It's not about guns...
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February 21, 2013
The Honorable Benjamin Cardin
The present "gun safety" proposals have been reduced to a who-has-the-votes horse race. There is no substance. So far there is no cause for optimism. Despite the sincere efforts of VP Biden, this is not about "gun safety". The more-of-the-same proposals, if enacted, may produce some marginal benefit, but the best outcome will be that they are defeated in Congress. Then, if there is still a political will and if we have a functioning, viable political culture, the defeat may provoke serious, aggressive political leadership on the most vital and fundamental issues of political life. This is where we get seriously political.
Aggressive political leadership is long overdue. Whether the present circumstance will produce any change remains to be seen. The Senate Judiciary Committee hearings on gun violence and gun rights on January 30 were an appalling spectacle of intellectual failure and political dysfunction and cowardice. The National Rifle Association's Wayne Lapierre and independent researcher David Kopel were on the panel giving testimony, reaction, and comment. But, just where was the Senate Judiciary Committee?
LaPierre wrote (or, rather, someone wrote for him) in his book Guns, Crime and Freedom (1994), p. 7:
The people do have a right to take up arms to abolish oppressive government, but it is not a civil right that can possibly be secured by government. David Kopel wrote in "Trust the People: The Case Against Gun Control," Cato Institute Policy Analysis No. 109, July 11, 1988, p. 25, explicitly in the context of gun ownership:
http://www.potowmack.org/emerappd.html, p. A50-51
Until we have a government that understands what it means to be a government, the daily carnage will be the price we pay for intellectual failure and political dysfunction. A half day of hearings do not do justice to what is at stake. I have proposed serious congressional hearings worthy of what is at stake that would last for days, even weeks, would thoroughly examine the issues in terms of historical context, political theory and constitutional doctrine, and would arrive first at the fundamental concept that the Constitution is a frame of government with just powers that derive from the consent of the governed not a treaty among sovereign individuals who give no more than word of honor and promise of good faith. ...potowmack.org/schumer.html, .../mayobloom.html.
Chief Justice Marshall wrote in McCulloch v. Maryland (1819), "we must never forget, that it is a constitution we are expounding." The Constitution is not a whimsical notion. The consent to be governed and the "just powers" of a governing authority have serious consequences for private gun ownership as the Founding generation recognized.
Those consequences are not recognized now. NRA president Chris Cox has made the recent proclamations:
Requiring gun registration with the federal government, that's an illegal abuse of privacy and freedom unprecedented in our history.
The relevance of Second Amendment purposes is found in public necessity. There is not now a public necessity for conscript state militias or for national conscription, but the principle still applies. If there were a public necessity, the legislatures would act as they have in the past and the whole absurdity of gun rights would be blown away.
Blown away it is regardless. What is completely unobserved in all the recent controversy, reporting and comment on gun rights, gun violence and "gun safety" is that the courts have resurrected the original concept and purpose and settled the issue in terms of policy making. Judge Silberman concluded in Parker that we can have "registration ... for militia service if called up." There is nothing in the subsequent Supreme Court rulings that contradicts that conclusion. There you have all you need. The Constitution is still a frame of government. Registration accountability to a governing authority is the only way firearms can be effectively regulated. The constitutional authority is right there in the original concept. Now that the courts have opened the path for policy all that is missing are public knowledge, political leadership and policy making.
The Federal Government's only business in firearms policy is to control and shut down the illegal traffic between and among jurisdictions. That is empowerment policy for local jurisdictions. That can only be accomplished through registration and reporting of private sales and transfers. In the present spirit of devolution of power away from the Federal Government, the primary burden of enforcement for most firearms (those not already covered by the NFA of 1934) can be placed on the states. Gun owners can have, within their state boundaries, all the guns they want for recreation, sporting, self-defense, etc., but not for anarchic, insurrectionist and treasonous purposes.
Having failed to challenge his opponents in 2008 and 2012 on where they stood on "registration ... for militia service if called up", the president can begin on the path toward a national policy now by bypassing the gun lobby leadership and appealing directly to the civic consciousness and obligation of gun owners, ...potowmack.org/obchall.html. The closest he has come so far is in this statement in Minnesota, February 4:
We can know from the NRA's Wayne LaPierre's recent hysterical statements that the heat is on for the childish political fantasy. Whether there will be public momentum that raises the heat further is the present challenge. Meanwhile there is no subject on which there is more ignorance and utter absurdity that gun rights. Against the public ignorance and near universal hostility I speak from 25 years of experience to public enlightenment, the leadership has to start at the top. Will there be a beginning in the present circumstance? Can we have a beginning that expands beyond "gun safety" to a national civics lesson on fundamental political and civic values? The opportunity will present itself when the present "gun safety" proposals are defeated.
Attached to the relevant paragraph from FP No. 46:
Shaping the public mind to address gun violence begins with what James Madison was really describing in FP No. 46 and ends with Judge Silberman's conclusion in Parker. All that is left is the political leadership to make policy. There was no progress in the Senate Jud. Hearings on Jan. 30.
Attached to FirearmsFreedomAct.com
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