The Potowmack Institute

Appendix I
Potowmack Institute, amicus curiae
US v. Emerson, Fifth Circuit, Case No. 99-10331

[Much libertarian/gun lobby pseudoscholarship can be found at:
Second Amendment Foundation archive]

1. Abusing Federalist Paper No. 46,
    Madison in the Va. Ratification debates.
2. Abusing Federalist Paper No. 29
3. Patrick Henry's "That every man be armed."
4. George Mason, "I ask, sir, who are the militia?"
5. Joseph Story's "palladium" and other comments.
6. Federalist Paper No. 46 in the law reviews
7. Federalist Paper No. 46 in the Washington Post. .
8. John Adams, A Defence of the Constitutions of Government of the     United States of America.

[A List of files that provide fraudulent quotes on the internet are provide in the file "The Quotes, the Quotes".]

1. Abusing Federalist Paper No. 46. (Dist. Ct. Op., p. 14)

The most frequently quoted words to make the case for a personal or individual right to be armed are from James Madison's Federalist Paper No. 46. The NRA Member Guide (insert, American Rifleman, March, 1991) contains the words from this paragraph in usual distortion:

Madison's purpose in Federalist Paper No. 46 was to respond to Antifederalist fears of a strong central government and their strident opposition to ratification of the Constitution. He was not making cogent arguments in political theory. There is no implication in the passage below that Madison meant a individual right to be armed outside of accountability to public authority. Madison was describing a balance of power between state government and federal government, not Sue Wimmershoff-Caplan's "armed citizen guerrillas" (Appendix D) and any and all government. The militiamen, commanded by officers, were beholden to state government. The favorite words that are lifted out of context are in bold:

Madison provided other comments on the nature of governmental power and the function of the militia as an instrument of government:

The Debates in the Several State Conventions on the Adoption of the Federal Constitution
(3 Elliot's Debates 413)
Virginia, Monday, June 16, 1788.


2. Abusing Federalist Paper No. 29

Starting on page 66 of That Every Man Be Armed, Stephen Halbrook cites Thomas Jefferson and then jumps to the Federalist Papers to justify the right-to-arms as a right-to-insurrection:

Jefferson did write these words in reaction to Shays' Rebellion. He wrote from distant observation in Paris where he served for a few years as ambassador. He was not on the scene and had no responsibility to maintain public order. The fifty-five men we call the Framers of the Constitution were alarmed by Shays' rebellion and other less famous domestic disturbances. They were particularly alarmed by Shays' Rebellion because the militia had gone over to the side of the Rebellion. Without Jefferson, the Framers met in Philadelphia to write a new constitution that would create a strong government that could suppress these rebellions and also create a more viable political order that would prevent them from happening. Halbrook continues immediately:

The "original right of self-defense" is a right in the State of Nature not under law and government. The words in bold that follow from No. 29 are the words Halbrook quotes, the other words he leaves out. The words Halbrook uses by themselves prove his point, but in full context they defeat it. An important point is that individual right advocates make a great distinction between the "organized" or "select" militia and the "unorganized" or "sedentary" militia. The select militia in this consciousness is an instrument of the state and embodies the states' right not the individual right interpretation of the Second Amendment. The sedentary militia embodies the individual right interpretation and is extralegal. The individual right is the right the District Court has granted protection to in Emerson. Here, it has to be noted that in full context Hamilton is arguing for the select militia not the sedentary militia, the very opposite of what Halbrook represents. This is the work of true belief or outright dishonesty not objective scholarship:

Halbrook goes on to quote "...the advantage of being armed..." from Federalist Paper No. 46. The Second Amendment had not yet been written and Hamilton does not mention an individual right or the sedentary militia. He sort of suggests the possibility of a sedentary militia but only to deny its viability. To have his doctrine of libertarian republicanism, Halbrook radically distorts the meaning.


3. Patrick Henry's "That every man be armed." (Dist. Ct. Op., p. 14)

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 384-7)
Virginia, Saturday, June 14, 1788.

The context of "that every man be armed" was who would provide for the arming of the militia, the states or the federal government not a personal right.


4. George Mason, "I ask, sir, who are the militia?" (Dist. Ct. Op., p. 10, 13)

The context of "who are the militia?" was the composition of the militia, not the personal rights of militia men.
The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 425)
Monday, June 16, 1788.
[more on these words at .../thequotes.html#mason]


5. Joseph Story's "palladium" and Other Comments (Dist. Ct. Op., p. 19)

Similarly, Story's words are lifted out of context:

Story's words "system of militia discipline" and "to be rid of all regulations" imply that discipline and regulation are imposed from above by law. The militia was not self-constituted.

Other passages from Story enlighten his observations:


6. The Meaning They Seek: Federalist Paper No. 46 in the law reviews

At the end of his book, Gun, Crime, and Freedom, NRA Executive Vice President Wayne Lapierre, lists four so-called "antigun states' right" law review articles and 32 so-called pro-"individual rights view" law review articles. About half of these cite from Federalist Paper No. 46 sometimes in full context. The words in context do not support a personal right. Here is how the words are used when cited:

1. William Van Alstyne, "The Second Amendment and the Personal Right to Arms," forthcoming 43 Duke Law Journal #6 (April 1994)

2. Akhil Amar, "The Bill of Rights and the Fourteenth Amendment," 101 Yale Law Journal 1193, 1205-11, 1261-2 (1992)

3. Don B. Kates, Jr., "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (1992).

4. Elaine Scarry, "War and the Social Contract: The Right to Bear Arms," 139 University of Pennsylvania Law Review, 1257 (1991)

5. David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," 101 Yale Law Journal 551 (1991).

6. Robert J. Cottrol and Raymond T. Diamond, "The Second Amendment: Toward an Afro-Americanist Reconsideration," 80 Georgetown Law Journal 309 (1991).

7. Akhil Amar, "The Bill of Rights as a Constitution," 100 Yale Law Journal 637 (1989).

8. Sanford Levinson, "The Embarrassing Second Amendment," 99 Yale Law Journal 637 (1989).

9. Don B. Kates, Jr., "The Second Amendment: A Dialogue," 49 143 (1986).

10. Joyce Lee Malcolm, Essay Review, 54 George Washington University Law Review 582 (1986).

11. Smith Fussner, Essay Review, 3 Constitutional Commentary 582 (1982).

12. Robert E. Shalhope, "The Armed Citizen in the Early Republic," 49 Law & Contemporary Problems 125 (1986).

13. Stephen P. Halbrook, "What the Framers Intended: A Linguistic Interpretation of the Second Amendment," 49 Law & Contemporary Problems 153 (1986).

14. Don B. Kates, Jr., "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review 203 (1983).

15. Glenn H. Reynolds, "The Right to Keep and Bear Arms Under the Tennessee Constitution," forthcoming in 61 Tennessee Law Review #2 (Winter, 1994)(extensively discussing the Second Amendment in "Firearms Purchases and the Right to Keep Arms," 96 West Virginia Law Review 1 (1993).

16. Stephen P. Halbrook, "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," 26 Valparaiso University Law Review 131 (1991).

17. Stefan B. Tahmassebi, "Gun Control and Racism," 2 George Mason Civil Rights Law Journal (1991).

18. Bernard B. Bordenet, "The Right to Possess Arms: the Intent of the Framers of the Second Amendment," 21 University West Los Angeles Law Review 1 (1990).

19. Thomas M. Moncure, Jr., "Who is the Militia— The Virginia Ratifying Convention and the Right to Bear Arms," 19 Lincoln Law Review 1 (1990).

20. Eric C. Morgan, "Assault Rifle Legislation: Unwise and Unconstitutional," 17 American J. Criminal Law 143 (1990).

21. Robert Dowlutt, "Federal and State Constitutional Guarantees to Arms," 15 University Dayton Law Review 59 (1989).

22. Stephen P. Halbrook, "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment," 15 University Dayton Law Review 91 (1989).

23. David T. Hardy, "The Second Amendment and the Historiography of the Bill of Rights," 4 Journal of Law & Politics (1987).

24. Nelson Lund, "The Second Amendment, Political Liberty, and the Right to Self-Preservation." 39 Alabama Law Review 103 (1987).

25. David T. Hardy, "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harvard Journal of Law & Public Policy," 559 (1986).

26. Robert Dowlut, "The Current Relevancy of Keeping and Keeping and Bearing Arms," 15 U. Balt. L. For. 32 (1984).

27. Joyce Lee Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition." 10 Hastings Constitutional Law Quarterly 285 (1983).

28. Robert Dowlut, "The Right to Arms," 36 Oklahoma Law Review 65 (1983); David I. Caplan, "The Right of the Individual To Keep and Bear Arms," Det. Coll. L. Rev. (1982).

29. Stephen P. Halbrook, "The Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791," 10 Northern Kentucky Law Review. 138 (1982).

30. Alan Gottlieb, "Gun Ownership: A Constitutinal Right," 10 Northern Kentucky Law Review 113 (1982)..

31. Richard E. Gardiner, "To Preserve Liberty— A Look at the Right to Keep and Bear Arms," 10 Northern Kentucky Law Review 63 (1982). Note, "Gun Control: Is It a Legal and Effective Means of Controlling Firearms in the United States?" 21 Washburn Law Journal 244 (1982).

32. Stephen P. Halbrook, "The Jurisprudence of the Second and Fourteenth Amendments." George Mason Law Review 1 (1981).


7. Federalist Paper No. 46 in the Washington Post.

The NRA refers to the Washington Post as the "rabidly antigun Washington Post." From the interests of the NRA the record is otherwise. Not only does the Washington Post not challenge the fundamental concepts of the gun lobby's armed populace fantasy but publishes uncritically and in relative abundance the misrepresentations on which the fantasy is based. The Washington Post is the best illustration of the poor quality of public discourse on what is really at stake in firearms policy and the refusal to take up the relationship between citizen and state. It is rather ironic that the Federalist Papers were originally published as columns in the newspapers to encourage ratification of the Constitution. The fundamental concepts come up for renewal every few generations. They are up for renewal now. The Washington Post is absent.

A. Wimmershoff-Caplan, July 6, 1989, Appendix D.
B. Robert Cottrol, Nov. 10, 1990.
C. George Will, March 21, 1991.
D. Letter to the Editor, December 23, 1993
E. "A Second Look at the Second Amendment," Joan Biskupic, May 20, 1995.

A. Wimmershoff-Caplan, July 6, 1989, in Appendix D.

B. Robert Cottrol, Letter to the Editor, Washington Post, November 10, 1990

"Our Rights, Our Guns"

Cottrol makes much the same argument as the District Court. Cottrol is co-author of #6 on LaPierre's list in Guns, Crime, and Freedom: "The Second Amendment: Towards and Afro-Americanist Reconsideration," 80 Georgetown L. J. 309 (1991). This amicus argues that the militiamen were citizens under law and government not individual sovereigns, laws unto themselves, in the State of Nature. Cottrol wants to fabricate out of the requirement that the militiamen were required to provide their own weapons a civil right to be secured by government. He does not mention that the militiamen were enrolled on a registry both by the King before the Revolution and by the Militia Act after the Revolution. The requirement that the militiaman provide his own weapon was a form of taxation not a civil right.


C. "America's Crisis of Gunfire"

George F. Will, Washington Post, March 21, 1991.

Will concludes with the recommendation that the Second Amendment be repealed as if the courts were actively applying the Second Amendment to strike down any and all laws which regulate individual gun ownership. He made the same recommendation on December 15, 1991, on ABC's Sunday morning program "This Weeks with David Brinkley." He was surrounded by news professionals Hodding Carter, Sam Donaldson, and Brinkley. All four demonstrated their ignorance of the Bill of Rights and how it works. This is the quality of public discourse. Will has a PhD (Princeton, 1968) in political science. Apparently understanding the difference between citizenship under law and government and individual sovereignty in the State of Nature was not part of his course of study.

D. Letter to Editor, Washington Post, December 22, 1993, A 20.

"Guns for the People, Not the State"

Important words here are "standing army" and "prohibitionists". The first is the true context. The second is the political cynicism.

(A copy of this letter was supplied to the court. The Potowmack Institute does not have copyright permission to reproduce the full letter here.)

E. "Guns: A Second (Amendment) Look," Joan Biskupic, Washington Post staff writer, April 10, 1995, A 20.


8. John Adams, A Defence of the Constitutions of Government of the United States of America, p. 474-5 (1787-88):

The quotes can be used both ways. Stephen Halbrook writes in "To Bear Arms for Self-Defense:," The American Rifleman, November, 1984:

But, in "To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791," 10 Northern Kentucky Law Review 13, 1982, he writes:

Halbrook's second use convey's the true meaning but the first misuse is how the words are usually cited. Halbrook certainly knows the difference between the two meanings. He goes beyond the true belief of a libertarian deliverer to intellectual dishonesty. Here is the full context (amicus, p. 4):

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