The 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
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
Many points made in this file are
made in the Potowmack Institute's
amicus curiae brief filed
with the US Court of Appeals, Fifth Circuit, in US v. Emerson.
In the Clinton impeachment hearings rightwing Republicans harrangued us unmercifully about the rule of law. We heard that the rule of law is the foundation of our whole constitutional system. We heard that the rule of law is about procedure and equality before the law and that equality before the law means no one is above the law including the President. There are other dimensions to the rule of law which we did not heard about. These include the consent to be governed, sovereign public authority, and the stature of the legal institutions of government.
Before there can be the rule of law there has to be sovereign public authority, what the Declaration of Independence refers to as the "just powers" of government. The "just powers" of government derive from the consent of the governed. When sovereign individuals in the State of Nature consent to be governed, enter into political community, and create sovereign public authority they surrender up natural rights to the political community. See sections from John Locke below. Sovereign public authority means, as has been universally recognized as the defining principle of modern states, that the monopoly on coercive power over a given jurisdiction is maintained by the state. Modern states are legal entities. In Max Weber's original passage from which comes the phrase the state's "monopoly on violence", the exercise of armed force and the maintenance of the capacity to exercise armed force are authorized or permitted by the state which means by law. The "monopoly on violence" means that a state maintains its internal sovereignty. It does not mean that an authoritarian absolutist state disarms and oppresses a disarmed citizenry as our present political cynicism would have it. See amicus in Emerson and A National Firearms Policy on political cynicism. Constitutional government is somewhere in between tyranny and anarchy. Government is the mechanism by which law is made. Agreement on the fundamental law of a constitution, when it operates, creates a civic culture of public trust. Public authority also means that to be viable the institutions of government, for good or ill, have to have a stature that transcends the private faults of individual office holders.
The issue becomes whether or not the rightwing Republicans (or really anyone else these days) who are so concerned about the rule of law have any real concept of what the rule of law is, what sovereign public authority is, what government is, and what these require out of and impose on citizens who have consented to be governed. Rightwing Republicans define themselves against the 1960s assaults on the institutions of society. In those days, the institutitions of society responded with assertions of law and order. The spirit of insurrection has now come full circle and is most explicit in the gun lobby's doctrine of political liberty. The same rightwing Republicans who assert the rule of law are beholden to the gun lobby and work hard in service to the gun lobby to maintain the childish political fantasy that all those guns in private hands, untouched by any laws, are what keep us free from the oppression of government which includes the oppression of the rule of law itself.
Rightwing Republicans might explain some things to us about
the rule of law.
Rep. Bob Barr, among the more rabid Clinton haters
who advocated impeachment even before the impeachment
offenses voted on were committed, stated in the
impeachment debates on December 11, 1998. (quoting
Full text at
Full text at .../bbarrbuy.html#barr121198
We give up the right to exercise brute force to settle disputes, a situation where chaos reigns and the strongest most often prevail. Instead, we submit to the power delegated to the state under which an individual then submits, to the governmental processes as part of the social contract. Indeed, when conflict arises in our society, we as individuals are compelled via the social contract to take disputes to our third branch of government, the courts. The judicial branch of government then peacefully decides which party is entitled to judgement in their favor after a full presentation of truthful evidence.
Implicit in the social contract that we enter into as a civilized society is the principle that the weak are equally entitled as the strong to equal justice under law. Despite the tumbling tides of politics, ours is a government of laws and not men. It was the inspired vision of our Founding Fathers that the Judicial, Legislative, and Executive branches of government would work together to preserve the rule of law. The United States Constitution requires the judicial branch to apply the law equally and fairly to both the weak and the strong.
Once we as a society and particularly our leaders no longer submit to the social contract, and no longer pay deference to our third branch of government which is equally as important as the legislative and executive branches of the government we begin to erode the rule of law and begin to erode the social contract of the great American experiment.
Full text at .../bbarrbuy.html#buy011699
Buyer lists the "threat to our system of government" twice in his presentation and the "rule of law" twenty times, but he needs to reconcile his 100% rating from the National Rifle Association with the fundamental political concepts he proclaims. We go to the source of American political concepts to elaborate on the conflict below.
The burden of explanation, however, is on the whole Congress which voted impeachment of a president for subverting the rule of law. The same Congress might address another real threat to our system of government which is the contingent of extralegal armed force which the NRA, with the help of Reps. Barr and Buyer, successfully maintains. As long as the NRA succeeds, no law is free from doubt, no judge can be sure in his writ, and no citizen can really be safe from his neighbors or anyone else. There is no personal security in the state of anarchy. Under the rule of law citizens consent to be governed. They cannot hedge the consent with vague threats against the exercise of lawful authority posed by a personal right to be armed outside of any accountability to public authority or state function.
There is no secret about the purpose of the extralegal armed force which the NRA unabashedly calls "armed citizen guerrillas". Former House Speaker Newt Gingrich wrote in his book To Renew America, p. 202, "The Second Amendment is a political right written into our constitution to protect individual citizens from their own government." The right to revolution is a political right not a legal right. Revolution is treason. Does the former Speaker of the House mean a "political right" to commit treason? Or, does he think the Framers of the Constitution wrote into it a politically childish individual fantasy? Sen. Ted Stevens of Alaska stated in the course of the Brady Law debates, "An armed citizenry, people who have the ability to defend themselves, are [sic] not going to become an oppressed citizenry" (Congressional Record, Nov. 19, 1993, p. S16315.) Has this armed citizenry consented to be governed, formed political community and put itself under law and government? Or, is the source of the oppression here the rule of law itself?
Impeachment Republicans' harangue about the rule of law presented a failed opportunity in the 2000 election season for a national civics lesson that would lead to a reaffirmation of what law and government are and what we are doing here as a political community. US v. Emerson was another failed opportunity. The Potowmack Institute's amicus curiae in Emerson puts this issue before the court but another court will have to take it up.
In the face of this, the gun lobby insists that the intent of the Framers of the Constitution in the Second Amendment was to create a private contingent of extralegal armed force, called the "sedentary" or "unorganized" militia, which would function as a "barrier" ( word lifted out of context from Federalist Paper No. 46) against tyrannical government. All those guns in private hands are what keep us free from the oppression of government. The Constitution becomes a treaty among armed sovereign individuals where political authority has no real legitimacy, the institutions of government have no real stature and no law, as Rep. Barr would have it, is secure. President Lincoln described a fundamental aspect of public authority in his First Inaugural: "Perpetuity is implied, if not expressed, in the fundamental law of all national governments." Chief Justice Edward Douglas White put it in an opinion in 1917 upholding national conscription: "A governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertions is in no substantial sense a power." James Madison said in the Virginia Ratification debates: "What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all." (3 Elliot's Debates 413)
If governments are instituted among men to secure certain unalienable rights, government must have "just powers." If government is to have just powers, citizens must give obligation. Just powers include the power to enforce the obligation, but just powers do something more. They maintain the rule of law and a civic culture of public trust. Otherwise, we are on our own to secure our unalienable rights in the State of Nature which is the state of anarchy.
The gun lobby has not been able to win what it wants in court.
Appendix E of our Emerson amicus brief,
and the NRA's petition in NRA v. Reno(2000). Emerson was another recent appearance of the arguments. See US v. Emerson. Short of constitutional protection by the courts, the gun lobby needs to defeat legislation that might ultimately lead to making gun ownership accountable to public authority. The NRA works very hard on this. A little observed provision of the Brady Law was that all gun sales records maintained for background checks be destroyed within twenty days. The NRA filed suit in NRA v. Reno in fall 1998 to have the FBI prevented from maintaining records under the Instant Check system. It lost. To the gun lobby sales records and Instant Check records are the equivalent of registration. Registration means accountability to public authority and defeats the armed populace fantasy. If accountability of ownership is the only thing the gun lobby and its armed populace fantasy really care about, why argue about anything else? The policy recommendation of the Potowmack Institute is a national firearms policy of accountability of ownership and the reporting of private sales. The policy would have a different purpose but the requirement would be no different from what was required in the Militia Act of 1792. There is no constitutional barrier to the Congress defining the weapons in the society as a national resource to be called out to enforce the laws of the Union and requiring, as did the Militia Act, the states to maintain an inventory.
John Locke explained in §§ 123-130 of the The Second Treatise that men enter into political community out of the State of Nature for three reasons: 1. there is no common agreement on what natural rights are which makes the State of Nature "full of fears and continual dangers," 2. there is no "known and indifferent judge with authority to determine all differences according to the established law", and 3. there is no "power [sovereign public authority] to back and support the Sentence when right, and to give it due execution." These reasons are why we have the rule of law.
Locke described the process and the outcome of forming political community:
The Libertarian Party Platform states that the right to exercise force inheres in the individual. This is true in the State of Nature but not under law and government. James Wilson, one of the Framers of Constitution, argued for ratification before Pennsylvania ratifying convention with the observation:
The state of New Hampshire went so far as to write the fundamental concept into its 1784 Bill of Rights:
Locke summed up The Second Treatise in this final passage:
But, the consent to be governed, political community and the rule of law had still another requirement, already mentioned, of "his own assistance":
The state's monopoly on violence was anticipated in Locke's "employing the force of the community" (§ 3), but there was more. House Minority Leader Dick Gebhardt stated in comments on the Clinton impeachment debates that "politics is the substitute for violence." Politics is what citizens do, as citizens. The burden of citizenship is to make political community work by substituting laws for violence. Law making authority depends on majority rule. Majority rule is restrained by constitutional checks. Majority rule means there are always minorities who did not get what they wanted in the political process but a sense of nationhood inherent in political community transcends differences between majorities and minorities. Common agreement on sovereign public authority creates a civic culture of public trust. A civic culture of extreme individualists pointing guns in a balance of power against any and all government or just clutching guns as a hedge against the consent to be governed is a civic culture of fear, suspicion, and political cynicism. We see the collateral damage in the daily news. Maintaining instruments of violence and the capacity to exercise violence outside of accountability to public authority and legal authorization is a repudiation of political community, public authority and the consent to be governed. In political community the citizen participates in making the judgments of the community and the judgments of the political community are the judgments of the citizen. This was a radical concept in Locke in the seventeenth century. Before Locke, polilitics, political authority, and political obedience were matters of religion, theology and scripture. With Locke everything had changed. The change was incorporated into the American political system in the next century. The new concept seems to be more than many can handle now.
To "imploy all the force of all the Members when there shall be need" the Constitution defines the President as the Commander-in-Chief of the militia when called to the service of the United States and gives Congress the power to call forth the militia to enforce the laws of the Union. If in The Second Treatise the members of the political community have given a right to the community to "imploy" their "force" and if in the US Constitution the President and the Congress have authority over that force in the form of the militia, then the President and the Congress have a right and a need to know who the militia are and what resources they possess including an inventory of their weaponry. The force of the community would have no meaning if there was no inventory of its capabilities and readiness. The Second Amendment was about the nature of the organization of the force of the community whether it resided in the citizen militia or in the king's regular army now become the regular army of the United States. It's consciousness was expressed in the Militia Act of 1792 which required the states to "enroll" that is, register gun owners for militia duty. It also required inventories, called "Return of Militia", to be maintained of militia resources, including privately owned weapons, and that these were to be reported to the President of the United State. There is no implication in John Locke, in the Constitution, or the Militia Act that there was a balance power to be maintained between a contingent of extralegal armed force (called the "sedentary militia") and any and all government. In such a circumstance, as Locke put it, "there can be no community." In 1789, the revolution was long since over. New government was instituted. The new government came to an immediate test in the Whiskey Rebellion in 1794. President Washington sent an army and tried the leaders for treason. In 1774-76, there was a revolutionary situation. In 1794, there was not. The gun lobby and the rightwing movement do not have a revolutionary situation now. What they have and insist on maintaining is a childish political fantasy. The present business of government is to bring the NRA's "armed citizen guerrillas" into contact with their political adulthood and the business of the citizenry is to bring members of Congress into contact with their oath of office.
In Locke, consistent with our present concept of the rule of law, the laws applied equally to all. This was also a radical concept in the seventeenth and eighteenth centuries when aristocratic privilege was still dominant in Europe:
So far so good for equality before the law, but it is still an elusive concept laden with hypocrisy. The rightwing movement trapped a president in an arranged, gotcha set up that should never have happened, created a national spectacle and than has insisted on equal application of the law. At the same time, children of at least three rightwing Republicans in Congress (Sen. Shelby (Al.), Rep. Duke Cunningham (Ca.) and Rep. Dan Burton (In.)) have been arrested and convicted on drug charges but have managed to evade strict mandatory sentences imposed by Congress.
There is still another dimension to the "just powers" of
government. The stature of the institutions of government
transcend the personal failings of the occupant of a given
office. The stature reflects the august nature of the just
powers created. Prerogative is an ambiguous concept and archaic
seventeenth language does not make it easily accessible. We did
not hear about prerogative in the impeachment embarrassment, but the
concept has been around for 300 years and still has force. It is
worthy of interest now in context of the assault on the
institutions of government:
§ 160. This Power to act according to discretion, for the
publick good, without the prescription of the Laws, and sometimes
even against it, is that which is called
For since in some Governments the Law-making Power is not always
in being, and is usually too numerous, and so too slow, for the
dispatch requisite to Execution; and because also it is
impossible to foresee, and so by laws to provide for, all
Accidents and necessities, that may concern the publick; or to
make such Laws, as will do no harm, if they are Executed with an
inflexible rigour, on all occasions, and upon all Persons, that
may come in their way, therefor there is a latitude left to the
Executive power, to do many things of choice, which Laws do not
§ 161. This power whilst imployed for the benefit of the
Community, and suitably to the trust and ends of the Government,
is undoubted Prerogative, and never is
§ 165. ...The people therefor finding reason to be satisfied
with these Princes, whenever they acted without or contrary to
the Letter of the Law, acquiesced in what they did, and, without
the least complaint, let them inlarge their Prerogative as
they pleased, judging rightly, that they did nothing herein to
the prejudice of their Laws, since they acted conformable to the
Foundation and End of all Laws, the publick good.
Short of a revolutionary situation, The institutions of
government, including the office of the Presidency, to be viable
have to command respect and instill at least a little fear.
Alexander Hamilton addressed this point obliquely in
Federalist Paper No. 25:
§ 159. Where the Legislative and Executive Power are in
distinct hands, (As they are in all moderated Monarchies, and
well-framed Governments) so there the good of society requires,
that several things should be left to the discretion of him, that
has the Executive Power. For the Legislators not being able to
foresee, and provide, by Laws, for all, that many be useful to
the Community, the Executor of the Laws, having the power in his
hands, has by the common Law of Nature, a right to make use of
it, for the good of the Society, in many Cases, where the
municipal Law has given to direction, till the Legislative can
conveniently be Assembled to provide for it. Many things there
are, which the Law can by no means provide for, and those must
necessarily be left to the discretion of him, that has the
Executive Power in his hands, to be ordered by him, as the
publick good and advantage shall require: nay, 'tis fit that the
Laws themselves should in some Cases give way to the Executive
Power, or rather to this Fundamental Law of Nature and
Government, viz. That as much as may be, all the Members
of the Society are to be preserved. For since many
accidents may happen, wherein a strict and rigid observation of
the Laws may do harm; (as not to pull down an innocent Man's
House to stop the Fire, when the next to it is burning) and a
Man may come sometimes within the reach of the Laws, which makes
no distinction of Persons, by an action, that may deserve reward
and pardon; 'tis fit, that Ruler should have a Power, in many
Cases, to mitigate the severity of the Law, and pardon some
offenders: For the end of Government being the
preservation of all as much as may be, even the guilty are
to be spared, where it can prove no prejudice to the innocent.
Locke is saying, like it or not, that the executive power is
different. It has to have a stature that transcends the mere
definition of the office and the personal failings and faults of
the occupant. This is recognized in law. Even members of
Congress cannot be arrested while in office. Even police
officers have an authority recognized in law different from
ordinary citizens with guns.
§ 164. ...Prerogative can be nothing, but the Peoples permitting their Rulers, to do several things of their own free choice, where the Law was silent, and sometimes against the direct Letter of the Law, for the public good; and their acquiescing in it when so done.
[Massachusetts] was compelled to raise troops to quell a domestic
insurrection [Shays' Rebellion which precipitated the writing of
the Constitution], and still keeps a corp in pay to prevent a
revival of the spirit of revolt. The particular constitution of
Massachusetts opposed no obstacle to the measure; but the
instance is still of use to instruct us that cases are likely to
occur under our government, as well as under those of other
nations, which will sometimes render a military force in time of
peace essential to the security of the society, and that it is
therefor improper in this respect to control the legislative
descretion. It also teaches us, in its application to the United
States, how little the rights of a feeble government are likely
to be respected, even by its own constituents. And it teaches
us, in addition to the rest, how unequal parchment provisions are
to a struggle with public necessity.
The Office of the Presidency, for good or ill, has to have
stature that transcends parchment provisions. We can give one
large example. In 1940 President Roosevelt transferred naval war
ships to the British in clear violation of the intent and spirit
of existing law enacted to prevent exactly that kind of
involvement with belligents. Roosevelt exercised prerogative and
history judged him right and the isolationist Congress wrong.
Some Republicans tried to defend the Reagan Administration
actions in the Iran/Contra Scandal on the same grounds of
prerogative. Authority to act without law puts a stature on the
office. There was a time when hypocrisy on private matters,
eventhough often reprehensible, was committed to preserve the
stature of the institutions of government. Certain questions
were not asked. The real degradation of the Office of the
Presidency is that the questions have now been asked. If there
has been a change, it is rightwing Republicans and the rightwing
movement that has made the assault and asked the questions. In
judging the private failings of President Clinton the majority of
the American people have exercise the good
libertarian principle of jury
nullification. An instinctive regard in the people for
the stature of the institutions of government and how that
stature contributes to the rule of law and the stability
of the political system is not a regard that the
rightwing movement shares. They are not taking
any chances with encroachments of government. If the
agenda includes an insurrectionist fantasy, then what matter the
Office of the Presidency.
There is still another dimension to the "just powers" of government. The stature of the institutions of government transcend the personal failings of the occupant of a given office. The stature reflects the august nature of the just powers created. Prerogative is an ambiguous concept and archaic seventeenth language does not make it easily accessible. We did not hear about prerogative in the impeachment embarrassment, but the concept has been around for 300 years and still has force. It is worthy of interest now in context of the assault on the institutions of government:
§ 160. This Power to act according to discretion, for the publick good, without the prescription of the Laws, and sometimes even against it, is that which is called Prerogative. For since in some Governments the Law-making Power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to Execution; and because also it is impossible to foresee, and so by laws to provide for, all Accidents and necessities, that may concern the publick; or to make such Laws, as will do no harm, if they are Executed with an inflexible rigour, on all occasions, and upon all Persons, that may come in their way, therefor there is a latitude left to the Executive power, to do many things of choice, which Laws do not prescribe.
§ 161. This power whilst imployed for the benefit of the
Community, and suitably to the trust and ends of the Government,
is undoubted Prerogative, and never is
§ 165. ...The people therefor finding reason to be satisfied with these Princes, whenever they acted without or contrary to the Letter of the Law, acquiesced in what they did, and, without the least complaint, let them inlarge their Prerogative as they pleased, judging rightly, that they did nothing herein to the prejudice of their Laws, since they acted conformable to the Foundation and End of all Laws, the publick good.
Short of a revolutionary situation, The institutions of government, including the office of the Presidency, to be viable have to command respect and instill at least a little fear. Alexander Hamilton addressed this point obliquely in Federalist Paper No. 25:
Do the people still have a right to revolution? They certainly
do, but it is not a right secured by government. See Stephen
Chicago-Kent Symposium. Locke continues
in the same chapter on prerogative:
Recent tragic events and an apparent change in public attitudes toward gun violence creates the opportunity to introduce conceptual foundations for firearms regulations and what is really at stake into public discourse in the 2000 election season.