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Potowmack Institute's Letters to Attorney General Ashcroft,

August 31, 2001

and a follow-up letter
November 8, 2001

Potowmack Institute Press Release, "Dear Attorney General John Ashcroft," September 4, 2001



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August 31, 2001

The Honorable John Ashcroft
US Attorney General
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Attorney General Ashcroft:

Your recent statements on gun rights and recent changes under your direction at the Justice Department indicate that you have an agenda that is larger than issues related to the InstantCheck system on which you invite comment. The time period for retaining InstantCheck records misses what is really at stake. What is indicated is that you have embraced the doctrine of political liberty that the National Rifle Association seeks to maintain. At the doctrine's heart is the widely proclaimed individual right to gun ownership. All the NRA's public posturing is to maintain this individual right, but the right is the right to be armed outside of the law. At its most extreme, it is the right of the NRA's "armed citizen guerrillas" to "outflank" this government (See enclosure, http://www.potowmack.org/emerappd.html#ak47). It is a right and a doctrine that if establish in law would, in fact, destroy any concept of law and government. The vital question is:

Or, phrased another way:

The NRA cannot win the right to be armed outside of the law in court. It has to maintain its individual right by defeating legislation and cultivating you.

The right to be armed outside of the law is now in the US Court of Appeals, Fifth Circuit, in US v. Emerson. The Potowmack Institute challenges the fundamental premise of this right, as asserted by the District Court, in our amicus curiae brief in Emerson. We await a ruling. It is not necessary, however, to comment on the Emerson case to get at fundamental issues. There are other cases that have already been concluded in which the NRA has argued for the "general militia" and the "armed populace at large." See the NRA's amicus curiae brief in Perpich v. Department of Defense (1990, http://www.potowmack.org/nraperp.html). It is for the "armed populace at large" that the NRA wants an individual right to gun ownership. The serious question of fundamental political distinction immediately arises whether the "armed populace at large" is composed of citizens under law and government or individual sovereigns in the State of Nature which is the state of anarchy. We, the people, need to know which. Do we return to the State of Nature and reverse the process that the Framers of the Constitution undertook to enter into political community?

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An early declaration is useful. In the 1776 Virginia Bill of Rights we find:

The fundamental principle at stake is the relationship between citizen and state, between the individual and political community. The NRA's right to be armed outside of the law puts the individual in conflict with the requirements of political community. The NRA has successfully maintained its right by lobbying Congress to defeat any scheme of accountability to public authority, particularly federal authority, through registration of gun ownership, which to the NRA includes retaining of sales and InstantCheck records. The NRA argued for its right as a matter of constitutional doctrine in its petition in NRA v. Reno (DC Court of Appeals, July 2000, http://www.potowmack.org/nrareno3.html). Accountability to public authority, that is, registration of gun ownership, is the only way gun ownership can be effectively regulated. It is the only way we can know we have political community rather than a tendency toward the slippery slope to anarchy, but it is the one point of policy that the NRA's "armed populace at large" right cannot accommodate.

The extreme direction of the policy objective has been unequivocally stated more than once. David Kopel, a prolific gun rights advocate who appears frequently in NRA publications, has written explicitly in the context of gun ownership: "The tools of political dissent should be privately owned and unregistered." (See enclosure, http://www.potowmack.org/emerappd.html#kopel.) Is this a political goal that the Attorney General of the United States seeks to further? Accountability to public authority means accommodating to the legitimacy and viability of law and government. It means the consent to be governed and submission to rules and regulations. It means an assurance that we have a government that understands what it means to be a government. It means an affirmation that the rule of law and the state's internal sovereignty and the state's monopoly on the exercise of force are all the same thing and are requirements of political community. The state's monopoly on the exercise of force means that under law and government the exercise of force is authorized or permitted by the state which means by law (see enclosure, http://www.potowmack.org/emerapph.html).

In Perpich the NRA was on the right side of the ruling but its argument was ignored by the Supreme Court. In NRA v. Reno the NRA's arguments were rejected by the Appeals Court, cert. denied. Regardless, you have indicated your willingness to give the NRA its "armed populace at large" right anyway and an explanation and a justification are in order. Choices on fundamental principle, however, cannot be left solely to the courts or to you. They have to be made in the public mind and have to involve public knowledge and participation. This is not new. The Framers of the Constitution designated that the Constitution, the fundamental law of the land, would derive its authority from the people not the states and would be ratified not by the state legislatures but by ad hoc conventions of the people. Arriving at a conclusion on the fundamental relationship between citizen and state is what we have to get at with regard to firearms policy. We want the Attorney General not just to be a part of this effort but to lead and to define and act to build a consensus on fundamental principle.

We can start with John Locke. The Framers of the Constitution took much of their instructions on law and government from John Locke's The Second Treatise of Government (1689). They followed the process described by Locke of quitting the State of Nature and entering into political community. Locke wrote:

When individual sovereigns quit the State of Nature and become members of civil society, citizens under law and government, they create a higher law. They surrender up "to the publick," in the words of Locke, "the executive power of the law of Nature," the power to make and enforce law. They alienate the right to exercise force except as authorized or permitted by law. If, when gun owners consent to be governed, they keep their weaponry— their executive power— outside of accountability to public authority, outside of the law, then they never consented to be governed at all. They made a treaty not a government. They created political cynicism not public trust. The Attorney General of the United States has expressed sentiments that indicate conflict with the founding principles of political community and might, in the interest of the enduring life of the Republic, make himself clear. The American people need to know if the Attorney General is a "Patron of Anarchy" who thinks that civil society and the State of Nature are the same thing. The American people need to know if the Attorney General, who is under oath of public office to preserve, protect and defend the Constitution against all enemies, foreign and domestic, understands that there is a difference between the Constitution as a frame of government and the Constitution as a treaty among sovereign individuals. If we are operating on new fundamental principles in the present Bush Administration, the American people need to know what those principles are and have them clearly articulated.

The articulation is essential. Getting at fundamental principles these days is much confused by a false reading of the concerns of the early Republic. None of the quotes you cite support in full context a right to be armed outside of the law anymore than the scholars you cite explain the difference between civil society and the State of Nature. The founding generation was certainly concerned that a regular army at the disposal of the newly created central government might become an instrument of oppression. They addressed the concern with constitutional balance. The balance was between state and federal government. The militia clauses in the Constitution, the Second Amendment, and the Militia Act of 1792 ( http://www.potowmack.org/emerappc.html) were about the disposition of military force in the early Republic. The militia was a state maintained military organization. The Constitution created a national militia out of the preexisting state militias, but in the Second Amendment it also sought to guaranteed a corporatist right carried over from the concepts of the British Constitution that the people, represented in their state legislatures and enrolled in their state militias, would have a right to keep and bear arms and that the right would be preserved. The US Constitution, however, transformed and replaced the concepts of the British Constitution with wholly new concepts. The Second Amendment guarantee was to maintain an anachronistic constitutional balance between the people, in their state governments, and the newly created federal government, not then fully accorded trust. The balance, as constituted, however, served no enduring purpose, and, insofar as the US Army did not become an instrument of oppression, the militia system was destined to fall into disuse. In those concerns and concepts and in the course of events, there was no notion whatsoever expressed or implied of a civil right that would serve to maintain a balance between a privately armed populace and any and all government. The language widely quoted today about private arms and a right to arms was, in its original context and in the context of the times, about private arms subject to public duty and rights related to the state maintained militias. The individual right versus collective right distinction, the subject of much dispute today, did not exist in the early Republic. There is no research on when the distinction first came into use but it has been used by the courts for a hundred years to reject the individual right claim invented and asserted much later. In our time the courts have decided that the distinction is irrelevant to militia purposes (US v. Hale (1992), http://www.potowmack.org/usvhale.html). The controversies of the early Republic were over state and federal jurisdiction. See Houston v. Moore (1820, http://www.potowmack.org/houst1.html) and Martin v. Mott (1827, http://www.potowmack.org/martmott.html)— both with opinions by Justice Story whom you cite to further a purpose contrary to anything Story had in mind. There was no mention in those cases or anywhere else in those days of "individual" or "collective" rights.

The best that can be said of the political leaders of the early Republic is that they were comfortable with the presence of private arms in the general society. They were also comfortable with conscripting the possessors of those arms into public duty and maintaining inventories of the private arms they possessed. The Militia Act of 1792, enacted by the same people who ratified the Second Amendment, required the states to "enroll"— that is, register— militiamen for militia duty. The militiamen were citizen soldiers. Militia duty was conscript duty. The regular army, modeled after the British Army, was composed of voluntarily enlisted professional soldiers. The militiamen were required to provide their own weapons. The requirement enforced or presupposed possession. It is in this possession that our present gun rights ideologies seek to find a civil right, but rather than a civil right the possession was a form of tax, widely resisted, imposed by lawful authority. The Militia Act also required the state militia officers to maintain inventories of militia resources including the militiamen's privately owned weapons once provided and presented for inspection. The inventories, called "Return of Militia" (See enclosure, http://www.potowmack.org/milret.html), were reported to the President of the United States that is, to the Federal Government. In the early Republic, the public had a claim to private arms for public purposes— property rights and privacy rights not withstanding. None of the individuals who are the sources of quotes from the early Republic, compiled in long lists that abound on the internet (http://www.potowmack.org/thequotes.html) to further the present gun rights agenda, some of which you have been repeated, ever expressed any objection to the inventory requirement of the Militia Act. The inventory requirement and the complete absence of any objections to it prove that there were no concerns in the early Republic to maintain what the NRA wants to maintain today a civil right of the "armed populace at large" to be armed outside of the knowledge and reach of government. That it is within the powers of this government to maintain inventories— that is, registries— of privately owned weapons against any claims of a civil right was firmly established in the early Republic.

The conscript militia died as a viable institution long before the Civil War. There are no efforts to revive it now. No conscript militia, no militia rights as originally understood. If we can recognize that freedom is participation in power, then the larger context of the Second Amendment is the republican right of the people to participate in the military functions of the state rather than leave those functions up to the King (before the Revolution) or the Federal Government (after the Revolution) and their respective regular armies which in the eighteenth century were usually composed of mercenaries, foreigners and/or social misfits— whereas militiamen were citizen soldiers rooted in their local communities. In the twentieth century, the citizen soldier of the conscript militia was revived in the Selective Service Acts (1917, 1940, 1948) which combined into one national system the previously opposing, antagonistic concepts of the conscript militia and the regular army. It is in the Selective Service Acts that we find the true legacy of the Second Amendment, the militia concept, and the militia's citizen soldier. Citizens under law and government not only alienate the right to exercise force except as authorized or permitted by law they enroll themselves, when required, to fulfill a public duty.

We have to recur to fundamental principle and resolve the relationship between citizen and state before there can be any progress on firearms policy. The relationship has to be consistent with the requirements of citizenship under law and government, the rule of law, and public order and safety. The relationship can be consistent with, and respectful of, the legitimate interests, rather than the anarchic or insurrectionist interests, of gun owners. Since you have raised the issue you can open the prospect of getting the real public discussion going. This ain't about trigger locks. What justification in principle is there for gun ownership outside of the law? Your letter to the NRA in May already contained a hedge that accommodates "compelling state interests." A compelling state interest in constitutional doctrine is only relevant to matters of fundamental rights. The courts have never recognized a fundamental individual civil right in the Second Amendment. Your hedge, nevertheless, is significant and caused a small stir in gun rights circles. There are, however, other compelling interests that need to be raised and introduced as issues. They are to maintain the rule of law, to maintain the internal sovereignty of the United States against the NRA's "armed citizen guerrillas" who would "outflank" it, to maintain political community's monopoly on the legitimate exercise of force, and to maintain a civic culture of public trust that derives from common agreement on the fundamental law of a constitution. Those compelling interests lead directly to principles of firearm regulation consistent with public safety and ordered liberty. Your oath of office and your fitness for public office demand leadership on the fundamental requirements. Preserving free government demands as much. The American people deserve at least as much.

Yours truly,
G. Eyclesheimer Ernst


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November 8, 2001

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:

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:

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.

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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.

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 mention of a Second Amendment individual right was omitted it cannot be presumed by some preposterous process of logic that the right was enumerated especially when its enumeration would dissolve the very foundation of political community. Houston v. Moore illustrates better than any other public document from the early Republic the military nature of militia duty and the powers of government to compel service. The opinions abound with such words as:
"subject to the rules and articles of war,"
"the refusal or neglect of the militia to obey the orders of the President is declared to be an offense against the United States"
"enforce a public duty"

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:

Performing his equal proportion would also oblige all to make themselves and their private weaponry available to perform a public duty or suffer the same exclusion. Of course, those under oath of public office have an obligation to uphold the public trust by getting it right. The Attorney General in the present circumstance can make a mark on history with constructive public advocacy, but first he has to distinguish himself as a public servant who gets it right and not as a Patron of Anarchy who serves some other purpose.

Yours truly,
G. Eyclesheimer Ernst


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