Holders of public office are under oath of public office. That oath marks the difference between civil society and the State of Nature. Members of congress take an oath to preserve, protect and defend the Constitution against all enemies foreign and domestic. They have a high obligation to those who do not entertain insurrectionist fantasies. Some of us would rather bear those ills we have than fly to others we know not of especially when served up by "armed citizen guerrillas"
In entertaining insurrectionist fantasies, the gun lobby maintains an enormous confusion between citizens bound by law in civil society, political community, whatever we call it, and individual sovereigns in the State of Nature which is the state of anarchy.
One expression among gun rights advocates is that an armed society is a polite society. We can know, as the Founding Generation knew, from John Locke that sovereign states exists in the State of Nature in their relationships with one another. Sovereign states have developed elaborate rules of diplomacy so their signals are not misunderstood. Diplomacy is very polite, but because sovereign states recognize no higher authority when difference become irreconcilable and communication breaks down, sovereign states go to war.
Do the people have a right to take up arms to defeat oppressive government as Wayne LaPierre unabashed proclaims? Yes, they certainly do, but it is a right in the State of Nature, outside of political community, not a civil right secured by government. Oppressive governments are defeated by revolutionary armies not by yahoo individualists with a gun fetish. The right to defeat oppressive government requires a critical mass of support with some possibility of success. Treason only become patriotism when successful.
Our political society and political system come from somewhere. The 500 year sweep of political history has been the subordination of feudal barons with their private armies to a centralized military command in nation states. There has been a parallel subordination of private violence to the rule of law. Nation states are the vessels for the rule of law. The rule of law, the state's monopoly on violence, and the state's internal sovereignty all mean the same thing. A sovereign gives law. A sovereign does not accommodate to a law giving authority. A state is sovereign, inside and out. Regular elections, a bill of rights, separation of powers are restraints on sovereignty, but sovereignty is absolute. There can be no rival sovereignty. Or, can there be? Are we in regression?
What the gun rights militants want, is what the National Rifle Association argued in its amicus brief to the Supreme Court in Perpich et al. v. DOD (released 1990): the right to maintain the militia as the "armed populace at large," a collection of sovereign individuals who made a treaty, as sovereign states make a treaty, not a government. It is a right to maintain a rival sovereignty. It is ultimately a right of insurrection what the Constitution defines as treason. It is a right that can never be had under any viable concept of constitutional government. The NRA made that argument in an amicus brief. If was a nice try, but the Supreme Court ignored the point. The Supreme Court, reprehensibly, passed on the opportunity to repudiate the anarchic doctrine for all time. The NRA has never made the argument in court in challenge to an enacted law. The courts are the only place that matters in deciding the contours of civil rights enumerated in the Bill of Rights. The NRA will have its treaty made by sovereign individuals anyway by defeating legislation. It defeats legislation with demagoguery. The demagoguery makes for much cynical, small minded, obstructionist politics. Any deviation from the party line and the deviant has to be viciously attacked. If there is any crack in the fallacious constitutional facade, the whole fallacious constitutional edifice comes crashing down.
We start with sovereignty. What follows from sovereignty is simple and obvious. If at first we don't succeed, read the instructions. The Founding Generation understood from John Locke's The Second Treatise of Civil Government that there is a difference between political community and the State of Nature which is the state of anarchy. Anyone who does not understand the difference is, in the words of Locke, a "Patron of Anarchy".
Not the demagoguery and not anything else in our present political discourse tells us there is a difference between a treaty and a government. Charles DeGaulle once said, "Treaties are like roses and young girls; they last while they last." Abraham Lincoln said in his First Inaugural, "Perpetuity is implied if not expressed in the organic law of all national governments." Regardless of how widely it is believed, there cannot be, as the gun rights militants claim, a constitutionally protected civil right, secured by government (the courts), to maintain the "armed populace at large," with all its insurrectionist implication. There is not at least so far, such a constitutionally protected civil right. The very suggestion is the height of political cynicism. We pay an enormous price in blood for the success of the political cynicism.
The cynicism and the contradictions know no bounds. The NRA does not want gun rights cases it does not control in court. It worked unsuccessfully to control and sabotage the true believing Cato lawyers' pursuit of Parker et al. v. DC Gov. (filed in US District Court, DC Circuit, Feb. 2003, released March, 2007). Search "battle gun ban". After many pages in which Judge Silberman attempted to disparage the original civic purpose and invent out of the "penumbra" and "emanations" of the Constitution a libertarian privacy right to gun ownership, he completely contradicted himself by arriving at the original civic purpose that we can have "registration ... for militia service if called up". That means we can have conscription. The ultimate power of a state is its own self-defense. When public necessity demands, we will have conscription, the "armed populace at large" not withstanding.
The state's self-defense is its external sovereignty. It also has to maintain its internal sovereignty. Politics takes on a different dimension. Let us understand something. Politics is the substitute for violence. There has to be a civic purpose for the instruments of lethal force; And, registration subjection to a governing authority, what the NRA works hardest to prevent is the only way that civic purpose can be defined and effectively regulated. And, AND, no one has to give up anything anyone already has in constitutional doctrine.
As much as the NRA wraps itself in the recent gun rights cases, Judge Silberman's conclusion is a devastating defeat for the NRA's core doctrine. Nothing in subsequent Supreme Court gun rights rulings overturns Judge Silberman's conclusion. The courts have validated the legitimacy the sovereignty of a governing authority. Federal judges are still under oath of public office. The Constitution is still a frame of government. All that is missing is political leadership. But, what do we have? The courts, reprehensibly, give us no instructions. It illustrates how far the political culture has degenerated that in pandering to a malignant constituency the courts, without accountability, recklessly enter into the false polarization of a progun/anitgun culture war and create a confused constitutional mess.
But, we can clear up the confusion very easily: the state's ultimate "just power" is the power of conscription. We do not now have a public necessity for conscription, but Judge Silberman and the Supreme Court have left open the possibility. If public necessity ever demands conscription, the legislatures will act, as they have in the past, the courts will stand aside, as they have in the past, and we will have, like it or not, conscription again. Public sentiment be damned.
And, there has always been conscription. The Militia Act of 1792 was a conscription law albeit enforced by the states. The operating concept was civic obligation. The purpose was military preparedness. Short of outright conscription, civic obligation and military preparedness can be the basis of firearms policy now. Civic obligation and military preparedness begin at the point of gun acquisition. If the purpose is military preparedness, there have to be standards. Let the "armed populace at large," if there is public sentiment for such a thing, also be damned.
The constitutional authority for gun registration is right there in the militia clauses of the Constitution, the Second Amendment (as Judge Silberman seems to understand), and the opinions of the courts. Militia duty in the early Republic was conscript duty. The Founders did not create government at the mercy of insurrectionists.... (The NYTimes can carry on from here.)
History does not repeat itself but there are recurrent themes. There is a historic precedent.