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http://www.potowmack.org/5issues.html updated 02/17/2008

Will anything change? There are other important issues that expand on the issues raised in the letter to Walter Dellinger.

1) Insurrection

A ruling from the court that validates a right to be armed outside of a military or militia purpose validates an anarchic, insurrectionist doctrine. Treason is the only crime defined in the Constitution. The question is, Is the "armed populace" composed of citizens bound by law? Do the rights of citizenship include the rights of insurrection and treason? Is there a difference between Civil Society and the State of Nature which is the state of anarchy? Does something change when we consent to be governed? Republicanism is communitarian republicanism with civic obligation not (Respondent's frequently quoted author) Stephen Halbrook's "libertarian republicanism", (Emerson amicus, p. 16) a contradiction in terms. If the ultimate goal is right to be armed outside the law, the Constitution is reduced from a frame of government to a treaty among sovereign individuals. The rule of political life becomes the political cynicism that somehow clutching the gun like clutching a voodoo charm is our last defense against the tyrannically encroachments of government? See Parker amicus, p. 14. By clutching the gun we levitate ourselves out of political existence and become, at least in the imagination, individual sovereigns. The large number of academics and the great many other people with college educations who have embraced the armed populace doctrine is reminiscent of the substantial intellectual and academic climate that embraced European fascism in the interwar period. Now as then the opposition, both political and intellectual, to the anarchic spectre is feeble or non-existent. The gun controllers will give us trigger locks.

2) Conscription

The militia clauses of the Constitution, the Second Amendment, and the Militia Act of 1792 were all about conscription. There are no individual sovereigns and very little individual rights in a conscript military organization. The universal military obligation is misconstrued to mean the "armed populace at large" (Respondent's brief p. 16). Judge Silberman must have realized in the end that he is under oath of public office.

Judge Silberman's political sop to the gun rights doctrine then becomes quite confused. In his next sentences he adds:

So why have suitability standards at all? Why have any standards at all if they don't mean anything? Will the courts start deciding militia suitability? Will the disabled person's arms be on an inventory for requisitioning, http://www.potowmack.org/parkappi.pdf? Will the NRA's "armed citizen guerrillas" who will save us from the tyrannical encroachments of government be composed only of the disable and the unsuitable for militia call up. How silly have we become?

Registration for militia call up has a fuller context and history that are missing from the several amici. Judge Silberman does not get it either in his mention of registration for call up. The conscript state militias died a natural death in the early Republic because no one wanted them and they served no theoretical purpose. See my Parker amicus p. 25, Emerson amicus p. 22. The concept of a coerced civic obligation lay dormant but it did not disappear.

The right of the people manifest in the state militias was the republican right of the people to participate as conscript citizen soldiers in the military functions of the state rather than leave those functions up to a standing army whether the mercenary British Army recently removed or the US Army which, as created in the Constitution, was explicitly modeled after the British Army. The militia concept only makes sense in the context of eighteenth century imperial military structures. If there was a right of the individual, it was the right to be included rather than excluded as were members of certain groups namely, in some cases, Catholics, Jews, Scots, Irish, freed slaves and Indians, who were not considered politically trustworthy. The original coerced civic obligation, manifest in the Militia Act of 1792 and the several state militia acts, was resurrected and transformed in the twentieth century Selective Service Acts. The United States became a national republic and the US Army became in a sense a national militia. The previously antagonistic institutions of the conscript state militias and the mercenary US Army were combined. And, Oh, How we have changed since only a few years ago. Try to get either the Libertarian Right or the Libertarian Left to accept, to say nothing of rally behind, national conscription now or just a reserve power of militia call up to which Judge Silberman has given his constitutional permission.

3) The Modern State

National conscription was one of at least five transformations of the United States in the twentieth century of constitutional proportions that made the United States into a modern state capable of performing on the world stage as a great power, managing an industrial economy, and securing liberty and justice for all, http://www.potowmack.org/196rehm.html#5trans. All involved expansions of federal authority. The tyrannical encroachments of government become the tyrannical encroachments of the modern state. It is on sweeping ideological principles and the pervasive political cynicism of libertarian ideologies not merit or national need that hard right ideologues cannot accommodate to the expansions of federal authority. Some people have a great difficult accommodating to any political authority at all much less to a central authority.

Unobserved is that as the Federal Government expanded its powers and authority in the twentieth century, the federal judiciary expanded protections for individual rights. The Second Amendment was not included. Has something changed that it needs to be included now?

4) Fourteenth Amendment Incorporation

Unappreciated is that of these five transformations the Selective Service Act of 1917 and the Selective Draft Law Cases were the most radical departure from original design and intent. See Parker amicus p. 12, 14. The shift to an all volunteer army, ladened with political cynicism, was another significant change that has led now to private military contractors. The Founders would be horrified. The Supreme Court did not rely on the Fourteenth Amendment in the Selective Draft Law Cases but as David Yassky points out (Mich. L. Rev., Dec2000) the Fourteenth Amendment made citizenship unambiguously national and therefore constitutionalized national conscription. There is a larger context at http://www.potowmack.org/lionel.html#natstate.

The gun rights ideologues look to Justices Scalia and Thomas for their salvation. It is very ironic that ultimately the only meaning the Second Amendment can have is Fourteenth Amendment incorporation which would protect the individual right against state infringement. The Libertarian Right has never accepted the expansion of federal power to incorporate any articles of the Bill of Rights into Fourteenth Amendment protection. What then do we have? In A Matter of Interpretation Scalia wrote, fn p. 137:

Thomas wrote in his concurring opinion in Printz:

Oops! No Fourteenth Amendment incorporation against the states. Their objection is the hard right wing sweeping ideological objection to expansions of federal authority under the commerce clause. If the issue is commerce not militia call up, the National Firearms Act of 1934 becomes in jeopardy. See Alito dissent in Rybar. The Federal Government does not need to microregulate guns anymore than do the courts. The responsibility of the Federal Government is to do what state and local jurisdictions cannot do: Shut down the illegal traffic between and among jurisdictions. That is accomplished with registration for militia call up and reporting of private sales. Those requirements, in national policy, are the essential powers of enforcement of those "reasonable restrictions" for local jurisdictions. The obstacles are political not constitutional. Local regulations could vary widely as the several amici argue.

5) The Poverty of Public Knowledge and Discourse.

The cases in court going back to Emerson in 1999 have been opportunities to expand public knowledge. The biggest problem the District of Columbia has besides its own fail consciousness, failed leadership, and lack of political savvy is public ignorance. The enormous volume of argument, history, and constitutional doctrine presented in the amicus briefs in the Petitioners' support are nowhere a part of the larger public consciousness. Most of the 250 plus amici cosigners, as valuable and commendable as their arguments are, have never been in court on this issue before. The gun rights/libertarian anarchic doctrine, meanwhile, has been in the courts for decades. The first big test was US v. Francis J. Warin, http://www.potowmack.org/warin.html, in the Sixth Circuit in the 1970s. The gun rights militants lost and retreated into the law journals to fabricate their anarchic doctrine. The doctrine is now in the courts.

When the Supreme Court decided Roe v. Wade in 1973, a very militant, hyperactive constituency quickly emerged that regarded the ruling as intolerable and are still working to reverse it. There is no constituency that will have a similar reaction to an anarchic ruling coming out of the court in Heller and, if thirty years of failed consciousness and ineffective activism are any indication, a constituency for law and government over anarchy is not likely to emerge now. If the DC government's problem is gun violence, it can start addressing gun violence with leadership to change public knowledge and attitudes. It should have a receptive audience in big city mayors and governments and urban politicians. There is no leadership there either. No one has seized the opportunity for leadership presented by Judge Silberman's conclusions.

Meanwhile, the gun rights crowd, whether they get it or not, follows the gun rights cases with intense interest. There are dozens, perhaps hundreds, of websites and internet message boards devoted to gun rights proclamations and arguments. There is nothing on the side of law and government. (The Potowmack Institute maintained the only such message board for several years, http://www.potowmack.org/bbs.html. It was shut down for the reason given. The only people who showed up there were the gun rights militants.) The real discussion begins with Federalist Paper No. 46. The Potowmack Institute has tried to enlighten the rank and file of some of the 250 plus amici cosigners to what James Madison was really describing in Federalist Paper No. 46 for as much as ten and fifteen years and found nothing but blank, puzzled looks and even overt hostility that there something more to this than promoting trigger locks. Now they have signed on, many years and many tragedies, traumas, and dead bodies later, to briefs that make the most elementary point.

There is much other dereliction. The list among the news media is long but there are a few for starters: The gun lobby's most reliable asset, the one the NRA calls "the rabidly antigun Washington Post", not only adamant refuses to print anything that would expose the falsehoods the armed populace doctrine is built on but prints the falsehoods uncritically and in relative abundance.
http://www.potowmack.org/emerappi.html,
http://www.potowmack.org/parkappc.pdf,
http://www.potowmack.org/washpost.html
It refuses to print anything that would embarrass or challenge the gun lobby's minions in Congress or pandering candidates on the campaign trail.

The Washington Post is followed closely by NPR's Diane Rehm who, despite encouragements from the Potowmack Institute, has not devoted her program to this subject more than a handful of times in twenty years,
http://www.potowmack.org/196rehm.html,
As of this writing there is nothing on her program schedule devoted to Parker/Heller even though the cases are in her immediate neighborhood and have been in court for five years. AirAmerica Radio, which calls itself "progressive talk radio," has recently joint the hall of false consciousness with its incredibly ignorant, crude, ugly, abusive air waves barbarian, http://www.potowmack.org/lionel.html. It does not get much worse.

More media and failed political consciousness at http://www.potowmack.org/parkappc.pdf.

The issue the DC Government needs to put before the court is not that the court should not hold its gun law unconstitutional by protecting an expanded individual right to be privately armed but to leave the District of Columbia alone to make bad law, defined here as unenforceable law, until it comes up with good law and cultivates and leads a political movement that will make that possible by changing public knowledge and consciousness. That has to happen before there can be any other progress. Judge Silberman has given the opportunity.

Will anything change?