The Potowmack Institute
Sen. Ted Stevens' "armed citizenry"
Letter, September 10, 1995
National political leadership
Letter, February 11, 1997.
The Blood on Their Doorstep
Letter, July 24, 1998.
To Congress on US v. Emerson
Letter, April 15, 1999.
Excepts below reproduced from
The real issues that are at stake in gun rights and gun violence are outlined in
our amicus curiae brief in US v. Emerson
filed in September, 1999, and in our
letters to Attorney General John Ashcroft, August 31, 2001,
and in our
amicus curiae brief in Parker v. DC Gov.,
July 25, 2006. Other Parker briefs are at:
The extraordinary and tragic events of September 11, 2001, occurred after the Ashcroft letters.
Gun lobby/libertarian ideologues have invented a wholly new doctrine of political liberty out of a very false reading of the institutional practices and concerns of the early Republic. The doctrine is part of an extreme individualist vision of political life which at the same time produces and feeds on political cynicism. The political cynicism has been, in the late twentieth century, the driving force in American political life. It is a doctrine that would reduce the Constitution from a frame of government with "just powers" that derive from "the consent of the governed" to a treaty among sovereign individuals who give no more than word of honor and promise of good faith. It has controlled the political process. The "children of [anarchic] darkness" know what they are doing. The closest thing to a broad constituency to address gun violence is the Million Mom March (now consolidated with Handgun Control into the Brady Center) which was organized on little more than the incoherent sentiment that something has to be done and has done very little but wave a few placards. The urgent need is for the political leadership that will introduce fundamental political choices on their proper terms into public discourse and into the public consciousness and to build policy on the fundamental relationship between citizen and state. What we get as a response to the political cynicism and anarchic gun rights agenda is Barney Frank who can be taken as representative of the failed consciousness and shallow posturing of the bankrupt Democratic Party.
The issues on their proper terms have been around in full public view long
enough for serious, intellectually competent political players to know what
they are and to address them. The Second Amendment Foundation's
amicus curiae brief in
US v. Warin (1976) argued the same
gun rights ideology
in federal court that has now been embraced by the federal district court
Other opinions in federal court are in: .../silveira.html and .../nordyke.html.
But where is Barney Frank? Where is the Democratic Party? Can we take Barney Frank as the most representative Democrat? The extreme volatility of the political cynicism behind gun rights ideologies demands aggressive political leadership that goes beyond trigger locks and public health statistics and educates the public and builds a consensus around an enforceable, effective firearms policy that makes sense and enjoys public support. Instead we get the most impossibly lame brain people who ever tried to have a political agenda. Rather than lead, educate a constituency, and build a consensus, the Democrats and gun controllers follow the polls and do a focus group to find out what they can put over. They will give us trigger locks.
Building a consensus can start with educating a constituency on the historical context. Gun rights ideologues establish enormous credibility by wrapping themselves in the Constitution. The Constitution is a frame of government with "just powers" that derive from "the consent of the governed." It is not a treaty among sovereign individuals. Under law and government, the rule of law, the state's internal sovereignty, and public authority's monopoly on violence all mean the same thing. That is what the oath of office is all about. The militia clauses in the Constitution, the Second Amendment, and the Militia Act of 1792 were about the disposition of military force in the early Republic. They were about conscription. They were not about the civil rights of private individuals to be armed outside of the law. The right to “keep and bear arms” is a right of citizens under law and government. It is the right of the people to participate in the military functions of the state. It always is, always was and always has to be also a civic duty. It is not a right in the State of Nature before there was law and government.
We have not heard any of this from Barney Frank eventhough it has been delivered personally into his hands. He revealed himself to be an arrogant, dismissive, disengaged man. Members of Congress do not want to hear about their oath of office. The NRA would surely call Frank a "gungrabber" and a "gunhater". A question arises, what is wrong with Barney Frank? Or, what is wrong with the Democratic Party? The answers tell us something about what is wrong with American politics.
The Potowmack Institute placed Frank's hands early versions of the briefs
we filed in Emerson and Parker in 1995. Frank was interviewed
by hosts Amy Goodman and Larry Binsky on Pacifica Radio before the 1996
election. The hosts said that the Democratic Party Platform was no
different from the Republican Party Platform. Frank became testy.
He said there are big differences.
Suddenly we are in extraordinary times. We have to become seriously political. The previous record does not indicate that we can expect extraordinary leadership.
Gun control, another liberal response to crime, isn't the right
[The original text of this passage was included in our Appendix B, filed with the DC Court of Appeals in Parker. Barney Frank is regarded by members of the House of Representatives as it brainiest member. One has to wonder if we are in good hand. If Frank wants to offer right answers he has to get the words right. He might start with liberal. Everything American is liberal. There is no conservative tradition in America. However, in political theory there is no meaningful distinction between liberal and libertarian. The words are often used interchangeably in serious scholarship. He might tell us something about the difference between his liberalism and the Libertarian Right that controls the Republican Party and much of the rest of our contemporary politics. If the words have no coherent meaning they represent no meaningful concepts.
The Potowmack Institute does not use the term "gun control" very much because of the culture war connotation people like Frank give to it. Gun control is not a response to crime. It is about the contours of citizenship. Are citizens, gun owners and non-gun owners alike, citizens of the United States, under law and government, or are they individual sovereigns, laws unto themselves, in the State of Nature, which is the state of anarchy? Does the constitutional design of this political system guarantee a civil right to be privately armed secured by government, mind you to the NRA's "armed citizen guerrillas" who would "outflank" it?
Individual sovereignty is a plank in the Libertarian Party Platform. Stephen Halbrook describes "libertarian republicans" in That Every Man Be Armed (1984) who are armed first, consent to be governed second, but submit to no prior restraint (a very big issue in gun lobby consciousness) and keep their guns outside of the law which means they never consented to be governed at all. The Constitution becomes a treaty among sovereign individuals. It does not create a government with sovereign public authority. It is too much to expect in the way of political and intellectual leadership that Frank would reset the terms of the discussion and the policy choices. He will concede the territory and let the gun lobby/libertarian perversion of American political liberty reign. Genuine political leadership begins by establishing the context that contradicts the historically new gun rights assertions.]
Of course, sensible gun control is an issue which can have strong appeal to voters (although liberals have to be more sensitive than they have been to regional differences on gun restrictions).
[The "liberals" will let the forces of anarchic darkness define the issue and set the agenda and then read the polls and do a focus group to determine where they will be allowed to cling onto the platform by their finger nails.]
But presented as a substitute for harsher prison sentences or more prosecutorial freedom for law enforcement agencies, gun control will lose support among swing votes and will not help liberals to improve their image as crime fighters.
[Frank concedes the territory again. Instead of worrying about swing voters he needs to make appeals to gun owners that educates them on the political cynicism and false concepts of gun rights ideologies. But, we cannot have laws that infringe on the right of the NRA's "armed citizen guerrillas" to "outflank" this government. We give absolute individual freedom and a code of ethics. There can be no principle of regulation before the fact of gun ownership. In an application of authoritarian justice, we can only apply punishment by example with "harsher prison sentences" and "more prosecutorial freedom" after the code has been violated. That is the role left for what remains of public authority after the Constitution has been reduced to a treaty among sovereign individuals. Authoritarian justice is what the gun lobby and libertarians worry about most but it is a direct result of their own political cynicism.
How about becoming real crime fighters. Gun rights ideologies want to maintain the security of a right to "outflank" this government with "armed citizen guerrillas." Outflanking this government under arms satisfies the constitutional definition of treason. Treason is a crime. There can be no constitutional right to threaten treason any more than to commit treason.]
Indeed, for some swing voters, when liberals point to tougher restrictions on guns as a main part of our anticrime package, we are simply adding to the injury of taking away their guns the insult of calling them criminals while we do it.
[Indeed! As long as Frank and the "liberals" think and talk this way they deserve to lose support.
We, the people, gun owners and non-gun owners alike, provide for our security under law and government by establishing legal categories of gun ownership that can effectively disarm the lawless and the disloyal. That is why we have law and government. There has to be some enforceable standard to distinguish between law-abiding citizens, on one side, and the lawless and the NRA's insurrectionist "armed citizen guerrillas", on the other. There is no conflict in principle between legal categories of gun ownership and gun ownership by law-abiding gun owners whether they own guns for self-defense or sport and recreation. The gun lobby has another agenda which is beyond Frank's articulated consciousness and comprehension.]
There are in this country a significant number of voters mostly middle- and working-class white men who enjoy owning and using guns for hunting, target shooting, and other wholly legitimate purposes.
[Have they been deceived into a cynical view of civic and political life? Does Frank offer anything that would elevate public discourse?
There are also a significant number of voters who believe they have a constitutional right for the wholly illegitimate purpose of maintaining a balance of power between a privately armed populace and any and all government. They cannot win this right in court. See the NRA's amicus curiae brief in NRA v. Reno. They will have it by defeating legislation. They don't have to worry that Frank will create and rally a constituency for the contours of citizenship under law and government.]
I believe there is a legitimate social purpose to be served in banning of automatic weapons,
[There is no ban on automatic weapons. There are 200,000 federal machine gun permits in circulation. Automatic weapons are rarely found in illegal use because their ownership is strictly accountable to public authority. The National Firearms Act of 1934, which established the permit requirement, is not, however, the model of national policy for all guns because its intent was severely restrictive. It does, however, teach some important lessons, which Frank has no appreciation of. The NRA, which in its heart would like to repeal the National Firearms Act, does not advocate a machine gun in every pocket, certainly useful to the "armed citizen guerrillas" who would "outflank" this government. That advocacy would be too politically embarrassing. Frank will not embarrass the NRA by raising the issue anymore than will the "rabidly antigun" Washington Post.
If not the National Firearms Act of 1934 what then is the constitutional basis for national policy. It has not come out of Frank, but the model for a national firearms policy is the militia clauses of the Constitution, the Second Amendment, and the Militia Act of 1792. The Militia Act required the states to "enroll" that is, register gun owners for militia duty. The Militia Act also required state militia officers to maintain inventories, called "Return of Militia", of militia resources including privately owned weapons. There was no mention in those days of constitutional protection for private individuals to maintain weaponry outside of militia duty and outside of the knowledge and reach of law and government. There was no concern expressed in those days that the militia inventory would infringe on the right of the people to defend themselves from the tyrannical encroachments of any and all government state or federal. There was no concept of "the armed populace at large" that the NRA argues for in court today. See .../nraperp.html. Establishing that point in the public consciousness establishes the basis for a principle of regulation that gun owneship is accountable to public authority and subject to rules and regulations. Accountability to public authority is the only point of policy the NRA cares about. It is what it works hardest to defeat. Frank, the Democratic Party, and the Million Mom March simply are not up to it. It cannot even be said that Frank conscious of what is at stake.]
in trying to keep firearms out of the hands of people with criminal records or a history of mental instability, and in keeping good records on those who own guns.
And I vote accordingly. Few of these measures will do a great deal to protect innocent people against the sort of street crime that terrorizes them. But neither do they do any harm to legitimate gun owners, and if well-enforced they will probably marginally reduce the level of violence in our society.
[What would protect innocent people is a civic culture of public trust that derives from agreement on the fundamental law of a constitution. The public trust is in the viability of public authority. There is no viability of public authority when there is an armed and dangerous contingent of extralegal force which claims a right to threaten armed veto power over any action of government it disapproves of.
Frank's retreat reflects a complete failure of political vision. Frank cannot even explain how he will accomplish his regulatory goals without enforceable rules and regulations.
It is the position of the Potowmack Institute that the level of gun violence in society can be reduced by 80% in three to five years with a national firearms policy the first goal of which would be to shut down the illegal traffic in firearms by establishing a national system of registration of ownership and reporting of private sales. Such a policy, effectively enforced and accompanied by an amnestied buyback, would empower local jurisdictions to enforce their local regulations.
In the 18th century when there was a threat to the community, the local political leaders ordered every man to be armed, undergo training, and be available to patrol against the threat usually without pay. This citizen militia is what was meant by "the palladium of the liberties of a republic." Its purpose was to eliminate the need that the much despised regular army would perform these functions. It was about obligation not personal freedoms. There is no constitutional protection against touching guns with laws in the interest of public safety and rules and regulations. It was a wholly different concept for the personal right claimed today. The recently proposed cabinet level Office of Homeland Defense presents an opportunity to resurrect the original concept. The original concept would defeat the "armed populace at large" claim and make the NRA very upset. All gun owners would be required to perform their public duty but they would have to meet qualifications, undergo training, be organized trained and disciplined by legally constituted authority, be on a registry and put their weapons on an inventory that is reported to organizing and directing authority. Those who did not want to perform their public duty or who failed to meet qualifications would be subject to a different set of civilian restrictions and standards.]
Liberals must remember, however, that the political costs of gun control are also higher. There are a large number of people who care fiercely about what they believed to be their right to own guns without restrictions as long as they use them lawfully.
[There are also large numbers of people who believe that they, as "the armed populace at large," armed outside of any law, governmental authority or civic obligation, constitute a fourth branch of government with veto power that can be exercised with lethal violence if the other three branches of government get out of line. The NRA believes that it has a constitutional right to gun ownership without restrictions. Frank concedes the territory. For Frank and the NRA, constitutional rights are no longer defined in law and constitutional doctrine but become articles of faith in a libertarian civic religion.
Frank quite remarkably articulates the political cynicism of the libertarian fantasy that we give absolute freedom and a code of ethics. There can be no standards or restrictions before the fact only draconian punishment by example after the fact.
The political costs are high because Frank and the Democratic Party will not lead to inform and enlighten the public and a constituency.]
And one of the major political problems liberals face today is a failure fully to understand what this means.
[and they cannot look to Frank for any understanding or political leadership.]
These people will cast their votes primarily according to a candidate's position on gun control; they vote this way because of their commitment to the issue, not because of some clever manipulation by the National Rifle Association.
[They have convictions that are unexamined and receive no examination by Frank. The NRA engages in plenty of clever manipulation that separates gun owners from their true interests as citizens. There is a rightwing movement in this country. It knows what it wants and Frank reveals no consciousness of its existence or what it wants or what its strategy is. These are the "liberals".]
The power of these voters is what makes even moderate gun-control measures so difficult to pass. It was resentment of Senator Kennedy's position on gun control that lead large numbers of union members in Iowa and Maine to oppose him in the presidential caucuses of 1980 despite his leadership on virtually every other issue that mattered to them. The total focus on the issue of unrestricted gun ownership leads many voters to support Republicans for president despite pro-Democratic sentiments on economic and environmental issues. In many Western states, for instance, it is the strength of these voters that leads many liberal Democrats to vote against gun control, not some need for PAC money from the NRA.
[What Frank is really describing is how political cynicism and
demagoguery defeat any kind of progressive political agenda and
how he offers no political or intellectual leadership to respond
to the political cynicism. The
Rightwing Movement knows exactly
what it is doing. It does not have to worry about any challenge
from Frank, the Democratic Party or the "liberals" or the "rabidly
antigun" Washington Post. They will give
us trigger locks. See
how a very sophisticated rightwing movement cynically
separates gun owners not only from their interests as
citizens but as workers. The labor organizations also
completely fail to use their extensive resources to educate
their members on what is at stake and how they are deceived and
controlled. Labor members vote 30 to 40 percent for Republicans.
Former senator Gary Hart's recent book The Minuteman
contains a chapter accurately explaining the Second Amendment
and the militia concept in history and practice. Hart was
for years a member of the Senate Armed Services Committee.
Other members of Congress must know something about the true
meaning of the militia clauses of the Constitution, Second
Amendment, and the
Militia Act of 1792
and how they are about military organization not the civil
rights of private individuals, but their knowledge is nowhere to be
heard in public discourse.
Gary Hart, The Minuteman, The Free Press, 1998.
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This does not mean that liberals should abandon all support for gun control.
[They need to give the conceptual foundations that gun owners, nongunowners, union members, respectable Republican businessmen, suburban soccer moms and inhabitants of crime ridden innercity neighborhoods can support as citizens. The consent to be governed is the first requirement of citizenship and political community. It requires accountability to public authority.]
But I do believe that an insufficient appreciation of the strength of these feelings leads many of the left
[Before Frank has anything else to say he should explain what "the left" is and what it stands for. Is the "left" which here must include the Democratic Party something more than "gay rights," "affirmative action," and "immigration policy"? Is the left "socialist?" See .../rightmov.html. Frank obviously wants to touch guns with laws but other than crime control he has no justification. Nor can he turn the strength of any feelings in his direction. If he does not know what he is doing, he just contributes to the gun lobby's demagogic appeal by making himself a target of attack as a "gungrabber" and "gunhater".]
to put far too much emphasis on this issue.
[Rather than demand political leadership from Frank we abandon the territory to the children of anarchic darkness.]
Given the regional variations on the subject,
[There can be no regional variation on the sovereigty of the legal institutions of government, the rule of law, and the contours of citizenship. That is where the emphasis has to be. There are some things we have to get right first.]
when liberals insist on using gun control as a litmus test, they punish progressives in the Mountain states without in any way advancing the cause of gun control. The choice in most western states is not between liberals who favor gun control and liberals who oppose it; it is between a liberal who opposes gun control and a conservative.
[Another choice is to conduct substantive, informative public debate and challenge gun owners on their political cynicism and their civic obligation. The real issues involve the fundamental relationship between citizen and state. Rather than false choices we can demand genuine, substantive political leadership.]
At the presidential level the more fervently Democrats advocate gun control, the more we hurt ourselves with swing votes, especially in the western states. And by trying to make anti-gun laws serve as our example of how to be tough on crime, we end up losing ground on both issues.
[The ground we are losing is constitutional government itself. The more we depend on people like Barney Frank for political leadership, the less likely we, as a nation, are to survive the twenty first century. But, we will have trigger locks.]
[PotowmackForum], interactive posting