The Honorable John Ashcroft
US Attorney General
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Ashcroft:
My letter to you of August 31 raised the most vital issues of law, government, and citizenship. Extraordinary events of September certainly have diverted your attention and have made these concerns less urgent for the moment but they are as vital as ever and they are not going away. On October 16, the US Court of Appeals, Fifth Circuit, came out with a ruling in the case of US v. Emerson. The three judge panel reversed the district court's dismissal on Second Amendment grounds of Emerson's indictment under the Lautenberg Act, but, nevertheless, Judge Garwood writing for the panel took the opportunity to add to the judicial record a completely gratuitous obiter dicta that represents a very reprehensible politicization of the federal judiciary. The present circumstance has made the leadership role for the Attorney General more vital and has also created opportunities to apply an elevated public spirit to a public purpose.
Judge Garwood's opinion seeks to find a right to be armed outside of any militia context. This is the individual right the National Rifle Association wants, but for the NRA it is not just the right to be armed outside of any military or militia purpose but a right to armed outside of any legally authorized or permitted purpose. It is the right to individual sovereignty. Although a compelling purpose has yet to be demonstrated, private individuals can have an individual right to gun ownership all they want right up to the point of the right to individual sovereignty. There can be no right secured by government to individual sovereignty. The right to individual sovereignty manifests itself in the "armed populace at large," which is, as I pointed out in my letter of August 31, what the NRA argues for explicitly in briefs its has filed in other cases in federal court ( http://www.potowmack.org/nraperp.html). Individual sovereigns by definition do not consent to be governed. They make a treaty not a government. The Fifth Circuit would have needed to look no farther than our amicus brief in Emerson, http://www.potowmack.org/emerarg.html, to find adequately stated the incompatibility between citizenship under constitutional government and individual sovereignty, or between civil society and anarchy.
The NRA cannot win the right to be armed outside of the law in court. It still has not won that right, but Judge Garwood's opinion, with no force in law, will be used with great demagogic effect to maintain that right by defeating legislation. There is nothing new here. The January, 1982, Senate Judiciary Committee report "The Right to Keep and Bear Arms," http://www.2ndlawlib.org/other/other/senrpt/, is known to have been written with the collusion of NRA operatives. The NRA uses it to great demagogic effect to defeat legislation. Since your May 17th letter to the NRA reads so much like an NRA tract, the question can be legitimately raised whether it was also written with the collusion of NRA operatives. Its delivery did coincide with the NRA's convention. A revelation from you in this regard would be in the public interest. Judge Garwood's opinion also reads so much like an NRA tract that the question can be legitimately asked again if NRA operatives did not also collaborate in its composition. If so, it would be a serious matter of judicial impropriety. The NRA has to rely on public relations stunts, demagoguery and fraud to have the right it cannot win in court. The strategy is a formula for cynical, small-minded, obstructionist politics. Judge Garwood's Emerson dicta is more of the same.
Judge Garwood's opinion has already been proclaim under one title as, "A Big Win for the Insurrectionists," http://www.saf.org/pub/rkba/Legal/EmersonDecision3.htm. Are federal judges, under oath of public office to preserve, protect and defend the Constitution against all enemies foreign and domestic, in the business of giving "wins" to insurrectionists? Does the Attorney General serve this same purpose?
Regardless of the demagogic effect, it is still nevertheless true, as we pointed out in our amicus brief in Emerson, http://www.potowmack.org/emerarg.html#fp46, that James Madison, Patrick Henry, and Joseph Story were not describing a civil right of private individuals to be armed outside of the law and certainly not a civil right to individual sovereignty or insurrection. It is abundantly clear from the history of the early Republic that the militia clauses of the Constitution, the Second Amendment and the Militia Act of 1792 (our Appendix C, http://www.potowmack.org/emerappc.html) were about the disposition of military force in the early Republic. None of the political figures, observers or commentators in the early Republic who are the sources of the long lists of quotes, http://www.potowmack.org/thequotes.html, which abound in gun lobby pseudoscholarship, on the internet, in your letter and in Judge Garwood's opinion when taken in context and in the context of their time support a civil right of private individuals to be armed outside of the law. None of these objected to the inventory requirement of the Militia Act, http://www.potowmack.org/milret.html, which was on the books, although not always enforced, throughout the nineteenth century. Whatever individual right there was was not a right to be armed outside of the knowledge and reach of law and government.
Judge Garwood gives exactly three examples of language to fabricate the notion that to "bear arms" was commonly used to mean general, nonmilitia purposes. We gave the Fifth Circuit hundreds of examples that to "bear arms" was overwhelmingly used in an unambiguous military context (see our Appendix A, http://www.potowmack.org/ emerappa.html). One example he gives is "bear a gun" which does not convey the figurative meaning. Another from the Pennsylvania ratifying convention is of the most marginal significance. Both were rejected for placement in documents of fundamental law. The third is from Noah Webster's dictionary. We might hope that federal judges have some concern not to make themselves into laughing stocks:
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A similar indication that "bear arms" was a general description of the
carrying of arms by anyone is found in the 1828 edition of Webster's
American Dictionary of the English Language; where the third
definition of bear reads: "[t]o wear; to bear as a mark of authority or
distinction, as, to bear a sword, a badge, a name; to bear arms in a
coat."
We conclude that the phrase "bear arms" refers generally to the carrying or wearing of arms. It is certainly proper to use the phrase in reference to the carrying or wearing of arms by a soldier or militiaman; thus, the context in which "bear arms" appears may indicate that it refers to a military situation, e.g. the conscientious objector clauses cited by amici supporting the government. However, amici's argument that "bear arms" was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected.
Webster's "to bear arms in coat" in NRA literature means to carry a concealed weapon in a coat pocket. As many times as the real meaning has been pointed out, the NRA's Stephen Halbrook continues to read the preposterous meaning into these words. He may have been Judge Garwood's source. Halbrook cited them again, more selectively than Judge Garwood, in his amicus brief for the Texas Justice Foundation, http://www.potowmack.org/emertjf.html#webster:
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Noah Webster, a prominent federalist, defined "bear" as "to carry" or
"to wear. . . as, to bear a sword, a badge, a name; to bear arms in a
coat." Webster, An American Dictionary of the English Language (1828).
"To bear arms in a coat" typically meant to carry a pistol in a coat for
self defense.
Arms in Webster's definitions include "war," "hostilities," and "the ensigns armorial of a family." One definition of coat is "that on which ensigns armorial are portrayed; usually called a coat of arms." Properly read the definition would convey: "bear arms in a coat [of arms]." The full text of Webster's definitions are enclosed. We provide them for all to see at http://www.potowmack.org/noahweb.html. Judge Garwood nevertheless gives his endorsement to this absurdity. It remains to the Fifth Circuit en banc to remove it from the record.
It does not get any better. No matter how abundantly the amici in support of the government made clear that James Madison in Federalist Paper No. 46 was not describing a personal or civil right of private individual to be armed outside of the law, outside of any legally authorized or permitted purpose, Judge Garwood still misrepresents the words to serve another purpose:
And, "Militia," just like "well-regulated Militia," likewise was understood to be composed of the people generally possessed of arms which they knew how to use, rather than to refer to some formal military group separate and distinct from the people at large.(36) Madison also plainly shared these views, as is reflected in his Federalist No. 46 where he argued that power of Congress under the proposed constitution "[t]o raise and support Armies" (art. 1, § 8, cl.12) posed no threat to liberty because any such army, if misused, "would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands" and then noting "the advantage of being armed, which the Americans possess over the people of almost every other nation," in contrast to "the several kingdoms of Europe" where "the governments are afraid to trust the people with arms." The Federalist Papers at 299 (Rossiter, New American Library). Plainly, Madison saw an armed people as a foundation of the militia which would provide security for a "free" state, one which, like America but unlike the "kingdoms of Europe," was not afraid to trust its people to have their own arms.(37)
See enclosure,
http://www.potowmack.org/brock.html#fp46,
http://www.saf.org/CenterToPreventHandgunViolencebrief.htm, §II, A
http://www.potowmack.org/emerarg.html#fp46,
http://www.potowmack.org/emerappi.html#fp46, and
http://www.potowmack.org/yass.html#fp46.
Federalist Paper No. 46 was also an issue producing some discussion in your confirmation hearings, http://www.potowmack.org/resource.html#jash. This is not a matter of interpretation. It is a matter of getting it right. Getting it right requires much broader public scrutiny than seen so far. You can get it right and find opportunity to lead on a vital matter.
The Federalist Papers meanwhile did not, no matter how lofty and insightful, intend to formulate high principles of political theory. They were political polemics to encourage ratification of the Constitution. Militia duty was conscript duty. To refuse the call to duty was a crime and would continue to be a crime under the new government. An acquaintance with the militia case Houston v. Moore (1820) makes this very clear.
The Potowmack Institute has made available for several years the opinions in Houston v. Moore, http://www.potowmack.org/houst1.html, to demonstrate that the gun lobby's individual right had no support in the militia concepts and practices of the early Republic. Judge Garwood will have it anyway. He invokes this part of the judicial record to further the anarchic invention. The militia in Houston v. Moore was the militia as expounded in law in the early Republic.
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[begin Garwood opinion]
Senate on September 8, 1789 also refused to adopt an amendment that would have given the states
power to arm and train their militias.(57)
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[begin footnote]
57. This rejected amendment read:
"That each state, respectively, shall have the power to provide for organizing, arming, and disciplining, its own militia, whensoever Congress shall omit or neglect to provide for the same; that the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state." Journal of the First Session of the Senate 75 (Washington, D.C. 1820).
In Houston v. Moore, 18 U.S. [5 Wheat] 1, 5 L.Ed. 19 (1820), the Supreme Court held that states retain the power to organize, arm, and discipline their militias provided that the exercise thereof is not repugnant to the authority of the Union. The Court reasoned that because the Constitution failed to divest the states of their preexistent militia powers, such powers remained. Id. 5 L.Ed. at 22-23. The majority did not rely upon or even refer to the Second Amendment.
The only mention of the Second Amendment was by Justice Story in his dissent, wherein he observed that the Second Amendment probably did not have "any important bearing" on the question of whether states had power to organize, arm, and discipline their militias. Id. 5 L.Ed. at 31.
It seems likely that if the Second Amendment was intended only to grant the states concurrent power to organize, arm, and discipline their militias, the Supreme Court would have relied, at least in part, upon the Second Amendment for its holding. As it happened, the only mention of the Second Amendment was by the dissent in pointing out the Second Amendment's probable irrelevance to the state militia powers issue. [end footnote]
The most significant Senate action is the rejection of the
amendment that would have granted the power of the states to arm
and train their own militias. This is, of course, the precise
effect the states' rights model attributes to the Second
Amendment. Proponents of that model argue that the rejection of
that amendment simply indicates that this concern was already
addressed, i.e. that the rejected amendment would have been mere
surplusage. This is highly implausible, particularly given the
Second Amendment's placement within the Bill of Rights, its "the
right of the people" language identical to that of the First and
Fourth Amendments, and its lack of any reference to the power or
rights of the states, all as contrasted to the direct and
explicit state power language of the rejected amendment.
Moreover, this surplusage explanation also ignores that in the
state conventions the right to keep and bear arms was always in
the Bill of Rights section of proposed changes, while
[end Garwood opinion]
The Framers of the Constitution were not writing a dictionary. Nothing says "the people" cannot have multiple meanings. The Second Amendment was not mentioned in Justice Bushrod Washington's majority opinion because as Justice Story wrote in his minority opinion it was irrelevant to the issues before the court. The Second Amendment was about the republican right of the people to participate in the military functions of the state. Houston v. Moore was about the jurisdiction of the state of Pennsylvania to court-martial a militiaman who refused the President's order calling forth the militia into service. Nothing in Houston v. Moore can be construed to support a personal right under the Second Amendment. The fuller context of Story's quote is:
-
If, therefore, the present case turned upon the question,
whether a state might organize, arm, and discipline its own
militia in the absence of, or subordinate to, the regulations of
Congress, I am certainly not prepared to deny the legitimacy of
such an exercise of authority. It does not seem repugnant in its
nature to the grant of a like paramount authority to Congress;
and if not, then it is retained by the states. The fifth
[sic] amendment to the constitution, declaring that "a
well-regulated militia being necessary to the security of a free
state, the right of the people to keep and bear arms shall not
be infringed," may not, perhaps, be thought to have any
important bearing on this point. If it have, it confirms and
illustrates, rather than impugns, the reasoning already
suggested.
Justices Washington and Story both list most of the provisions of the Militia Act. The one provision neither mentions is the inventory requirement. The inventory requirement and the absence of any expression of an opposition to it defeat any notion of a personal right to maintain private weaponry outside of the knowledge and reach of law and government. Story wrote: "No doubt has been breathed of the constitutionality of the provisions of the [militia] act of 1795 [as revised in small details from 1792] and they are believed to be, in all respects, within the legitimate authority of Congress." In the early Republic the public had a claim for public purposes even to the point of requisitioning private arms. The Houston v. Moore court obviously regarded the inventory requirement even further removed from the issues before it than the Second Amendment. The only mention of the rights of citizens was in the context of rights in judicial proceedings. To represent otherwise is, to say the least, judicial wishful thinking in the service of a pernicious ideological agenda which has no validity in history, constitutional doctrine or political theory. The tendentious misrepresentation coming out of the federal judiciary is nothing short of an outrage. As Story also wrote: "We do not sit here to fritter away the constitution upon metaphysical subtleties."— Or, upon issues that would undermine it in reality as the fundamental law of the land.
I invited you in my letter of August 31 to provide political leadership in the face of this kind of political advocacy built on fraud and misrepresentation. The time has become very ripe to open public discourse. We know now that there are at least three Patrons of Anarchy on the federal judiciary who do not know the difference between civil society and anarchy. The Attorney General in his role in the nomination process for the federal judiciary might provide enlightenment on how he will protect the public and the federal judiciary from other Patrons of Anarchy.
The Attorney General can also find a role in an immediate area of policy. Very recently, the original militia concept has become rather remarkably more visible. Discussions of Homeland Security in the wake of recent tragic events present an opportunity to resurrect the original concept and the public spirit it embodied. That public spirit is in striking contrast to the political cynicism that is the hallmark of the present claim of a right to be armed outside of the law. Sheriff John Raichl of Astoria, OR, has moved in this direction to organize a local security force albeit at this point only on a voluntary basis. See enclosure. Even the most assiduous protector of the NRA's gun rights ideology, what the NRA calls the "rabidly antigun" Washington Post (which has had absolutely nothing important to say about the Emerson case and given it only the most minimal mention), has given the idea recognition: "This Time, A Draft for the Home Front, Too," November 4, 2001, p. B01.
Gun owners conscripted into a national neighborhood watch against terrorism would serve a much larger public purpose in this time of crisis. The purpose is found in Secretary of War Henry Knox's militia plan proposed to Congress in 1790, http://www.potowmack.org/washknox.html:
Every State possesses, not only the right of personal service from its members, but the right to regulate the service on principles of equality for the general defense [— that is, the republican right of the people to participate equally in the military functions of the state and not be excluded]. All being bound, none can complain of injustice, on being obliged to perform his equal proportion. Therefore, it ought to be a permanent rule, that those who in youth decline or refuse to subject themselves to the course of military education, established by the laws, should be considered as unworthy of pubic trust or public honors, and be excluded therefrom accordingly.
If the majesty of the laws should be preserved inviolate in this respect, the operations of the proposed plan would foster a glorious public spirit, infuse the principles of energy and stability into the body politic, and give a high degree of political splendor to the national character.
Yours truly,
G. Eyclesheimer Ernst
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