It's not about guns...

It's about citizenship

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http://www.potowmack.org/index.html
revised 03/05/2008


Assaulting Jim Zumbo

The NRA on Extremists

NRA scams its members

The Lionel Show
AirAm Radio's ignorant, crude, ugly,
air waves barbarian
Dear John Ashcroft
The armed populace doctrine at the DOJ
The Washington Post
cultivating ignorance.
Gun Policy News
news stories compiled daily.
"Sixty Minutes"
Failing its Mission
NPR's Diane Rehm
Civilized without Substance.
A longstanding dereliction.
Violence Policy Center
The public health agenda
falls in line with the NRA.
AFL-CIO
Getting it right but
failing its mission in the
larger struggle
Militia Act of 1792
To enroll— conscript, register

Return of Militia
Inventory of private weapons in
the early Republic reported to the
President of the US
History
John Kenneth Rowland
Lawrence Cress
John K. Mahon
Others
Pseudohistory
LaPierre's list

The Quotes, the Quotes
Fabricating the armed populace doctrine
Libertarians, Conservatives

Tenn. Law Rev., 1995

Chicago-Kent Symposium, 2000
What does the NRA want?


The former homepage has been moved to a new file. Addressing Gun Violence contains more information.

The homepage here as of March 5, 2008, will be replaced when full updates have been made.

Whither the United States of America?

This is where we get seriously political. Gun rights and gun violence involve the most vital and fundamental issues of political life. The fundamental issues are nowhere a part of public knowledge or consciousness. As we are assaulted almost daily by the news stories, there is no better example of a failed political culture than what is found right here.

Parker et al. v. DC Gov. is before the Supreme Court as DC Gov. v. Heller. All Heller briefs are at http://www.potowmack.org/heller.html. Walter Dellinger is a distinguish constitutional scholar. He will argue for the DC Government to the Supreme Court in Heller. The Potowmack Institute has offered Dellinger additional argument and information that is not contained in the briefs.

Whether the US Constitution is a frame of government or a treaty among sovereign individuals is serious business. It demands serious attention. Can we decide if we are citizens under law and government or individual sovereigns in the State of Nature which is the state of anarchy? Many lives and whole communities are at risk.

But first, how about this. The most striking part of the whole business is the ignorance and absurdity:

"Hutchison leads fight against District of Columbia gun control law", Dallas Morning News, Feb. 9, 2008):

    Speaking at the conservative Heritage Foundation on Thursday, Ms. Hutchison offered a spirited defense of the Second Amendment.

    "The founding fathers knew what they were doing when they put the right to keep and bear arms in the Constitution," she said. "Sometimes I like to ask gun control advocates what would have happened to the American Revolution if there has been gun control at the time. We all know the answer— there wouldn't be an America."

    Ms. Hutchison also argued that the law, which completely bans handgun ownership and requires rifles and shotguns to be registered, stored unloaded, and either locked or dissassembled, hadn't worked.

The report was on the 305 members of Congress (including John McCain) plus VP Cheney filing a brief in DC Gov. v. Heller.

Can we introduce into public consciousness that the statement is utterly preposterous? This anarchic nonsense is widely believed and costs many lives and destroys whole communities. The briefs in Heller argue that the "right to keep and bear arms" has its roots in the English legal tradition. No, the present American gun rights culture has its roots in the rebellious traditions of Scotland and Ireland which are not only not a part of the English tradition but have been constantly at war with it. If the militiamen in the 1770s were in the English tradition they were controlled and regulated on the King's militia roster. They were subject to militia call up. When the militiamen defied the King's authority and took up arms against the King, the King cried, "Treason!" and treason it was. There is no constitutional right to commit treason in the English or American constitutional tradition. The King's military commanders went to confiscate the militiamen's arms (from a public storehouse not from individuals). There was then a Revolution.

The Kennedy Administration created the Green Berets as a counter-insurgency military force. The Green Berets, as part of their training, studied Maoist revolutionary tracts. The Maoists learned about this and were concerned. They took the matter to Chairman Mao himself. Mao assured them that it was all right if the imperialists studied our revolutionary tracts because we have the one thing the imperialists do not have. We have the revolution. The American Revolutionaries had a revolution.

If today the National Rifle Association's "armed citizen guerrillas" should act out their childish political fantasy and take up arms against the governing authority created in the Constitution, will they have a revolution? Where will Senator Hutchison be? She is under oath of public office to preserve, protect and defend the Constitution of the United States against all enemies foreign and domestic . Treason is still treason and it is the only crime defined in the Constitution. Will Sen. Hutchison join the "armed citizen guerrillas" or will she fulfill her oath of office and defend the legal institutions of government against domestic enemies? The men who signed the Declaration of Independence, a charter for revolution, knew that if they failed in their revolutionary project they would all be hanged. Shall Sen. Hutchison then be doubly hanged, first, for violating her oath of office and then for treason. Are there differences between Second Amendment rights of the NRA's much ballyhooed "law abiding citizens", the Second Amendment rights of the NRA's "armed citizen guerrillas", the Second Amendment rights of those who want Texas to secede from the Union and those who speak Spanish and want to return Texas to Mexico from where it was once stolen? Will the United States government, like the King, send a military force to confiscate their guns? Will the courts intervene to protect their constitutional right to take up arms? Or, has the United States government forgotten what a government is? Do the American people know what a government is? Does Sen. Hutchison want to be faithful to her oath of office or does she want to be re-elected by anarchists and insurrectionists? Does she want to be hanged? Does Judge Silberman want to be hanged.

Apparently not. Judge Silberman's conclusions in Parker are a devastating repudiation of the gun lobby's core doctrine. Does Sen. Hutchison accept and support Judge Silberman's conclusions in Parker? See below. Can we do what the King did and the Militia Act of 1792 did and what Judge Silberman says we can do now? Can we register for militia call up? Can we then have some of those "restrictions" Judge Silberman finds "reasonable". Of course, DC's gun law has not worked as Sen. Hutchison says. It is foolish law to begin with but it is also unenforceable. Judge Silberman has given the powers of enforcement. Where is Sen. Hutchison?

But, no. Wait. A few lines further on Sen. Hutchison is quoted:

Now are we getting somewhere? Does Sen. Hutchison clarify this in her brief? The brief was written by the NRA's Stephen Halbrook. He argues that the court has to respect the will of the people as expressed in the will of Congress. Maybe the court will be sophisticated enough to know that the will of Congress is the will of NRA lobbyists. Halbrook is an NRA lobbyist. He is appealing to the court for special recognition of himself and his lobbying. That is crass self promotion. Regardless, might we hear from Candidate McCain and Veep Cheney on this? Will they send the NRA's "armed citizen guerrillas" on a suicide mission? They will not have fully automatic assault rifles, or hand grenades, or anti-aircraft artillery to defend themselves against the napalm air strikes. The National Firearms Act of 1934 requires that those weapons have a federal permit. There is no right to the permit protected by the courts. Like the king, Uncle Sam will come to confiscate them or he will call them out to fulfill their constitutionally mandated civic obligation to defeat the insurrection. They will have to make a choice. Where will Sen. Hutchison be? Will we learn about any of this in the gun lobby's most reliable asset, the one the NRA calls the "rabidly antigun Washington Post"?

This anarchic nonsense shapes our political life. It is now before the Supreme Court. There is no public consciousness that sees the anarchic nonsense for what it is. Where do we go from here? Can we at least get a national discussion going? Can we judge anarchic federal judges? Can we ask candidates who want to be under oath of public office as president of the United States a few simple questions: Do you accept and support Judge Silberman's conclusions. Will you appoint judges who will overturn them.


The DC Government filed its Reply Brief on March 5, 2008.
http://www.potowmack.org/hlDCRPLY.pdf
Although there are many important points in the letter below especially regarding insurrection and Justice Scalia's denial of a right to 14th Amendment incorporation, the most important arguments below to the lawyers who wrote the brief are missing. Those argument are that the reason that there is claim to a right for individual self-defense is because the gun lobby works very hard and very successfully to defeat any laws that would apply against the lawless, that Judge Silberman in his Parker conclusions denies the gun lobby the very right it wants and works hardest to have— the right to be armed outside of the knowledge and reach of government— by allowing for registration for militia call up, and that there are fundamental concepts in political theory— namely, that when individuals in the State of Nature form government and consent to be governed they give up precisely the "executive power of the law of Nature" — that is, the right to exercise force except as authorized and permitted by law.

The Constitution in the end, nevertheless, prevails even in Judge Silberman's opinion. The Supreme Court is not going to overturn his conclusions. The rule of law, the state's monopoly on violence, and the state's internal sovereignty still all mean the same thing. From there, a national firearms policy is a political struggle not a constitutional struggle. The political leadership that will overcome the poverty of public knowledge and public discourse is still missing. The DC government has so far failed itself.

February 14, 2008

Re: DC Gov. v. Heller

Walter Dellinger
O'Melveny & Myers LLP
1625 Eye Street, NW
Washington, DC 20006

Dear Walter Dellinger:

Look for this at http://www.potowmack.org/index.html. There are further comments. All Heller files are at http://www.potowmack.org/heller.html. In time, critiques will be added.

The Potowmack Institute was not able to file to the Supreme Court in Heller due to obstacles of expense and scheduling. The Bush Administration Department of Justice has petitioned the court to remand the case for future consideration. If this happens, we will be able to file the second time around.

The filing will be important because the courts still have not addressed very important arguments which the Potowmack Institute raised in its briefs in Emerson,
http://www.potowmack.org/emerarg.pdf, and Parker,
http://www.potowmack.org/parkarg.pdf.
I offer these arguments now for your benefit in the oral arguments.

There are fundamental issues. Even Judge Reinhardt in Silveira misses the most fundamental concept: The rule of law, the state's monopoly on violence, and the state's internal sovereignty all mean the same thing. The fundamentals are of political theory and not entirely of constitutional doctrine, history or linguistics. In the immediate case, the most important argument is this: The way we defend ourselves under law and government in civil society is to create legal categories of gun ownership that can be applied against the lawless. The reason why there is a claim to be privately armed for individual self-defense is because the gun lobby, led by the NRA, works very hard and very successfully to defeat any laws that would apply against the lawless because the same laws would apply against the "armed populace at large", which the NRA argued for without success to the Supreme Court in Perpich,
http://www.potowmack.org/nraperp.pdf,
http://www.potowmack.org/parkarg.pdf p. 6.
The "armed populace at large" is a collection of sovereign individuals who made a treaty not a government,
http://www.potowmack.org/2ndtreat.html#94,
http://www.potowmack.org/emerarg.html#fp33.
The laws would also apply even more strongly against the NRA's "armed citizen guerrillas"
http://www.potowmack.org/emerappd.html#ak47,
http://www.potowmack.org/parkappe.pdf, p. A-40
and others with insurrectionist fantasies.

Any hint of protection for a fundamental or procedural right to be privately armed outside of a military or militia context would validate not just a malignant, anarchic vision of social and political life but also an insurrectionist doctrine. The Constitution becomes perverted. It defines treason as the waging of war against the United States and then secures a civil right to commit the same. Several amici refer to the insurrectionist doctrine but do not emphasize the centrality of this in gun right ideologies, how widely it is adhered to, and its constitutional impermissibility. The right of armed self-defense includes the right of armed self-defense against the government itself, the same government the gun rights claimants want to secure the right.

Furthermore, any judicial hint, right down the placement of a comma, of protection for a right would be taken by gun rights militants to other courts to further the anarchic doctrine. As several amici argue, law enforcement and lawmaking would be stymied, confused and complicated for decades.

The ultimate goal in gun rights ideologies is no accountability to a governing authority. This is the essence of the libertarian fantasy that law and government can be dispensed with. The fantasy is that it is a viable concept. Accountability means specifically registration of ownership. Heller does not object to registration per se, but registration is what the gun lobby, led by the NRA, works hardest to prevent. Registration is the one point of policy the "armed populace at large" fantasy cannot accommodate,
http://www.potowmack.org/parkappd.pdf,
regardless that the Militia Act of 1792,
http://www.potowmack.org/emerappc.html,
required state militia officers to maintain inventories of privately owned weapons and report them to the state governors and the president of the United States. The gun rights militants will not retreat from the ultimate goal. Registration includes government retaining sales receipts and Instant Check records. This was most explicit in NRA v. Reno,
http://www.potowmack.org/nrareno3.html, where the NRA sought to prevent the FBI from retaining Instant Check records for longer than 24 hours. (The NICS system meanwhile was created to protect the "armed populace at large". Gun buyers with licenses and permits do not need to go through the check.)

Explicit clarification of the gun lobby's ultimate goal is the most important policy issue before the court. That includes an explicit clarification of Respondent's claim of an individual right to defend "society against tyrannical usurpations of authority" presumably at the Respondent's individual discretion or the discretion of some self-constituted group (Respondent's brief p. 27-31). Is an armed populace a constitutional check or limit? Emerson amicus, p. 7. When federal judges (Kleinfeld et al. in Silveira reh. dissent) speak of an anarchic "amorphous body" of the armed people and a "doomsday provision" the clarification becomes more critical to constitutional doctrine. If a law which restricts a fundamental right has to serve a compelling state purpose and be narrowly tailored, the right protected must serve a compelling, unambiguous purpose. The only compelling purpose the gun rights militants offer to be armed outside the law is revolution. Revolution is an unalienable right in the State of Nature not one of those certain unalienable rights secured by government in civil society. The Silveira dissenters give no credible, unambiguous purpose either.

The strategy in the courts would follow from the concealed weapon strategy in the legislatures. The gun lobby has had great success in changing conceal carry permit laws from "may issue" to "shall issue". The next step is to remove the permit requirement entirely. That has already started in some states. Gun rights true believers, meanwhile, do not get the permit because they do not want the malignancy of government to have their number
( http://www.cato.org/pub_display.php?pub_id=1143&full=1.
Search for "conversely).

When no one else will say so, a burden falls on the courts to tell some people they cannot have their childish political fantasy. Whether he knows it or not, Judge Silberman did exactly that. It has not, shall we say, registered on the gun rights militants yet, but they did not get what they want in the Judge Silberman's Parker opinion. It is not pointed out in any of the briefs that after many pages of fallacious fabrication of an individual right to be privately armed outside of any military or militia context Judge Silberman falls back on the original design and intent of the militia concept, p. 54:

Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability. Hey, these are the makings of a firearms policy. These must be, as they say, "reasonable restrictions." Who can take serious issue? Judge Silberman makes the right he seeks to invent and the gun lobby has to have perfectly meaningless.

High, enforceable standards for proficiency testing, public safety regulation, and militia suitability, decided by local needs, are the "reasonable restrictions" Judge Silberman accepts. Local regulations could vary widely as the several amici argue. However, if the right is to individual sovereignty, there are no "reasonable restrictions" because any governmental restrictions at all are a police state. Will the courts now intervene to microregulate "reasonable restrictions"?

The great need, however, is for a national firearms policy that shuts down the illegal traffic in firearms between and among jurisdictions. The Federal Government, whether through the legislative or judicial, does not need to microregulate gun ownership. Shutting down the illegal traffic is the essential power of enforcement for local jurisdictions. Judge Silberman has given the opportunity. Registration for militia call up and the reporting of private sales and transfers, strictly enforced, achieve that goal. The obstacles are political not constitutional.

The gun lobby, led by the NRA, would fight viciously any attempts to implement Judge Silberman's policy conclusions. Unless at least five justices on the Supreme Court become a constitutional loose cannon and go off on their own anarchic tangent, the Supreme Court is not going to overturn Judge Silberman's conclusions. Justices Scalia and Thomas, to whom the gun rights militants look to for their salvation, have made clear that Fourteenth Amendment incorporation is not on their agenda. Their objection is to the Federal Government's intrastate microregulation of guns.

There is much more that can be expanded on to shape possible points that could come up at oral arguments. Several amici mention that militia duty was conscript duty. Coerced civic obligation and military preparedness trump all other rights and considerations as Judge Silberman in the end appreciates. The original state based coerced civic obligation was resurrected and transformed in the twentieth century Selective Service Acts.

If the issue is addressing gun violence, the DC Government did not need to take this case to the Supreme Court. It needed only to take Judge Silberman at his word, abandon its unenforceable gun law, come up with a new law that it might be able to make work, and then to make it work for real petition the Federal Government for redress of the grievance that there is no national policy based on Judge Silberman's conclusions that addresses the illegal traffic in firearms between and among jurisdictions.

The biggest problem the District of Columbia has besides its own fail consciousness, failed leadership and lack of political savvy is the poverty of public knowledge and public discourse. The enormous volume of argument, history, and constitutional doctrine presented in the amicus briefs in the Petitioners' support are nowhere a part of the larger public consciousness. The political parties have abandoned the issue. The politicians from all persuasion pander to the gun vote. The news organs are completely derelict to enlighten the public. The gun controllers cannot get beyond gun safety. The scholars who signed on to the several amici have little presence in larger public discourse. The enclosures are further examples of failed political consciousness.

I don't think I need to tell Walter Dellinger that there is a great burden of historic responsibility to get this right. There is much more argument, documentation, research that expands on the arguments in this letter. If you or your staff would like to follow up on the additional sources and information, you may visit the website and you are welcome to contact me.

Your truly,
G. Eyclesheimer Ernst

cc:
to several lawyers involved in the case.

Enclosure include:
Letter to Leadership Conference on Civil Rights and about 30 cc's. No response.
Fax and email to Tavis Smily Group with about 100 cc's posing questions to Republican candidates on Judge Silberman's conclusions for their September 27, 2007 forum. No response from anyone. The questions were not asked.
Sue Wimmershoff-Caplan article
Richard Tawney article from 1931 reprinted in the Washington Post June 25, 1989, with these words highlighted.

Whither the United State of America?


More on the issues raised in the letter in a supplemental file:
1) Insurrection
2) Conscription
3) The Modern State
4) Fourteenth Amendment Incorporation
5) The Poverty of Public Knowledge


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