It's not about guns...

It's about citizenship

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February 21, 2013

The Honorable Benjamin Cardin
The Honorable Barbara Mikulski
The Honorable Donna Edwards
The Honorable Steny Hoyer
The Honorable Chris Van Hollen

Dear Sirs/Mesdames:

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 have a right, must have a right, to take whatever measures necessary, including force, to abolish oppressive government., p. A-46

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:

LaPierre and Kopel push the envelop on the Smith Act. Are not members of the Senate Judiciary Committee under oath of public office to preserve, protect and defend the Constitution against all enemies foreign and domestic? Doesn't armed "political dissent" satisfy the constitutional definition of treason? LaPierre and Kopel need not worry about accountability for their borderline advocacy of treason or any inquiry into their real objectives or methods. With much indulgence from the Senate Judiciary Committee they can have their childish political fantasy and their childish concept of the political self. The fantasy and concept are now and have always been what is at issue. The very legitimacy of a governing authority becomes marginal at best. It is not as if members of Congress have not been well informed,, .../snjdcom.html

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., .../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:

    ... gun registration would need to be part of the equation for universal background checks to be effective.

    Requiring gun registration with the federal government, that's an illegal abuse of privacy and freedom unprecedented in our history.

No. It is right there in the original design and intent of the Militia Act of 1792. The purpose then was civic obligation and military preparedness. Those purposes are the basis for policy now. The Militia Act was a conscription act. LaPierre has said that there are only two purposes to registration: 1) taxation 2) confiscation. No, there is a third purpose right there in the Militia Act conscription, a military obligation, a coerced civic obligation. Contrary to what our highly politically motivated courts, in their pandering to a malignant constituency, would have us believe, there are no libertarian privacy rights in a conscript military organization. All of the proclamations that now assert belief in, support and respect for Second Amendment rights have no relevance to the original purposes of the Second Amendment.

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, The closest he has come so far is in this statement in Minnesota, February 4:

    The majority of gun owners, overwhelming majority of gun owners, think [universal background checks are] a good idea. So if we've got lobbyists in Washington claiming to speak for gun owners saying something different, we need to go to the source and reach out to people directly.

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.

Yours truly,


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.

The gun lobby has invented a whole preposterous, anarchic, insurrectionist, treasonous doctrine of political liberty largely out of words lifted out of context from this one paragraph. Regardless of what the NRA, a host of gun lobby/libertarian pseudoscholars (.../emerappi.html), the "rabidly anti-gun Washington Post" (.../washpost.html), NPR's Diane Rehm ,(.../196rehm.html), and a growing number of anarchic federal judges (.../silvdiss.pdf) would have us believe, James Madison in FP. 46 was not describing a civil right of private individuals. The issue was military federalism a federalism which today is anachronistic and irrelevant. The larger context of the Second Amendment was the republican "right of the people" to participate in the military functions of the state as conscript citizen soldiers, fulfilling a civic obligation, rather than leave those functions up to a mercenary army whether the British Army recently removed or the US Army which as created in the Constitution was explicitly, in the consciousness of the 1780s, modeled after the British Army. The great apprehension at the time was over an untried supergovernment with a mercenary army at its disposal. It is very far removed from public knowledge but the Second Amendment only makes sense in those eighteenth century terms.
The original antagonistic relationship between the conscript state militias and the mercenary US Army was combined in the twentieth century selective service acts. The US Army became in a sense a national militia.

Attached to

Give them their hearts' desire. To the states: You keep your guns within your boundaries and the Federal Government will leave you alone. If not, the Federal Government will invade your space and do it for you.
The constitutional authority for a National Firearms Policy is not the much overused commerce clause but the militia clauses of the Constitution and Second Amendment and how the basic concepts of civic obligation and military preparedness were were manifest in the Militia Act of 1792. Militia duty was conscript duty.
There is a rough precedent for this kind of policy. During the Civil War there was a national conscription law, but, because the draft was so unpopular, it was never vigorously enforced. It was used as a threat against the states: You deliver your quotas to the Union Army or the Union government will invade your space and do it for you. The states delivered their quotas.

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