secession is the essence of anarchy." What was anarchy for states then is no less anarchy for individuals now.
The capitalist right discovered in the 1960s that it could divide
the American working class, that had created the New Deal, on
race and culture and get it to vote against its class interests,
but the appeal of the libertarian fantasy is much broader than to
race, culture and rightwing economic interests. It reflects a
demoralized public mood that has emerged among intellectuals.
Newman calls it a "defeatist retreat from political life."
Psychic need trumps logical consistency.
The Armed Populace Doctrine
The gun lobby's doctrine is another version of the libertarian fantasy. It says the intent of the Second Amendment was to maintain a balance of power between a contingency of extralegal armed force (called the "sedentary militia") and any and all government.
The NRA's Stephen Halbrook argued the recent Printz and Mack (1997) cases before the Supreme Court. He offers a preposterous version of the Western political tradition:
[That Every Man Be Armed (1984), p. 9]
Halbrook also defines polarization on firearms policy:
[That Every Man Be Armed (1984), p. ix.]
The thinking is remarkably parallel to that of the free market utopians. Friedman:
[Capitalism and Freedom, p. 13.]
In Weber above the use of armed force is prescribed by the state or permitted by the state. The state's monopoly on violence creates the sovereignty of law not a police state. Public trust under the rule of law inheres in the civic consciousness of the citizenry. Constitutional government thrives in the ambiguous middle between order and liberty, individual rights and majority rule, tyranny and license. The libertarian fantasy's political defeatism and cynicism cannot find does not even look for public trust between the extremes.
The gun lobby's doctrine, masked as an individual right, has been given enormous respectability by gun lobby/libertarian pseudoscholarship published mostly in the law journals. The case is built on numerous widely repeated frauds [See .../196fp46.html, .../196fp29.html, .../196locke.html]. The most ubiquitous is use of Federalist Paper No. 46. The gun lobby's armed populace doctrine is built to a large degree on one paragraph. The words, "...the advantage of being armed...", are quoted in about half the 32 "pro- individual right" articles on Wayne LaPierre's list. They are usually quoted out of context and always cited to mean something very different from what they mean in context. Here they are in usual misrepresentation in the NRA Member Guide:
Alluding to "the advantage of being armed, which the Americans possess over the people of almost every other nation," James Madison adamantly defended the individual right to arms by stating: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
[NRA Member Guide, insert in American Rifleman, March, 1991]
In arguing for ratification of the Constitution Madison wrote:
There is no research on why this pseudoscholarship, most of it independent of the identifiable gun lobby, has appeared in recent years, but suspicion has to be that it has been sponsored and promoted, directly or indirectly, in all cases or in just enough to give momentum, by the same rightwing interests that have been so active in other areas of policy.
The Right to Insurrection
The armed populace doctrine is explicit about resistance. The right-to-arms is a right-to-insurrection. In "The Founders and the AK-47," Washington Post, July 6, 1989, p. A17, Sue Wimmershoff-Caplan, a member of the NRA National Board, wrote:
The NRA's LaPierre wrote in Guns, Crime, and Freedom (p. 7):
Well, the people do have a right to abolish oppressive government. It is a natural right, an unalienable right, but it is not one of those certain unalienable rights, not an individual civil right, that can possibly be secured by government. In Locke the right to resist political authority is a natural right, an unalienable right, but it is the collective right of the "body of the people" [The Second Treatise, § 233-242]. Locke explicitly denied any such right to individuals [§ 243].
One would never know from public discourse but the gun lobby has made its case if federal court. The Second Amendment Foundation's amicus in US v. Francis J. Warin (1976) [530 F.2d 103] asserts "A basic right of freemen[!] to take up armed to defeat an oppressive government." The US Court of Appeals, Sixth Circuit, explicitly rejected Warin's claims. Cert. denied. Defeated in the courts, the gun lobby will have its doctrine anyway by defeating legislation. It will prey on fear, personal insecurity, and a vicious cycle of civic decline which it helps create. The current campaign to loosen conceal/carry permit requirements that has succeeded in thirty plus states is part of the strategy. It would seem a safe prediction that, without elevated civic consciousness, in another five to ten years the gun lobby will be campaigning to remove the permit requirement altogether. All those guns in private hands are "a quiet but tangible deterrent" to the malignancy of government.
This doctrine is not just found on the outer fringes of commentary and court briefs. In the course of the Brady Law debates, Senator Ted Stevens of Alaska stated: "An armed citizenry, people who have the ability to defend themselves, are [sic] not going to become an oppressed citizenry" [Congressional Record, 11/19/93, p. S16315]. The source of the oppression is not specified but a citizenry by definition is subject to law and government. In To Renew America, House Speaker Gingrich, wrote (p. 202), "The Second Amendment is a political right written into our Constitution for the purpose of protecting individual citizens from their own government." The Speaker combines a natural right and a civil right to come up with a meaningless "political right."
Legislators can have loose talk, but, when a "personal right" to be armed outside of the law shows up on the Supreme Court in Clarence Thomas's concurring opinion in Printz and Antonin Scalia's A Matter of Interpretation (1997), both citing gun lobby/libertarian pseudoscholarship, it is a very dangerous development.
The conceptual foundations for firearms policy have to start with the just powers of government, the contours of citizenship, and the requirements of a viable legal order. Once it is established that there is no personal right to extralegal gun ownership, gun ownership can be made accountable to public authority. The whole crisis in gun violence turns on this one point. Accountability to public authority means registration of ownership. The Federal Government cannot microregulate gun ownership. The business of the Federal Government is to maintain a viable legal order. Maintaining a viable legal order means shutting down the illegal traffic in firearms. Shutting down the illegal traffic can only be accomplished by a national firearms policy that requires registration of ownership and reporting of private sales. It is empowering policy for local jurisdictions to be able to establish and enforce their own legal categories of gun ownership. It makes gun ownership subject to laws. It is the only policy that is consistent with a viable legal political order and the rational self-interests of gun owners when they decide that they are citizens. The Federal Government need do little else.
To be effective the policy would have to be accompanied by an amnestied buyback of weapons that do not qualify for legal ownership. The buyback could be financed by registration fees. To be enacted it would have to be preceded by rational public debate that defeats the gun lobby's fantasy, enlists genuine political leadership, and builds a consensus on the purposes of gun ownership. The debate is about citizenship not guns. It would be nothing short of a much needed national civics lesson.
This is not a new or radical proposal. Its model is the Militia Act of 1792, enacted by the same people who ratified the Second Amendment. The Militia Act "enrolled," that is, registered gun owners for militia duty. The Massachusetts Militia Act of 1793, following from the national act, actually uses the word "register." These acts' constitutionality was never questioned or challenged. A few of the gun lobby's own pseudoscholars, when they are being intellectually honest [See Kates in .../196lrev.html, and .../196gnd.html. Halbrook denounced Kates' article in the American Rifleman, 11/84], concede that there was no personal right to extralegal gun ownership in the eighteenth century. The militiamen's citizenship was registered along with their weapons. Their gun ownership carried a reciprocal obligation. The Second Amendment guaranteed the right of states to maintain militia forces partially independent of federal authority but the larger context was the republican jus militiae, the right to participate in the military functions of the state as opposed to allowing military functions to be performed by the ruler's much despised regular army composed of mercenaries, foreigners and/or social misfits. The ruler under the British Constitution was the King. The concept was anachronistically applied to the regular army to be maintained by the Federal Government by people who did not understand the transformation in political concepts the US Constitution had achieved. The Federalists could concede the point because they knew the militia would die as an institution as it did. In this context, however, the militiamen were armed for the state, or better AS the state, not against the state. The gun lobby/ libertarians maintain a great confusion between the eighteenth century right to participate and the very contemporaray right to be armed outside of the law. The often repeated phrase on the militia, "the palladium of the liberties of a republic," from Joseph Story (1778-1845), Supreme Court Justice, 1811-1845 [Commentaries on the Constitution (1833), p. 746], cited by Clarence Thomas in Printz, described the right to participate. Story was from Massachusetts. He indicated no conflict between his palladium and the federal and state militia acts he lived under. He worried that the citizenry was losing interest in its right to participate.
Zimring and Hawkins point out that American crime is distinctive for its lethal violence largely confined to the innercities. The location is useful to the libertarian right's agenda. Crime ridden innercities loom large in the constituency the gun lobby appeals to. Loosening conceal carry permits in the South, Midwest, and Mountain States has support out of fear that government offers no protection from the urban lawless. The fearful and far removed, however, have their own civic dysfunction. The gun lobby's right to self-defense, its most successful current appeal, is self-defense in the State of Nature not under law and government. The yahoos holed up in a farm house on the prairie in defiance of all law and government and the Republic of Texas' lunatics recently acting out an absurd flight of libertarian fantasy are more extreme manifestations of the same dysfunction.
If the innercity lawless are alienated from any civic culture, it is not the only group where the civic culture has lost its hold. [There is nothing new either. President Washington confronted the same circumstance in the Whiskey Rebellion in 1794. See Thomas Slaughter's The Whiskey Rebellion (1984).] The big difference is that the lawless in the innercities [or the Whiskey Rebels on the frontier] do not get ideological aid and comfort from members of Congress and justices on the Supreme Court. Addressing crime, lethal violence and personal insecurity in one place requires addressing political dysfunction in others.
The real problem in the innercities is economic. Economic order is essential to political order but a viable legal political order precedes economic order. Establishing a viable political order means first getting this government to function as a government and decide that the just powers of government under this Constitution are sovereign. Political order and civic consciousness have to develop from within innercity communities themselves, but a national firearms policy that addresses lethal violence is empowerment policy for these developments to take place. DiIulio's civil liberties, personal security and freedom from fear, only exist within a viable legal political order. Bringing gun ownership under the rule of law is not a total solution, but it is a necessary beginning.