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The Armed Citizen and the Rule of Law

(Refused publication by the New York Times Magazine. Submitted April 7, 1995. Timely, but the SASE was not returned. It was also sent to Michael Lind at Harper's Magazine and Diane Rehm at WAMU now on NPR. No word from them either.)

Potowmack Institute
asamicus curiae in
US v Emerson (1999)


The National Rifle Association
What does the NRA 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

When I can lie in bed at night and hear gunfire in my neighborhood I have to wonder if that kind of breach of the public peace is, as the gun lobby claims, inherent in the constitutional design of American political liberty.

The gun lobby insists that the intent of the Framers of the Constitution in the Second Amendment was to create a private contingency of extralegal armed force, called the "sedentary" or "unorganized" militia, which would function as a "barrier" (— word from Federalist Paper No. 46) against tyrannical government. The gun lobby's individual right-to-arms serves to maintain this militia and is the cornerstone of a doctrine of political liberty. To fulfill its purported purpose the sedentary militia has to be armed outside of accountability to public authority. The gun lobby's posturing has the sole ultimate policy objective of keeping gun ownership outside of accountability to public authority so it can have this doctrine. The whole crisis in gun violence turns on one point--accountability. No accountability means no rules and regulations for guns or gun ownership.

In "Among the Gunnies," New York Times Magazine, September 11, 1994, Philip Weiss, hints at bringing this doctrine up for scrutiny. Weiss describes "personal sovereignty" and the gun lobby's "mistrust of public authority." "Personal sovereignty" means an absolute individual right. One of the gun lobby's persuasive appeals is to personal self-defense, but "mistrust of public authority" leads to, as Weiss reports, the gun lobby's "broadest notion of self-defense--defense from one's own government." Weiss describes one gun owner who went so far as to tell a House subcommittee that the Second Amendment was about our right "to protect ourselves from all of you guys."

The doctrine has been proclaimed in other more conspicuous places but has been unexamined. In his failed Senate campaign, Oliver North declared that we should be armed to protect ourselves "...if necessary, from the tyranny of our own government." The Washington Post reported these words August 4, 1994 (p. B1), and repeated them in an editorial on August 6, 1994, without comment that to take up arms against one's own government is a crime.

The doctrine has had fuller more serious expression. In the aftermath of the Tiananmen Square tragedy, Sue Wimmershoff-Caplan, a member of the National Rifle Association's National Board, wrote in "The Founders and the AK-47," Washington Post, July 6, 1989 (p. A17):

    . . . "you can never tell about governments," this is precisely what the Framers of the American Constitution believed. Detailed and sophisticated public discussions were led by Alexander Hamilton and James Madison in 1787-88 on the inclinations of all governments to keep expanding their prerogatives . . . (Federalist Papers Nos. 12, 19, 28, 39, 46 and 48). . .

[Privately owned firearms] would. . .function as a "barrier" (Federalist, No. 46) against governmental acts that might provoke armed rebellion. . .

. . . [and are] within the constitutional design for a counter to government run
amok . . .

Twentieth-century military machines are far from invincible when outflanked by armed citizen guerrillas.

Wimmershoff-Caplan conceded "needless deaths and injuries do result," but these are "the price of liberty."

In "Trust the People: The Case Against Gun Control," Cato Institute Policy Analysis No. 109, 1988, referring explicitly to guns, David Kopel, Second Amendment lawyer, wrote (p. 25):

The gun lobby has embraced Sanford Levinson, law professor, University of Texas, as high intellectual authority. In "The Embarrassing Second Amendment," Yale Law Journal, Fall, 1989 (p. 651), Levinson wrote: Through some mystical process all those guns in private hands keep the government under control.

To enlighten myself on "constitutional design," I followed Professor Gingrich's instructions and read the Federalist Papers. The doctrine of political liberty the gun lobby reads into the Second Amendment does not fare well in the Federalist Papers.

The most ubiquitous words to prove the Founders' intent with regard to gun rights are from James Madison's Federalist Paper No. 46. The gun lobby's armed populace doctrine is built to a large degree on one paragraph. In his recent book, Guns, Crime, and Freedom, the NRA's Wayne LaPierre quotes words from this paragraph out of context four times. LaPierre lists 32 law review articles to support his individual right case. Thirteen of the 24 articles I have consulted quote this passage out of context. Here the words are in usual misrepresentation from the NRA Member Guide, American Rifleman, March, 1991 (insert):

The Federalist Papers were political polemics to encourage ratification of the Constitution, to which there was strident opposition. Many feared a strong central government would come to resemble the British colonial administration recently removed or would in time eclipse the sovereignty of the states. Madison wrote:

The critical words in context support, not the gun lobby's individual right, but the collective or state right, which is the standard judicial interpretation of the Second Amendment. The militia, commanded by officers, was the armed force of state government. In context, the words describe a balance of power between state government and federal government not "armed citizen guerrillas" and any and all government. In Federalist Paper No. 28, Hamilton was more explicit: Here "the people at large" are distinctly inferior to the state authorities.

In No. 28, Hamilton goes so far as to deny the people even the capacity to resist tyranny:

The gun lobby's doctrine cannot be found in Nos. 12, 19, 39, or 48 either. The doctrine is a strictly modern invention.

This Republic's Founders were experienced, sophisticated political men. They did not create government at the mercy of insurrectionists. The immediate purpose for writing a constitution in 1787 was to create a strong government which had the capacity, among others, to suppress the numerous rebellions that cropped up in the American Revolution's chaotic aftermath. Shays's Rebellion in Massachusetts is the most famous and was then the most alarming because the militia refused orders and went over to the rebels. In Federalist Paper No. 25, Hamilton, reflecting on Shays's rebellion, regarded "military force in time of peace essential to the security of the society." In a "struggle with public necessity"-- Hamilton's words--political authority is not guided by childish fantasies about "armed citizen guerrillas." Nothing has changed in that regard in 200 years.

The courts have not been enchanted with the fantasies either. One would never know from public discourse but the gun lobby has argued its doctrine in court and lost. What the gun lobby believes the Founders intended and the Second Amendment guarantees amount to nothing. The reality is what the courts have decided. The most comprehensive Second Amendment case is US v. Francis J. Warin, US Court of Appeals, Sixth Circuit (530 F.2d 103, 1976). The Second Amendment Foundation's amicus curiae brief in the Warin case contains the preposterous statement: "What [this] Amicus asserts is a basic right of freemen to take up arms to defeat an oppressive government." This was argued, mind you, in federal court. The US Court of Appeals explicitly rejected individual right claims, Ninth Amendment unenumerated right claims (right to privacy), and legal status for the sedentary militia (those "freemen"). The Supreme Court let the ruling stand. The Warin case judges went on to explain that even fundamental First Amendment rights, those that have been incorporated into Fourteenth Amendment due process protection, are not absolute. They pointed out that, if you want peaceably to assemble, the Supreme Court has decided that, in the interest of "ordered liberty," it is in the powers of legislatures to "abridge" the right by requiring parade permits.

The courts had not been at work in the 18th century and arguably the Framers of the Constitution had no clear concept of what we know as rights. Natural rights, not civil rights, were prominent in 18th century consciousness. Much remained to be worked out between rights and the State.

A natural right-to-arms creates problems. Even in the 18th century, the right's purpose was unclear. In the spirit of the Revolution, the right-to-arms was proclaimed as a defense against tyranny. Article 1, Section 8, of the Constitution, however, provides that Congress shall have power "for calling forth the militia to enforce the laws of the Union, suppress insurrections and repel invasions." In the gun lobby's own quotes, the right extended only to "peaceable" citizens and those not "in actual rebellion." The context of the language from the 18th century was the archaic institution of the militia. Implicit in the right-to-arms was the obligation to serve in the militia.

Certainly after the bad experience with a British government in which they had no representation, the American Revolutionaries had apprehensions about putting themselves under an untried government. We, however, have 200 years experience with this government. We also have behind us 200 years of history, constitutional doctrine, and habits of political loyalty.

What the 18th century understood as natural rights became more clearly defined in the 19th and 20th centuries as civil rights or constitutional rights. Weiss quotes LaPierre that the right-to-arms is "a birthright confirmed for us by the Constitution. It was ours from the moment we were born beneath these heavens." What LaPierre tries to define is a natural right or moral right. Moral rights are not constitutional rights. When right-to-lifers gun down abortion doctors they righteously exercise a moral right, but it has no constitutional protection. In his First Inaugural Lincoln mentioned a "revolutionary right" to overthrow an unacceptable government but then denied it to the secessionists. A revolutionary right is a moral right. The signers of the Declaration of Independence exercised a moral right. They knew they were also signing a declaration of war and if they failed in their revolutionary project they would all be hanged.

The Constitution is a declaration of governance. Constitutional rights are legal rights defined in law and protected by an independent judiciary--that is, by the sanctioning authority of the State. The State is not tangible. It is composed solely of its citizens' political loyalty. The citizen validates the State with political loyalty. The State validates the citizen with guarantees of rights. Political loyalty becomes as much an essential ingredient to domestic tranquility as public authority. It is on political loyalty that the gun lobby's childish concept of citizenship runs afoul.


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Political loyalty is to a State. Arguably, the Framers of the Constitution had an even less clear concept of what we know as a sovereign nation-state. Madison had set out to establish the supremacy of federal over state authority but the result was ambiguous. The Constitution was the best that could then be achieved politically. The Federalist Papers describe a confederation of sovereign states. Federalist Paper No. 46 and the Second Amendment, also written by Madison, contain the imperfection in the more perfect union that made possible the Civil War. Lincoln had a clearer concept of sovereignty in his First Inaugural and prosecuted it to a conclusion at Appomattox Court House.

Lee's surrender decided the supremacy of federal over state authority and defined the United States as a sovereign nation-state. The monopoly on the exercise of armed force, separated from simple gun ownership, defines sovereignty. Even without a clear concept of a modern nation-state, the Founders of the Republic understood that a State's capacity to exercise armed force is, as the gun lobby would have it, a malignancy. They provided restraints on sovereignty. Due process of law, a bill of rights, separation of powers, checks and balances, and regular elections are restraints on sovereignty. The gun lobby's contingency of extralegal armed force, all those guns in private hands, is not a restraint on sovereignty: it is, rather, a rival sovereignty. No state can share its sovereignty and insure the validity of its laws, the rights of its citizens, or even its own survival.

Government is the administrative apparatus of sovereignty. A law enacted by a legislature, enforced by an executive, and interpreted constitutional by a judiciary is authority to exercise armed force. We put ourselves under the laws of this government so that the exercise of armed force is authorized by law; it is restrained and ultimately accountable to the people through democratic processes. Lincoln put it in his First Inaugural: "A majority held in restraint by constitutional checks...is the only true sovereign of a free people." The other choices are anarchy and despotism.

Citizenship is a very ethical proposition--and, with regard to armed force it is unconditional. Law-abiding means we do not reserve the capacity to take up arms in case electoral, legislative, or judicial processes produce results "the people"--or, just some people--don't accept. Law-abiding also includes abiding by how the courts interpret the laws. When the courts interpret the laws they also interpret the Constitution. The Constitution would be perverted if it guaranteed a right to take up arms against itself. No matter the corruption we call "politics," the ethical nature of citizenship and the interdependency of rights and the State require that we make this system work not point guns at it.

Do freemen still have a moral right to take up arms to defeat an oppressive government? Absolutely. But, as the Second Amendment Foundation's amicus brief concedes, the threshold should be very high--"in extremis." The dispute has to be over how high. How much at the mercy of insurrectionists and the lawless do we want to be? How much do we rather bear those tyrannies we have than fly to others we know not of?

Other than the Civil War, pointing guns, even as a childish fantasy, has not been a method by which political insurgents influenced the system. After the Civil War, populism was a potent political force. Populism viewed "the people" and the Constitution as endowed with virtue. Populism had faith that a sovereign government, which it sought to influence and control, could apply the law to parasitic, conspiratorial elites who oppressed the people. The elites were the trusts and robber barons in the private sector. The gun lobby's doctrine is in the populist tradition. However, with the gun lobby now finding the parasitic, conspiratorial elites in the government, the populist tradition takes a malignant and troubling turn which brings into question the rule of law itself. The gun lobby's premise is that government will always be incompetent and malevolent and "the people," above scrutiny and armed outside of any accountability to public authority, will always be virtuous. The premise demands much on faith. The capacity to exercise armed force is a malignancy wherever we find it. Hamilton and Madison were not so naive. In Federalist Paper No. 51, Madison wrote,

In No. 25, Hamilton wrote, To be armed outside of the law is to be armed above the law and is a cause for suspicion. The gun lobby's dishonest quotes and repudiation of court decisions is hardly the work of angels. Then there are the tendentious historical omissions in LaPierre's law reviews.

For the gun lobby and its fellow travelers history mostly stopped in the 1790s. There is scant mention of the Civil War. The Civil War was a rebellion consistent with what the Federalist Papers envisioned. Need I point out again that the Rebels lost. There is no consciousness that there was ever an industrial revolution. There is no mention of Karl Marx's reserve army of the unemployed or the Nazi Party's Stormtroopers, an extralegal militia. The Stormtroopers, who certainly thought themselves "the people," and the Communist Party's Red Front Fighters' League, who also thought themselves "the people," fought gun battles with each other in German cities in the early 1930s. Nazis confiscating guns is a favorite gun lobby theme, which Weiss mentions, but it is another specious point. The gun lobby is never required to give evidence that the Nazis ever confiscated guns. The real lesson from the German experience was the Weimar Republic's inability to disarm and disband its enemies. When Adolf Hitler went before the Reichstag, March 23, 1933, to demand a constitutional amendment that would give him dictatorial powers, he brought the Stormtroopers into the legislative chambers with him. The Nazi Party's "armed citizen guerrillas" made sure the legislators knew how they were expected to vote.

Today the right of the people to keep and bear arms would have to include extralegal armed force maintained by the Ku Klux Klan, the Nation of Islam, and organized crime. The gun lobby wants an individual right for its loyal, law abiding gun owners so they can protect themselves from the malignancy of government. The rest of us depend on the malignancy of government to protect us from "armed citizen guerrillas" and from the anarchy, paramilitarism, and vigilantism implicit in the gun lobby's doctrine. To whom, pray tell, does this government think it is beholden?

A government can only insure domestic tranquility when there is common agreement on sovereign public authority. Without that we are at war with each another. We do not yet have a Weimar or Yugoslavian political disintegration, but the American experience with gun violence illustrates the destructive results when a doctrine of "personal sovereignty" becomes, by default, the national firearms policy because no policy comes out of Congress.

Something can come out of Congress. The question is, what do we want? or, rather, how high the threshold? The basis for an effective, workable firearms policy can be found ironically in LaPierre's law reviews. A careful reading of the articles reveals that the gun lobby itself is not of one mind on gun ownership issues. Donald B. Kates, Jr., a prominent Second Amendment lawyer, writes, "Colonial and subsequent militia law required virtually every male of military age to appear periodically with his arms for inspection. Therefore, . . .[I conclude] gun registration and licensing are not per se repugnant to the second amendment." Kates' intellectual honesty that the militiamen were armed for the State not against it is an abomination to gun lobby extremists. Registration means accountability of ownership. A national firearms policy based on accountability of ownership and the reporting of private sales would have the immediate objective of shutting down the illegal traffic in firearms so as to enable local communities to set and enforce their own publicly agreed upon legal categories for loyal, law-abiding gun ownership. Registration means registration of all firearms. Debates on which types of guns would be a gun lobby diversion. The policy would define a much needed clear mission for federal authorities.

To be effective the policy would have to include a grace period with an amnestied buy-back. The long term goal should be to reduce the climate of fear the gun lobby cynically exploits to promote gun ownership. Only the Federal Government can establish this policy. It is the only major function the Federal Government need perform. It is the only policy that will make a difference. If the gun lobby objects that registration will enable the malignancy of government to confiscate guns, the response has to be, we need to confiscate guns from the lawless and the disloyal, and we want any confiscating to be conducted as authorized by law and not conducted by "armed citizen guerrillas."

Registration in this scheme is separate from licensing. The Federal Government does not need to microregulate guns. Licensing would be a local issue determined by local needs. Some states would do no more than comply with federal law. States could still guarantee a constitutional right under their state constitutions. Gun owners would then have their individual right sanctioned by state government. What they will not have is the fantasy.

The only credible objection to accountability of ownership is the gun lobby's doctrine. Defeated in the courts the gun lobby is left with having its doctrine by defeating legislation. To defeat legislation it has to promote gun ownership so it can appeal to gun owners' votes. LaPierre's book is part of the strategy. Only when the gun lobby's problem and its strategy are understood does its posturing and twisted reasoning make sense. Making accountability of ownership the issue makes the gun lobby's doctrine the issue. Defeating the gun lobby's doctrine requires defeating its appeal.

The gun lobby's biggest appeals are to recreational uses and self-defense both of which could be accommodated under accountability of ownership. The self-defense appeal is important because the appeal is irrational. The gun lobby is able to promote self-defense because it is able to instill in the public consciousness the almost universally held mindless convictions that gun laws don't work and rules and regulations are a ban: "If guns are outlawed, only outlaws will have guns." If the only choice is between an absolute right and prohibition/confiscation then gun laws won't work. The security of gun owners, however, does not follow from these convictions. The security of gun owners is not to possess guns for personal self-defense but to create legal categories of gun ownership that can effectively remove guns from the lawless. Accountability of ownership is a policy gun owners can support because it is in their interest. To support that policy gun owners have to function as did the 18th century militia and decide that they are loyal citizens of this government, abide by its laws, and share in its destiny.

Legal categories of gun ownership have to be decided in the political process. "Gun laws don't work" is a gun lobby diversion because constructive participation in the political process poses serious difficulties for its doctrine. The doctrine cannot survive scrutiny and the ethical attitude of "personal sovereignty" cannot accommodate unfavorable political results.

Addressing gun violence isn't, as many seem to assume, a great unsolvable problem where nothing can be done. It is not a matter of "ban guns" as the gun control organizations and the Clinton Administration propose. The gun lobby needs "ban guns" for its demagogic appeal. LaPierre uses "gungrabbers" and "gunhaters" throughout his book. Rules and regulations are not a ban. There is no outright ban on machine guns.

Addressing gun violence is a matter of bringing gun ownership under the rule of law. That requires renewing the meaning of citizenship in American political culture. National firearms policy needs to be added to Professor Gingrich's "Renewing American Civilization" curriculum. We do not need to redefine citizenship to deny the gun lobby's Second Amendment claims. Renewing American civilization requires affirming the relationship between citizenship and the legal exercise of armed force that is already defined in constitutional doctrine. Affirming the rights and limitations of citizenship requires getting beyond the gun lobby's obfuscation of the problem--a great cultural divide where gun-hating urban elites persecute innocent, law-abiding gun owners-and raising real issues.

Introducing real issues can begin with constitutional doctrine. What the courts have decided is the gun lobby's biggest bluff. Short of taking up arms, if the gun lobby does not like what the courts have decided, it has to follow the lead of right-to-lifers and launch a political campaign to change the courts. The bluff can be conspicuously called by putting to candidates in the 1996 campaign the simple question: Would you, as president, nominate justices to the Supreme Court who are committed to incorporating the Second Amendment into Fourteenth Amendment due process protection? A "no" repudiates the gun lobby. A "yes" or an equivocation would invite follow-up questions on the function of extralegal arms that could make any public official eligible for impeachment.

Another real issue could be provocatively raised by requiring the Senate to police itself. In his book, LaPierre can describe the United States government in terms little less menacing than the Wehrmacht occupation of Warsaw. Members of Congress, however, take an oath of office. That oath is the obligation to the rule of law. 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," Congressional Record, Nov. 19, 1993, (p. S16315). No one has inquired into the Senator's meaning. One person's oppression is another's proper exercise of public authority to enforce democratically enacted law. Jaywalkers regard laws against jaywalking oppressive, the KKK laws against racial exclusion. If the senator is asserting the right of private interests to resist under arms the laws of this government he has to be expelled from office. On that there can be no controversy.

When the real issues are raised, support for national firearms policy will involve gun owners and two other natural constituencies. One is minorities. Minorities are the primary victims. Despite the gun lobby's promotion of minority gun ownership so it can appeal to their votes, minorities cannot make the gun lobby's insurrectionists claims any more than could the Civil Rights Movement, studient radicals in the 1960s or labor militiants in the 1930s. The consequences would be serious. Imagine if Minister Farrakhan were making speeches using the exact same words as Oliver North and Sen. Stevens. National minorites are local majorities in many jurisdictions. It is the Federal Government's business to empower local jurisdictions to maintain their sovereignty. To that end, shutting down the illegal traffic in firearms is a federal responsibility.

The other constituency is businesses. Businesses bear most of the economic cost--probably in the 100s of billions--of gun violence. The tourist and insurance industries suffer greatly. Businesses are largely not involved. Once they realize that firearms regulations are not a silly political issue like prayer in the schools, that what motivates the gun lobby is rather preposterous, that the costs are not something they have to pay as part of "constitutional design," and see that here are very simple, effective solutions which everone but the lunatic fringe can support there will be calls for actions. Armed robbery is one thng, but when shopkeepers, bankers, and travel agents see Oliver North leading "armed citizen guerrillas" to outflank this government, they call "911" like anyone else. Members of Congress are ultimately bound by the oath of office. With Republicans in control of Congress and Republicann business people demanding action, the gun lobby will have no place else to go.

Arriving at a national firearms policy based on accountability of ownership has to provide a rationale and build a consensus through public discourse because the policy has to make sense and enjoy wide support so that it will be efforceable and effective. There are, after all, personal sovereignties who will prefer to go down Branch Davidian style rather than accommodate to public authority under democratic, constitutional government. In the process we might raise consciousness on the obligations of citizenship and the role of sovereign public authority that is essential to the success and survival of this nation.


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