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The Firearms Policy Journal Before the Judiciary Proceeding Committees of the Maryland House of Delegates and Senate, March 12 and March 13, 1996


MARYLAND LEGISLATURE,
Senate and House Judiciary Proceedings Committees,
MARCH 12, 1996 and March 13, 1996.


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

Guns, Rights, the Libertarian Fantasy, and the Rule of Law
Not Seen in The Responsive Community
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

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

Militia Act, 1792
Mass. Militia Act, 1793

Whittaker Chambers
Reviews Ayn Rand

National Review, 1957

[The committee members very patiently sit through a whole day of testimony giving a voice to the public, but there is no real enlightenment, debate or discussion. The proponents give their statistics and passionate pleas. The gun lobby pundits give their predictable testimony and the NRA brings in large numbers of gun owners to tell how oppressed they will be by the governor's law. The numbers are necessary because the case is not supported by the facts or any logic. The committee members insist they have heard it all and are most interested in new information. There is no inquiry into where anyone stands or a demand from the committee for explanations on some very obvious points. The FPJ gave them new testimony which they did not get from anyone else but they were not really listening. I received a demagogic letter soliciting money from Sen. Timothy Ferguson who represents Frederick Co. addressing me by name and calling me a supporter. (My father's family has lived in Frederick Co. for more than 200 years.) The Washington Post and the Baltimore Sun refuse to publish anything that might enlighten the discussion.]

My name is G. E. Ernst. I live in PG County. I am a gun owner. I have owned guns all of my life. I grew up in NRA programs. I dropped my membership to the NRA years ago when I concluded that what motivates the gun lobby is a doctrine of political liberty I cannot support.

The doctrine says basically that there is a balance of power between an armed populace and any and all government. I have written on this subject in recent years. I have published my articles on the Internet in a thing called the Firearms Policy Journal. I include a copy of the index. You can find more there.

It is important to understand that the gun lobby has argued its doctrine of political liberty in federal court and lost. I have provided the case of US v. Francis J. Warin. This is the most comprehensive Second Amendment case. The US Court of Appeals, Sixth Circuit, explicitly rejected the gun lobby's Second Amendment individual right claims, Ninth Amendment unenumerated right claims, and legal status for the Sedentary Militia which is where the individual right is manifest and the balance power between an armed populace and any and all government is maintained. The Supreme Court refused to hear the appeal. If there is any doubt about the doctrine, I provide a page from the Second Amendment Foundation's amicus curiae brief which contains the statement: "What Amicus asserts is a basic right of freemen to take up arms to defeat an oppressive government."

[David Kopel had testified twice earlier in the day of the House hearings. Here I added in the oral presentation that Kopel (who was no longer present) had written: "The tools of political dissent should be privately owned and unregistered." His paper is contained in Larry Pratt's collection, Safeguarding Liberty (1995) but the words are changed to "The tools of freedom. . ." The meaning and spirit are the same.

Two guys in yarmulkes from Jews for the Preservation of Firearms Owners had previously given some fallacious testimony about Nazis confiscating guns. I was able to provide the comment that when Adolph Hitler demanded a two-thirds vote from the Reichstag that would give him dictatorial powers he brought his private army, the Stormtroopers, into the legislative chambers with him to guarantee the vote. The Weimar Republic was a government that did not have the political will to maintain its sovereignty.]

The doctrine is a little more complicated. Some want to take up arms against the government. Others want to take up arms for the government but without legal authority. Included is a clipping from the Enquirer-Gazette, a PG County newspaper. This is an unnamed organization which wants support for an amendment to the Maryland Constitution that would supposedly mimic the Second Amendment to the US Constitution and guarantee a right to be privately armed. Look at the purpose of the right. These are private interests who want a right to keep and bear arms for very public purposes: "protection of the State" and "defense of public order." This is a prescription for anarchy, vigilantism and paramilitarism.

Defeated in the courts the gun lobby will have its doctrine anyway by defeating and repealing legislation. This legislation to relax concealed carry permits is part of a strategy by some people to have the doctrine of political liberty that the courts have denied them. This legislation which has succeeded in 28 states, at my last count, is part of the strategy. The next step in five or ten years when the public has become acclimated to everyone carrying conceal weapons is to campaign for the elimination of the permit requirement altogether.

The governor's comprehensive gun control bill before this legislature also has to be conscious of the strategy. The gun lobby works very hard to make sure gun laws are poorly conceived, ineffective and unenforceable. The gun lobby can then declare "gun laws do not work" and have the doctrine of political liberty by working to repeal gun laws and dissolve government. There is a slippery slope here to anarchy.

[I was cut short here in the Senate testimony. I was not able to point out the Don Kates, prominent Second Amendment lawyer and gun lobby scholar, who had testified previously that day, has described when he was being intellectually honest in his 1983 Mich. Law Rev. article that registration and licensing are consistent with the original meaning of the Second Amendment and the practices of the 18th century militia. I did get that point in in the House testimony the next day. The committee members from either house did not ask probing questions on these matter. They might have enlighten the testimony by getting Kates to concede that registration and licensing are mechanism to establish legal categories of gun ownership that are in the best interests of gun owners.

I was not allowed to get to the part below regarding Neal Knox who was in the room.]

No local jurisdiction can make gun laws work without a national policy that shuts down the illegal traffic in firearms. To shut down the illegal traffic in firearms requires a national firearms policy based on accountability of ownership and reporting of private sales. A national policy requires a national debate that can start in Maryland. The time is ripe in an election season. The debate has to affirm the fundamentals of citizenship.

Why would anyone be opposed to accountability of ownership. There are four categories of opposition. I have included examples of each. There is substantial overlap between these categories:

Category 1: The unenlightened. This is the largest category. We do not have in this country public debates that enlighten the citizenry. I could be here for a long time if I tried to set straight every fraud and misunderstanding on gun ownership, but I will just give you one. I have provided a page from James Madison's Federalist Paper No. 46. Words from this passage are the most frequently quoted to prove the gun lobby's individual right. In context, Madison was describing a balance of power between state and federal government not private individuals and any and all government. Additional comments are provided. This falsehood along with a great many others is widely believed.

Category 2: The Libertarian Fantasy. Provided are excerpts from the Libertarian Party Platform. The Libertarian Party declares "individual sovereignty," the right to "secession," and advocates absolute gun DEcontrol. Sovereignty is the attribute of a state. It is defined by the monopoly on the exercise of armed force. States are sovereign. Individuals are subjects. States do not consent to be governed by any higher political authority. Individual sovereignty means individuals are not subject to any higher law or authority. They do not consent to be governed. As a matter of political theory it means we reverse the process describe by John Locke in The Second Treatise on Government: we withdraw the consent to be governed, dissolve political community and return to the State of Nature. It is very ironic that no one reads John Locke today. At the time of the American Revolution, Locke was very familiar reading by ordinary citizens at every level of society. The American Revolutionaries self- consciously put themselves under government very much according to the process Locke described.

The libertarian fantasy is most dangerous in that it does not conceive of wickedness. James Madison wrote in Federalist Paper No. 51: "If men were angels, no government would be necessary." The libertarians delude themselves, in their refusal of the consent to be governed, that they are angels and will make the rest of us victims of private concentrations of power.

Category 3: The Right To Arms as A Right to Insurrection: This has already been described above in the Warin case. There is no secret about this purpose. Provided is an article from the Washington Post, July 6, 1989. Sue Wimmershoff-Caplan, an NRA national board member, writes: "Twentieth century military machines are far from invincible when outflanked by armed citizen guerrillas." Ms. Wimmershoff-Caplan does not have in mind the military machine of the government of Uzbekistan. She has in mind any and all government, including this government. I depend on this government to protect me from "armed citizen guerrillas."

Category 4: Mystical Individualism. The next page is from a book by William Cooper called Behold a Pale Horse. (Also .../197coop.html) It is a book of rightwing conspiracy theories. It contains the only copy I have every seen in print of The Protocols of the Elders of Zion. Right there in the same book is a statement by Neal Knox at present the guiding force at the NRA. Knox argues Category 3 above, the right to arms as a right to insurrection. He does not explain that Lithuania was a conquered province of the Soviet Union. It was forcibly annexed by Stalin in the late 30s. Unlike Lithuania, States in the American Union enter into this Union freely usually with enthusiasm and they consent to the terms of political participation in the Federal Union.

But getting to the mystical individualism, Cooper provides a very enlightening comment. He writes, "In case you have not guessed by now, the fact that most Americans own at least one firearms weapon is the only thing that has kept the New World Order at bay." It is no longer tyrannical encroachments of the malignancy of government but the New World Order. Clutching the gun becomes like clutching a Voodoo charm that keeps away evil spirits. Mystical individualism is not just something put forward by William Cooper who can be dismissed as lunatic fringe flake whose distinguishing concern is unidentified flying objects.

The next page is from Pat Robertson's The New World Order. Robertson and his Christian Coalition are important influences in the Republican Party. He writes: "They [The New World Order] would also have to have a law of arms control. They could not have a system that allowed people to keep arms, because that would allow dissenters to foment revolution. So our constitutional right to keep and bears arms would be one of the very first casualties of world order legislation."

The politicians are more circumspect about the New World Order but the message is the same. The next page contains a statement from Oliver North strongly supported by Pat Robertson's Christian Coalition in his Senate campaign in 1994. North has said the purpose of gun ownership is to protect ourselves, "if necessary, from the tyranny of our own government." Tyranny is a subjective judgment. Imagine if Minister Farrakhan were making speeches using these exact same words.

The next page is from the Congressional Record, Nov. 19, 1993. In the course of the Brady Law debates Sen. 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."

Lastly, we have Newt Gingrich, Speaker of the US House of Representatives. He writes in his book To Renew America (p. 202): "The Second Amendment is a political right written into our Constitution for the purpose of protecting individual citizens from their own government."

What is a political right? Is that the same as an individual constitutional right protected by an independent judiciary? Is it a moral right, a natural right?

This is very serious business. This legislature has to make laws with a full understanding of what the gun lobby really wants and what its problem is, what the courts have rejected, and with an understanding of what the gun lobby's strategy is.


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