The Potowmack Institute

The Rule of Law

[US Rep. Bob Barr]
[US Rep. Steve Buyer]
[The Consent of the Governed]
[American Political Scripture]
[John Locke, The Second Treatise]
[Of Prerogative]

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
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

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 President Kennedy):

See The Libertarian Fantasy on the Supreme Court" for similar comments from Ayn Rand and Friedrich Hayek.
He is very right about this, but Barr is also a member of the NRA's National Board. The contradiction was even more glaring in House Manager Rep. Stephen Buyer's presentation before the Senate January 16:

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.

See also:
"Guns, Rights, the Libertarian Fantasy, and the Rule of Law"
"Libertarians & Conservatives"

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.

See "What does the NRA Want?"
"Charlton Heston Speaks"

The Consent of the Governed

Taking rightwing Republicans to task on the specific issue of bringing gun ownership under the rule of law elevates public discourse and brings the rule of law right down to the level of individual citizens. The gun lobby's response to bringing gun ownership under the rule of law is that gun ownership is under the rule of law and twenty thousand gun laws do not work. The response is effective demagoguery, but it evades what is at stake. The consent to be governed means citizens, gunowners and nongunowners alike, put themselves under law and government and create sovereign public authority. The consent to be governed does not create an ad hoc voluntary association. This distinction was understood and addressed at the time of the American Revolution. Alexander Hamilton wrote in Federalist Paper No. 33:

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. See Warin,
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.

For explicit statements on what the gun lobby wants, see "armed citizen guerrillas" in "The Founders and the AK-47" and "a basic right of freemen" in the Second Amendment Foundation's amicus in Warin.

American Political Scripture

The gun lobby, the libertarians, and the rightwing movement can have their armed populace fantasy and campaign for it all they want, but they cannot claim the Constitution, the Second Amendment or the practices of the eighteenth century militia as their authority. The verbiage overkill cannot change the plain fact that the fantasy is not supported in political theory or the historical record. There is no ambiguity when the historical record and the founding documents are examined ojectively in full context.
"Revolutionary Militia Consciousness"
"What does the NRA Want?"
"Charlton Heston Speaks, with Comments"

John Locke's The Second Treatise of Government was the primary manual of the American Revolution. This is American political scripture as much as the Declaration of Independence, the Federalist Papers, and the Constitution. Jefferson adapted the concepts in the Declaration of Independence from The Second Treatise. In the 1770s and 1780s, the fundamental political concepts were debated in the parlors, the town squares, the newspapers and the assemblies. Today we get the Washington Post, the Baltimore Sun, the US Congress, and the Maryland Legislature. The fundamental concepts come up for renewal every few generations. They are up for renewal now. We can not leave the debate on the fundamentals up to the politicians who run scared from every substantive issue, the Washington Post, which has abandoned any pretense of public enlightenment, or to National Public Radio, and ABC News. We can concede ambiguity in the record if it leads to rational, informed public debate. However, we have to get out all the relevant information, expose the falsehoods and the motives of those who present the falsehoods, and arrive at a consensus on what we want now for the contours of citizenship and the sovereignty of the legal institutions of government. We cannot allow a doctrine of political liberty to be sneaked in through a process of civic decline. If we are going to take this up, let's start from the beginning.

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:

The first natural right they surrender up is Locke's "executive power of the law of nature." Otherwise, there is no political community, no "just powers" of government, and no political obligation— no pledge of allegiance, as we say, "to the flag and to the republic for which it stands." There was no controversy at the time over what was stated by Wilson or in the 1784 New Hampshire Bill of Rights.

Locke summed up The Second Treatise in this final passage:

The authority created in the political community was supreme. It was sovereign public authority. There was no right of individuals to secede from political community once they entered into it, and there certainly was no contingent of extralegal armed force created such as the NRA's "armed citizen guerrillas" as a hedge against the consent to be governed.

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.

Of Prerogative

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:

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.

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:

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.


Do the people still have a right to revolution? They certainly do, but it is not a right secured by government. See Stephen Heyman in Chicago-Kent Symposium. Locke continues in the same chapter on prerogative:

The Second Treatise of Government is still in print after 300 years. It speaks across time. One of its secrets is its ambiguity. To reduce government to a treaty among sovereign individuals, the libertarians are much attached to the language of The Second Treatise that describes the freedom, benevolence and rationality of the State of Nature, but Locke was an advocate of law and government not the State of Nature. As long as the difference is unclear in the public mind, the gun lobby can claim passages like this as authority for its insurrectionist gun rights. However, to make revolution the people appeal to heaven not to the Constitution. The appeal to heaven is a moral justification not a civil right secured by government. The appeal to heaven only has a force when the inconvenience is so great that the majority feels it. It cannot be a civil right secured by government to private individuals or minority factions. In the language of atomic physics there has to be a critical mass to support revolution. The political cynicism of the rightwing movement can find no middle ground— what we would call constitutional government— between authoritarian absolutism and armed anarchy and seeks to incorporate a permanent revolutionary situation into the principles of government.

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.

[US Rep. Bob Barr]
[US Rep. Steve Buyer]
[The Consent of the Governed]
[American Political Scripture]
[John Locke, The Second Treatise]
[Of Prerogative]

[PotowmackForum], interactive posting
[US v. Emerson PAGE]
[NRA v. Reno (July, 2000)]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
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