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Addressing Gun Violence

G. Eyclesheimer Ernst

Potowmack Institute
asamicus curiae in
US v Emerson (1999)


The Rule of Law

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
Conscription and the Constitution
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

(Refused publication by the New England Journal of Medicine. Submitted February, 1994. It was offered to the American Medical Association to be adapted for publication in June, 1995. No response. Addressing gun violence as a public health problem has developed a following. Gun violence is a public health problem but it does not have a public health solution. Getting effective legislation enacted that brings gun ownership under the rule of law is a political solution. Public health concerns will not carry the arguments. The gun lobby has not been able to win the right to be armed outside of accountability to public authority in court (but not for the want of trying. See ...warin.html, .../pzpet.html). The right is in federal court again in Emerson, Parker, Seegars. Other rulings are in .../silveira.html, and .../nordyke.html.

The gun lobby has to "secure" the right by defeating legislation. The public health strategy to which the New England Journal of Medicine is devoted has given the gun lobby demagogic gifts to defeat legislation. We now see appeals to gun owners that, "You have a disease!" and "Are your guns germs?"

There appears to be what Orwell called an "all prevailing orthodoxy" at work here (.../196intro.html). The centrist foundations that fund the opposition to the rightwing foundations that fund the rightwing movement have apparently decided that they will not support substantive issues that are raised in other Potowmack Institute files. See:
The Rule of Law
What does the NRA want?
Charlton Heston speaks
and have been raised in the Potowmack Institute's amicus curiae briefs in Emerson and Parker , .../parker.html

Finding a constituency that will evade fundamental issues does not seem to be difficult. The public health lobby will compile public health statistics because that is what public health scientists know how to do. The gun control organizations will send their lawyers to court to sue gun manufacturers because that is what their lawyers know how to do. Fundamental issues are not raised or settled. Important questions are not asked and not answered.


Submission:

Recent articles in this Journal have reported the relationship between gun ownership and suicide and accidental shootings. 1 If guns are ordinary consumer items, they are, different from other dangerous commodities, largely unregulated. The absence of standards creates a casual, irresponsible gun culture which is itself a major part of the problem.

Firearms can be effectively regulated only by accountability of ownership which means specifically registration. The only real obstacle to firearm registration is the gun lobby's doctrine of political liberty. The NRA's Sue Wimmershoff-Caplan:

    . . . "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. 2

Wimmershoff-Caplan concedes "needless deaths and injury result," but, as the NRA's Harlon Carter put it, "these are a price we pay for freedom." 3

It is the NRA that gives gun ownership a political character. The doctrine is widely believed. It is not peculiar to the NRA. David Kopel, Second Amendment lawyer, referring explicitly to guns:

    . . . the tools of political dissent should be privately owned and unregistered. 4

Sanford Levinson, law professor, University of Texas:

Through some mystical process all those guns in private hands keep the government under control.

All the NRA's posturing and confusing of the gun issue have the sole policy objective of keeping gun ownership outside of accountability to public authority. The whole crisis in gun violence turns on this one point. It is the one point the gun lobby's doctrine cannot accommodate. In all the attention given the Brady Law, it has not been observed that the objective was achieved. The Brady Law requires all gun sale records to be destroyed in 20 days. 6

The NRA has to confuse the issue because its doctrine has no intellectual validity. It gains political support by promoting gun ownership, then appeals emotionally to gun owners' votes to defeat legislation. The NRA's Wayne LaPierre:

This is the style of a charlatan with an ulterior motive.

Part of the fraud is in the Founders' purported intent. Anyone can read the Federalist Papers. 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 (Shays's, the most famous) that cropped up in the chaotic aftermath of the American Revolution. The most commonly cited 8 words to prove the intent of the Founders are ". . . the advantage of being armed . . ." from Madison's Federalist Paper No. 46. The typical distortion is in the NRA Member Guide:

In arguing for the Constitution's ratification, Madison wrote:

Here the militia is the armed force of state government. The militiamen were armed for the government not against it. Federalist Paper No. 46 and the Second Amendment, also written by Madison, are most interesting in that, insofar as they recognized the right of the states to control their own armed forces, they contained the imperfection in the more perfect union that made possible the Civil War. The Civil War decided the supremacy of federal over state authority. All earlier discussions about arms and militias became historically quaint.

Another part of the fraud is the portrayal of constitutional doctrine. The gun lobby has argued in court for the "unorganized militia" as legal vessel for its doctrine. The courts have explicitly rejected individual right claims, Ninth Amendment unenumerated right claims, and legal status for the unorganized militia. 10 Nevertheless, the NRA's response to any gun law is, "It's unconstitutional." If the gun lobby wants to have its claims, it has to follow the lead of right-to-lifers and establish a judiciary litmus test. Changing the courts is not on the NRA's agenda—and, for good reason. It cannot justify extralegal armed force.

The monopoly on the exercise of armed force, separated from simple gun ownership, defines sovereignty. Government is the administrative apparatus of sovereignty. We put ourselves under the laws of this government so that the authority to exercise armed force is in one place where 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. No matter the corruption we call "politics," the duties of citizenship are to make this system work not point guns at it. There is—can be—no "constitutional design" that includes a contingency of extralegal armed force, organized or unorganized, as a rival sovereignty to the legal institutions of government. No state can share its sovereignty and insure the validity of its laws, the safety of its citizens, or even its own survival. Like death and taxes there is no way out of this one.

Lincoln mentioned a "revolutionary right" to overthrow an unacceptable government. A revolutionary right is a moral right not a constitutional right. Constitutional rights are legal rights defined in law and protected by an independent judiciary. 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. When it came to writing a constitution they had a different purpose. The Constitution is a declaration of governance. Article VI requires all state and federal legislative, executive and judicial officers to take an oath of office to support the Constitution. That oath is an obligation to the rule of law and implicitly denies any right to exercise armed force except as authorized by law. The gun lobby's self-appointed guardians of republican liberty claim such a right—completely without judicial protection—in case legislative and electoral processes produce results "the people"—or, just some people—don't accept. Once this childish concept of citizenship is removed, all else falls into place.

The NRA and Second Amendment flakes can proclaim their childish right. Senators take their oath. Sen. Ted Stevens (AK):

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 legal institutions of government, he has to be expelled from office or we do not have a nation. On that, there can be no controversy.

The NRA and the senator may respond that they mean extralegal usurpations by a tyrant. Hamilton addressed the possibility explicitly in Federalist Paper No. 28:

As the federation was originally conceived, the states, not private individuals, would be the "barrier" against usurpation at the federal level. The cited passages refer explicitly to the oppression of individuals by any and all government. If we give constitutional protection to an individual right manifest in the "unorganized militia," who is to say this contingency of extralegal armed force will not itself become the usurper?

There is a usurpation model. In arguing for the right of "the people" to be armed outside of accountability to public authority, the gun lobby indicates how the Nazis were able to confiscate registered guns in Germany. The gun lobby is never required to give documentation that the Nazis ever confiscated guns. The real lesson to be learned from the German experience is the Weimar Republic's inability to disarm its enemies. Private rightwing armies operated freely in preNazi Germany and were instrumental to the German Right's political triumph. When Adolph Hitler went before the Reichstag, March 23, 1933, to demand emergency powers provided by the German constitution, he brought the Stormtroopers, the Nazi party's private army, into the legislative chambers with him. Hitler ruled by decree with only the appearance of constitutional legitimacy.

The gun lobby also cites examples of when armed citizens have triumphed over tyrannical governments. There are no examples of when a government was ever intimidated by private individuals waving guns. Revolutions are made by revolutionary armies and succeed despite the tyrannical government's prohibitions on private arms.

Addressing gun violence has to begin with the relationship between citizenship and the legal exercise of armed force. We, the people, have to insist that the United States Government function as a government and decide that it is sovereign. We, the gun owners, have to function as citizens and decide that we are loyal to this government and abide by its laws. Our security is to create legal categories of gun ownership that effectively remove guns from the lawless. That is the first reason we have a government. National policy's central requirement has to be the accountability of firearm ownership. The Federal Government does not need to micro-regulate firearms. Registration, reporting of private sales, an amnestied buyback with the force of law, and the subsequent offering of rewards for reporting illegal possession, as primary national measures, can, in the short term, effectively shut down the illegal traffic in firearms. Local communities will then have wide latitude to set and enforce their own publicly agreed upon licensing standards for loyal, law-abiding, responsible gun ownership. Licensing here is distinct from registration. The long term goal should be to reduce the climate of fear the gun lobby cynically exploits to promote gun ownership. No other policy will dent the statistics.

The statistics will continue to escalate. In four years, the Brady Law expires. The gun lobby will be out with its refrain, "gun laws don't work," demanding repeal of existing laws more than opposing new ones.

The political leadership to establish a national firearms policy does not have to redefine citizenship to deny the gun lobby's constitutional claims. It need only affirm the rights and limitations of citizenship already defined in constitutional doctrine. If, by default, the gun lobby's doctrine prevails as national policy because no national policy comes out of Congress, then the sovereignty of the United States Government is in principle compromised: we buy a bullet proof vest and, in the end, put ourselves at the mercy of our local warlord.

1. 10/7/93, p. 1084; 8/13/92, p. 467. text@note1

2. "The Founders and the AK-47," Washington Post, July 6, 1989, p. A17. text@note2

3. "Report of the Proceedings," House of Representatives, Subcommittee on Crime, October 1, 1975, at 1221, quoted in Sugarmann, Josh, NRA: Money, Firepower, Fear, National Press, 1992, p. 45. text@note3

4. "Trust the People: The Case Against Gun Control," Cato Institute Policy Analysis, No. 109, July 11, 1988, p. 25. text@note4

5. "The Embarrassing Second Amendment," Yale Law Journal, Fall, 1989, p. 651. text@note5

6. "Provisions of the Brady Act, (PL103-159)," Fact Sheet, NRA Institute for Legislative Action, Sec. I.D and VI.A. text@note6

7. "Action Fact Sheet: Instant Background Checks in Virginia," NRA Institute for Legislative Action. text@note7

8. For starters: The Washington Post, 11/10/90, p. A28; 3/21/91, p. A21; 12/22/93, p. A23. text@note8

9. NRA Member Guide, p. 4, published as an insert in the March, 1991, American Rifleman. text@note9

10. US v. Francis J. Warin, 530 F.2d 103, US Court of Appeals, Sixth Circuit, 1976. text@note10

11. Congressional Record, November 19, 1993, p. S16315. text@note11


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