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last revised 06/02/05

Arguments developed here receive other treatment in Potowmack Institute files:
The Rule of Law
Charlton Heston Speaks
A National Firearms Policy
The Rightwing Movement

This brief makes mention of the right and need of government to know what the militia resources are. The Potowmack Institute did not find the inventory of militia resources, called "Return of Militia," authorized by the Militia Act of 1792 until after this brief was filed. The Return of Militia included lists of privately owned weapons. There were no objections in the early Republic to the inventory requirement of the Militia Act rather disproving any idea of a right to be armed outside of the knowledge and reach of law and government. That is the right the gun lobby seeks today.


OCTOBER 16, 2001. Emerson ruling

http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm

http://writ.news.findlaw.com/amar/20011102.html

http://writ.news.findlaw.com/dorf/20011031.html

http://www.saf.org/pub/rkba/news/EmersonFix.htm

DECEMBER 5, 2002. Silveira v. Lockyer ruling

http://www.potowmack.org/silveira.html

Early Comments:
http://www.nationalreview.com/comment/comment-volohk120602.asp

http://www.nytimes.com/2002/12/06/national/06GUNS.html?ex=1040282622&ei=1&en=79f44c130cda179f

http://www.law.com/jsp/article.jsp?id=1039054410124

Like Judge Parker in Emerson, Judge Magill in Silveira objects to the unnecessary arguments. If the 5th Circuit has politicized the judiciary then the 9th Circuit has offered a counter politicization. The substantive debate and discussion have not been taken up in the political arena, in the news media, or among the falsely polarized advocates so the burden of responsibility might just as well fall on the judiciary.

February 18, 2003. Nordyke v. King ruling

http://www.potowmack.org/nordyke.html
Another opinion that treats the Second Amendment in a Ninth Circuit case.

US v. Emerson did provided a very great but sadly missed opportunity to engage in public debate and to elevate and expand public discourse on what is really at stake in the struggle over firearms regulations. We did not get that with Emerson and we haven't gotten it with Silveira Poor Emerson did not fare well. He wins and he loses. He has his precious individual right, but it means nothing as a matter of the privileges and immunities of citizenship as secured in law. Emerson was sent back to the District Court for trial and was enventually convicted.

What we did get in Emerson was Judges Garwood and DeMoss going out of their way to provide many pages of Second Amendment obiter dicta not related to the outcome of the case. Judge Garwood was looking for the opportunity. He wrote in footnote 46 in US v. Lopez (Fifth Circuit opinion, 1993):

The dicta are a gratuitous political sop to the gun lobby and the Libertarian Right which they will use to great benefit. There will be many more additions to the long lists of quotes that add up to nothing of legal or constitutional consequence.

The ubiquitous passage from Madison's Federalist Paper No. 46 shows up again:

This is the NRA version as stated in the NRA Member Guide (insert, American Rifleman, April 1991): Judge Reinhardt in Silveira v. Lockyer gives a different reading, but neither court addresses the fundamental relationship between citizen and state or appreciates that the "military establishments" of Europe were the regular armies of empire different from the republic right of the people to participate as citizen soldiers in the military functions of the state manifest conscript militias. In the United State the original opposing concepts were combined in the twentieth century Selective Service Acts.

We know that the Senate Judiciary Committee report of January, 1982, "The Right to Keep and Bear Arms," which has been used with great demagogic effect was written by NRA operatives. We can suspect that Attorney General Ashcroft's May 17, 2001, letter to the NRA was written with the collusion of NRA operatives. It did coincide with the NRA convention. Can we now suspect that the obiter dicta in Emerson were written with the collusion of NRA operatives? They probably weren't but that does not matter. The demagogic effect is the same. What the dicta prove is the pervasiveness of right wing anti-government, anti-state, anti-law ideologies and the failure of everyone else to address them. Emerson's appeal to the Fifth Circuit en banc— that is, all the judges on the Fifth Circuit— was rejected. The Fifth Circuit could have striken Garwood's personal opinion out of the record as out of order and disruptive to other cases in the Fifth Circuit. Emerson's appeal appeal to the Supreme Court was denied.

The gun controllers marginalized the significance of Emerson. They thought this was a legal and constitutional no-brainer. So far they have lost the demagogic contest. The news organs and the politicians almost completely ignored both cases.

Judge Garwood’s opinion, with no force in law, will serve the same demagogic public relations purpose as the Senate Judiciary Committee report and the Ashcroft letter. The opinion has already been proclaim under one title as, "A Big Win for the Insurrectionists." Are federal judges who are under oath of public office to preserve protect and defend the Constitution against all enemies foreign and domestic in the business of giving "wins" to insurrectionists? It is still nevertheless true, as we pointed out in our amicus brief, that James Madison, Patrick Henry, and Joseph Story were not describing the civil rights of private individuals to be armed outside of the law. It is abundantly clear from the history of the early Republic that the militia clauses of the Constitution, the Second Amendment and the Militia Act of 1792 (our Appendix C) were about the disposition of military force. None of the sources of the long lists of quotes which abound in gun lobby pseudoscholarship, on the internet and in Judge Garwood’s opinion objected to the inventory requirement of the Militia Act. Absolutely no one between 1792 and 1903 (when the Militia Act was replaced by the Dick Act which was an act of military reorganization) expressed any objection to the inventory requirement. Whatever individual right there was was not a right to be armed outside of the knowledge and reach of government.

Private individuals can have an individual right to gun ownership right up to the point of a right to individual sovereignty. The right to individual sovereignty expressed as the "armed populace at large," the right to be armed outside of any legally authorized or permitted purpose (our Appendix H), is what the NRA argues for explicitly in briefs its has filed in other cases in federal court (.../nraperp.html, .../pzpet.html .../nrareno3.html). There can be no right secured by government to individual sovereignty. Individual sovereigns by definition do not consent to be governed, do not give "just powers" to government, do not "surrender up the executive power of the law of Nature," do not recognize a higher authority that gives binding law. They make a treaty not a government. The Fifth Circuit would have needed to look no farther than our amicus brief to find this adequately stated. There is no indication that the judges gave any serious attention to the amicus briefs — for or against.

Judge Garwood's opinion although citing David Young's Origins of the Second Amendment as his source reads like a Stephen Halbrook's tract. He even quotes from Noah Webster:

It is quite a stretch to go from these words to a right to be armed outside of the law, outside of the knowledge and reach of government. Judge Garwood is only hedging a little bit from NRA sham and fraud. As many times as the real meaning has been pointed out, the NRA’s Stephen Halbrook continues to read a preposterous meaning into Webster's words. He cites them again, more selectively than Judge Garwood, in his amicus brief for the Texas Justice Foundation:

Arms in Webster’s definitions include "war," "hostilities," and "the ensigns armorial of a family." A "stand of arms" was the unit of the day of a soldier’s ordinary military equipment. One definition of coat is "that on which ensigns armorial are portrayed; usually called a coat of arms." Properly read the words would convey: "bear arms in a coat [of arms]," not walk the streets with a concealed weapon in one’s coat pocket.
See full text of Webster's definitions at:
http://www.potowmack.org/thequotes.html#noah
Judge Garwood nevertheless gives his implicit endorsement to this absurdity. One would hope that federal judges have some concern that they not make themselves into laughing stocks. The Fifth Circuit en banc did not remove this foolishness from the record. The endorsement will be used to great demagogic effect. There is nothing else in Judge Garwood’s personal sentiments or Stephen Halbrook’s compulsive ideological formulations that are any more credibile. More on Halbrook at:
http://www.potowmack.org/emerarg.html#halbrook, and
http://www.potowmack.org/emerappi.html#halbrook.

The most significant part of the Emerson opinion is Judge Parker's opinion. Judge Magill in Silveira made a similar point:

A greater harm may be that Judge Parker does not seize the opportunity to explain the difference between citizenship under law and government and individual sovereignty in the State of Nature. He does not explain how there can be an individual right if it contains in it a right to revolution or insurrection.

Nothing fundamental has been resolved in law or the public mind and we are still not likely to see any substantive debate or meaningful public enlightenment. US v. Emerson may well prove to be as politically siginficant as Roe v. Wade but still with great credit to the "rabidly antigun" Washington Post few people have heard of it. We still don't know if citizens, gun owners and nongunowners alike, are citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy. We still don't know if the Constitution is a frame of government with "just powers" that derive from the consent of the governed or a treaty among sovereign individuals who give no more than word of honor and promise of good faith. The "rabidly antigun" Washington Post still will not print in full context what James Madison was really describing in Federalist Paper No. 46. See Appendix I. The gun controllers will still be suing the gun manufacturers and promoting trigger locks. We will get more of the same business as usual: small-minded, cynical, obstructionist politics. The gun lobby still has not won a legally or constitutionally meaningful individual right but the gun lobby has another demagogic club in its arsenal to defeat legislation as if defeating legislation is what secures a right.

A real issue becomes, what kind of "Patrons of Anarchy" (see Ashcroft letter, August 31) have been placed on the federal judiciary in past twenty years who do not know the difference between civil society and anarchy? That will not be taken up either nor will the outrageous politicization of the federal judiciary to support a preposterous ideological agenda.


Chief Jusice Rehnquist wrote in The Supreme Court (1987):


CASE NO. 99-10331

_________________________________

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

APPELLANT,

v.

TIMOTHY JOE EMERSON,

APPELLEE.

_________________________________

Brief of Potowmack Institute

AMICUS CURIAE IN SUPPORT of APPELLANT

________________________________

Potowmack Institute, Inc.


Available in PDF at
http://www.potowmack.org/emerarg.pdf

Summary of Argument

Argument

I. The District Court Erred By Confusing Natural Rights With

Civil Rights To Create a Personal Right to Arms Independent of

Sovereign Government Authority

    a. The Formation of Political Community

    page 3

    b. To Bear Arms

    page 8

    c. The Right to Revolution: Hidden Content

    page 10

    d. The Libertarian Fantasy: Hedging Consent

    page 14

II. The District Court Erred by Confusing the Second Amendment's

True Legacy, the historical Right to be Armed as Part of a Citizen

Soldiery, with a Personal Right to Arms Outside of the Rule of Law

page 20

III. The District Court Erred in Confusing a Right to Self-Defense

Within the Rule of Law with a Right of Self-Defense Outside of the

Rule of Law

page 24

IV. The District Court Erred in Framing the Issues as One of a Conflict

between a "Collective" versus "Individual"Right Interpretation of the

Second Amendment

page 25

i

V. Political Cynicism

page 28

VI. Conclusion: Securing New Rights

page 31

Certificate of Service

page 33

Certificate of Compliance

page 34


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Summary of Argument

THE DISTRICT COURT has granted Timothy Emerson's Motion to Dismiss

his Indictment under 18 U.S.C. 922(g)(8) as an unconstitutional exercise of

congressional power. The District Court reasons that only if the Second

Amendment guarantees a "personal right to bear arms" and "an individual right to

keep and bear arms" independent of any militia organization can Emerson "claim a

constitutional violation." (Dist. Ct. Op., p. 4) The overwhelming case history has

found only a collective right in the Second Amendment. The District Court

discounts the case history and relies heavily on law journal articles to find a

personal right.

The personal right the District Court seeks to find in the Second Amendment

involves the fundamental relationship between citizen and state. In arriving at a

personal right the District Court embraces two confusions present in contemporary

gun rights politics: 1) between natural rights and civil rights; 2) between a personal

right and the people's right to participate in the military functions of the state. The

District Court touches on the individual right-to-arms as a right to self-defense and

strongly implies a right to revolution. This amicus will give notice to these two

dimensions of the individual right-to-arms and will introduce two other dimensions:

Page 1 of 34

the libertarian fantasy and the individual right's place in contemporary political

cynicism.

This amicus will examine the historical and political theory validity of the

District Court's personal right and find there can be no personal right of the sort

claimed. Rather than an orphan of the Bill of Rights, as suggested (fn46) by this

court in US v. Lopez, the true legacy of the Second Amendment is found in the

citizen soldiers of twentieth century selective service acts. To "bear arms" had a

military meaning (Rowland, Appendix A).

Page 2 of 34

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Argument

I. THE DISTRICT COURT ERRED BY CONFUSING NATURAL RIGHTS WITH CIVIL RIGHTS TO CREATE A PERSONAL RIGHT TO ARMS INDEPENDENT OF SOVEREIGN GOVERNMENT AUTHORITY

a. The Formation of Political Community

John Locke's The Second Treatise of Government is as much American

political scripture as the Declaration of Independence, the Constitution and The

Federalist Papers. In the State of Nature the individual is sovereign and lives by

natural law. In Locke, the individual in the State of Nature is "absolute lord of his

own Person and Possessions, equal to the greatest, and subject to no Body."

However, the State of Nature is "full of fears and continual dangers" because there

is no agreement on natural rights. The sovereign individual enters into political

community to secure "lives, liberties and estates." Security requires first,

"established, known, settled law;" second, "a known and indifferent judge, with

authority to determine all differences according to established law;" and, third, "a

power to back and support the Sentence when right, and to give it due execution."

(§§ 123-130).

Page 3 of 34

When an individual quits the State of Nature and consents to be governed, he

quits "everyone his Executive Power of the law of nature [the power to make and

enforce law], and resign[s] it to the publick. . ." (§ 89). The individual also "has

given the right to the Commonwealth to imploy his force, for the Execution of the

Judgments of the Commonwealth. . ." (§ 88). "[H]is force" becomes "the force of

the community" (§ 3). The power created by the consent of the governed is

sovereign public authority, although Locke never uses the phrase or, "just

powers" in the Declaration of Independence , and it resides in the political

community. Locke ends The Second Treatise:

The District Court finds it absurd that a court order "can collaterally and

automatically extinguish a law-abiding citizen's Second Amendment rights." (Dist.

Ct. Op., p. 27) It cites the academic literature that "an individual right is inherent

in the concept of ordered liberty" and "if this right were not protected, the existence

of the militia, and consequently the security of the state, would be jeopardized."

(Dist. Ct. Op., p. 6) The District Court has what is absurd exactly backwards. To

secure rights a state must have the "just powers" that are surrendered to it. If a state

Page 4 of 34

recognizes and secures a right to be armed independent of law and public authority,

the state jeopardizes itself, its "just powers," and any "concept of ordered liberty."

At the time of the American Revolution and the framing of the Constitution,

everyone studied Locke. Thomas Jefferson adapted the concepts in the Declaration

of Independence from Locke. The Declaration of Independence, however, was a

charter for revolution. It asserted a natural right to revolution when political power

had reverted to the people. A civil right is secured by government. The two never

intersect. The Constitution was about instituting new government. The state of

New Hampshire went so far as to write the fundamental concept and process into its

1784 Bill of Rights:

James Wilson, one of the 55 Framers, argued for ratification before the

Pennsylvania ratifying convention:

The Framers and ratifiers had great concerns about the sovereign political power

they were creating, but they had no illusions that they were creating a sovereign

Page 5 of 34

government under law but with "just powers". Alexander Hamilton wrote in Federalist Paper No. 33 (Rossiter, p. 204):

When citizens consent to be governed, they create a higher authority. When

sovereign states make a treaty, they do not. John Adams located the militia within

public authority (Adams, p. 474-5):

The English historian Richard Tawney exquisitely contrasted public authority and

secular sovereignty in the West with the political culture of China:

Page 6 of 34

President Lincoln in his First Inaugural gave another perspective: Also:

The checks and limitations on sovereignty are contained within the legal political

order itself through separation of power, checks and balances, a bill of rights,

regular elections, and free institutions that provide civic enlightenment and

vigilance. In present gun rights consciousness, an armed populace, called the

"sedentary" or "unorganized" militia, possessing a personal right-to-arms and

unbeholden to any public authority, is the ultimate check on state power. (Appendix

B) A contingent of extralegal armed force, active or passively threatening, created

by a personal right, is not a check or limitation on sovereignty. It is a rival

sovereignty. An individual right that creates the vague threat of an armed check or

limitation on sovereignty is the essence of political cynicism, the opposite of a civic

culture of public trust created by common agreement on the fundamental law of a

Page 7 of 34

constitution.

No matter how the state and the contours of the state are defined and

constituted, the state is public authority and public authority is sovereign. The

personal right the District Court and the literature it cites seek to find in the Second

Amendment is the right to be armed prior to and independent of any law or state

interest. Carried to its logical conclusion, the right denies the consent to be

governed and repudiates the very concept of sovereign public authority created in political community.

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b. To Bear Arms

The right in the Second Amendment whether taken to be individual or

collective had a different purpose. To "bear arms" describes a military function.

(Rowland, Appendix A) The militia was an alternative form of military

organization to the regular army. John Adams' "private self-defense" (supra, p. 4)

was not mentioned in the states' militia amendment proposals (Rowland,

dissertation, p. 401). The larger context was the republican right of the people to

participate in the military functions of the state rather than leave those functions up

to the King's regular army, "a separate order of the state" (Dist. Ct. Op. p. 12),

which in the eighteenth century was usually composed of mercenaries, foreigners,

Page 8 of 34

and/or social misfits. The militiamen were citizen soldiers rooted in their

communities. (Cress) The very quotes the District Court provides describe the

militia explicitly as an opposing concept to the regular army. The right was not a

right against any and all government. The Militia Act of 1792, enacted by the same

people who ratified the Second Amendment, expressed the eighteenth century

concept of the militia and what it imposed on individuals. The Militia Act required

the states to "enroll"— that is, register— militiamen. (Appendix C). Militia duty

was conscript duty. The regular army was not. The dozens of state militia acts that

followed from the national act were loaded with rules imposed on gun owners.

There were no protections mentioned for a personal right to be armed independent

of militia that the District Court and others seek to find.

Rights conferred by the Second Amendment were still contained within

sovereign public authority. Consistent with the "right to imploy his force," the

Constitution makes the President the Commander-in-Chief of the militia and gives

Congress the authority to call out the militia. The states, the President and the

Congress have a right and need to know who the militia are and what the militia

resources, as a national resource, are. That requirement denies any right to be

armed prior to and independent of law and government.

Page 9 of 34

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c. The Right to Revolution: The Hidden Content

The District Court describes the individual right to bear arms, embodied in

the militia institution, as the crucial factor in the Revolution that prevailed over the

British Army and asserts from this that "through the Constitution" "the American

founders sought to codify the individual right to bear arms." (Dist. Ct. Op., p. 11)

It is strongly implied in the District Court's Opinion and explicitly stated by others

that the individual right to arms is a right to revolution or a right to threaten

revolution. The King put it accurately that the Revolution was treason, but the

period 1774-76 was a revolutionary situation. The Declaration of Independence

was a moral justification for a revolution that had already taken place in spirit.

There was a critical mass in the general population to support the treason. The

Declaration invoked a natural right not a civil right. The Constitution instituted new

government. It secures civil rights. The District Court embraces the great confusion

between natural rights and civil rights. The Constitution would be perverted if it

defined treason as the waging of war against the United States and then guaranteed

a civil right to do the same.

To invent an individual civil right, the District Court exalts the militia to a

status of revolutionary and military competence it did not have. The Continental

Army with much help from the French Army won the War of Independence.

Page 10 of 34

Observations from that period on militia deficiencies are legend. (Appendix C).

Nevertheless, the right to revolution, possessed even by individuals, is read

into the Second Amendment. The assertions are explicit (expanded context in

(Appendix D):

Sue Wimmershoff-Caplan, a member of the National Rifle Association's National

Board, wrote in "The Founders and the AK-47," Washington Post, July 6, 1989:

Modern military machines are maintained by governments. There is no distinction

here among governments. Meanwhile, a proper AK-47 is a machine gun requiring a

federal permit.

The NRA's Executive Vice President Wayne LaPierre wrote in Guns, Crime and

Freedom (1994), p.7:

Page 11 of 34

The people do have a right to use force to abolish oppressive government. It is a

natural right, a moral right, a God-given right, but it is not one of those "certain

unalienable rights"— not an individual civil right— that can possibly be secured by

government.

David Kopel, a prolific individual right advocate, wrote in "Trust the People: The

Case against Gun Control," Cato Institute Policy Analysis No. 109 (1988) explicitly

in the context of gun ownership:

The Second Amendment Foundation asserted in its amicus (Appendix E) in US v.

Francis J. Warin, 530 F.2d 104 (1976), and sought Second Amendment protection

for:

Speaker of the US House of Representatives Newt Gingrich wrote in his book To Renew America (1994), p. 202:

Page 12 of 34

No one has inquired into what a "political right" is in this context.

In The Second Treatise the right to revolution was an appeal "to Heaven"

(§ 242) not to civil authority. It was the collective right of "the body of the people,"

(§ 242) but under rare circumstances: "For till the mischief be grown general, and the

ill designs of the Rulers become visible...the People are not apt to stir." And not

without ambiguity: Whether the mischief has begun "in the Peoples wantonness" or

"in the Rulers Insolence...I leave it to impartial history to determine. This I am sure,

whoever, either Ruler or Subject, by force goes about to invade the Rights of either

Prince or People, and lays the foundation for overturning the Constitution and Frame

of any Just Government, is guilty of the greatest Crime" (§ 232).

Locke quotes William Barclay, a monarchist, to make his point:

A revolution starts out as treason and only becomes patriotism when successful. A

government which indulges these sentiments as anything more than abstract

principles paralyzes itself and the political culture with pernicious political cynicism.

Page 13 of 34

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d. The Libertarian Fantasy: Hedging Consent.

An explicit right to revolution is a more extreme purpose for a personal right

to be armed outside of lawful authority than most can safely assert. A more

insidious hedge on the consent to be governed is the libertarian fantasy. The

individual right becomes a right to maintain a balance of power between a privately

armed populace and any and all government. The operating concept is individual

sovereignty. At best, it expresses a severe difficulty accommodating to public

authority, and the latent right to threaten revolution puts the individual in a tenuous

relationship with the state. "Individual sovereignty" and the "right to political

secession," applied even to individuals, are planks in the Libertarian Party Platform

(Appendix F). The concept of individual sovereignty reduces the Constitution to a

treaty, as per Hamilton supra, p. 6, among sovereign individuals who give no more

than their good faith. It is an expression of a demoralized public mood and a

defeatist retreat from political life:

Senator Ted Stevens of Alaska stated in the course of the Brady Law debates:

No one has inquired into the Senator's meaning.

Page 14 of 34

The District Court cites from Sanford Levinson's "The Embarrassing Second

Amendment" seven times. Levinson wrote (p. 651):

Does this citizenry consent to be governed, give political obligation, give "just

powers" to government, and give "a right to the Commonwealth to imploy" its

force? Or, did sovereign individuals make a treaty? Levinson references Sue

Wimmershoff-Caplan above with approval.

The District Court cites Stephen Halbrook, That Every Man be Armed, five times.

Halbrook argued Printz for the National Rifle Association before the Supreme

Court. Halbrook writes ( p. 8-9):

Page 15 of 34

The populace is armed first, consents to be governed second. There is no word on

to whom those who are not armed are beholden.

Halbrook's competition between authoritarian absolutism and an armed

populace is a preposterous characterization of the development of western political

concepts, values, and institutions; but, if the armed citizenry consents to be

governed and keeps its weaponry— its executive power— outside of accountability

to public authority in case things don't go right in political processes, then it never

consented to be governed at all. It created political cynicism, not "just powers" of

government.

Short of overt revolutionary intentions, the libertarian fantasy puts the

Page 16 of 34

individual into a permanent pre-revolutionary situation. The personal right the

District Court and the literature it cites seek to find in the Second Amendment is the

political cynicism of a civic limbo between political community and anarchy. The

armed citizenry will have it both ways. It will have rights in the State of Nature,

before there was law and government, and it will also have law and government to

secure its rights and to make laws. However, the armed populace gives no

meaningful obligation and the laws only apply to someone else. We give absolute

individual freedom. Positive law becomes a code of ethics. There are no

mechanisms for effective law enforcement, no prior restraint. In a prescription for

authoritarian justice, the force of the community applies draconian punishment by

example after the code of ethics has been violated. The cynicism is nowhere more

explicit than in firearms policy. We see the collateral damage in the daily news.

Ernest van den Haag, the John M. Olin Professor of Jurisprudence and Public

Policy at Fordham University, described the implications in "Libertarians &

Conservatives," National Review, 1979 (Appendix G):

A phrase heard among personal right claimants is "an armed society is a polite

society." Diplomacy is very polite, but, because sovereign states recognize no

Page 17 of 34

higher law, when differences become irreconcilable and communication breaks

down, sovereign states go to war. Van den Haag, in the same article:

(Appendix H for source of monopoly on force).

The libertarian fantasy starts with legitimate concerns about the role and

amount of government in our lives and forms a continuum that spans from yahoos

holed up in a farmhouse on the prairie in defiance of all authority to the respectable

towers of legal academia. The subtitle to Stephen Newman's Liberalism at Wits'

End is The Libertarian Revolt against the Modern State. The scholarship the

District Court cites is ideological. The libertarian fantasy is a manifestation of the

libertarian revolt.

The libertarian fantasy has become a civic religion and has its true believers.

Just as the District Court exalts the militia into revolutionary and military

competence it did not have, the "legal scholars" find the meanings they seek.

Page 18 of 34

The District Court cites from the legal scholarship James Madison's "the advantage of

being armed" from Federalist Paper No. 46, Patrick Henry's "That every man be

armed" from the Virginia ratification debates and Joseph Story's "the palladium of

the liberties of a republic" from his Commentaries on the Constitution (1833)

(expanded context in (Appendix I).

Madison's words in context do not support a personal right to be armed prior

to law and government:

Likewise, Henry's words do not support the claim:

The "objective" was part of a question, Who shall arm the militia (an instrument of

government in this context), the states or the federal government? So also are

Story's words lifted out of context. Story goes on to mention a "system of militia

discipline" and declares, "How it is practicable to keep the people duly armed

without some organization, it is difficult to see." Story's context was the citizen

soldier. The discipline and organization are imposed from above by law. The

Page 19 of 34

militia was not self-constituted by individuals possessing a personal right.

Don Kates, one of the District Court's sources, has written (Kates, p. 265-6):

The personal right does not hold up even in the District Court's sources.

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II. THE DISTRICT COURT ERRED BY CONFUSING THE SECOND

AMENDMENT'S TRUE LEGACY, THE REPUBLICAN RIGHT TO BE

ARMED AS CITIZEN SOLDIERS, WITH A PERSONAL RIGHT TO

ARMS OUTSIDE OF THE RULE OF LAW.

The English tradition absorbed the Liberal political tradition begun by

Thomas Hobbes and Locke in the seventeenth century. (Halbrook has Hobbes and

Locke on opposite poles but they are in the same lineage.) All previous political

theory had been conservative: Individuals were born into political community with

obligations. In Christian Europe political authority and obligation were sanctioned

by scripture: St. Paul's injunction, "Obey the powers that be for they are of God." In

Page 20 of 34

the Liberal tradition individuals are born with rights in the State of Nature. They

institute government to secure rights. In Hobbes and Locke (and the Declaration of

Independence) political authority derives from the consent of the governed not from

divine sanction. The simple replacement of popular sovereignty and consent for

divine right and arbitrary power involved England for much of a century in civil war

and revolution. The eighteenth century British Constitution which came out of those

struggles was a balance among the classical forms of government, monarchy,

aristocracy and democracy, manifest in the estates of the realm, the Crown, the

nobility (Lords), and the people (Commons). The rulers (the Crown) and the ruled

(the people) were separate estates of the realm.

The American militia consciousness that produced the Second Amendment

had its roots in historical English practices and the republican ideologies that

emerged in the early modern period as the opposition ideologies to monarchy with

its magistrates and regular army. They emphasized the republican virtues of the

citizen soldier and the right of the citizen to participate in the military functions of

the state. The militia had some theoretical, but mostly rhetorical, significance under

the British Constitution. In The Creation of the American Republic (1969),

historian Gordon Wood describes the transformation from the concepts of the

British Constitution to the US Constitution, where, under representative self-

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government, the rulers and the ruled become one and the same. Instead of making a

contract with the rulers, the people divided their sovereignty between state

government and the federal government. The Anti-Federalists insisted on the

Second Amendment because they projected their understanding of political concepts

from the British Constitution onto the US Constitution. In Anti-Federalist

consciousness, the states were the people, the ruled, analogous to the people in

Parliament; and the rulers, analogous to the monarchy and its magistrates, were the

Federal Government. The state constitutions of the Revolutionary period had strong

legislatures and weak governors. The Anti-Federalists identified the state

legislatures and state militias with the sovereignty of the people. It was that

sovereignty that they wanted to protect. (Rowland, dissertation, p. 394-5) They

wanted to preserve the constitutional balance that was present in the British

Constitution. However, the concepts had changed. The Second Amendment was an

anachronism when ratified. The libertarian fantasy has tried to resurrect the British

Constitution's balance between the people and the rulers and insert it into the anti-

state (Appendix F), anti-government ideologies and political cynicism of the present.

The conscript militia institution in the United States died a natural death by

the 1830s. Colonial society was settled, deferential and hierarchical. After the

Revolution, American society expanded to fill a continent. It became more fluid and

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mobile. (Cooper, p. 14) Not only did the conscript militia no longer serve a

theoretical purpose but it became impractical to enforce and maintain. Also, the

regular army of the United States did not, and has not, become, as the regular army

had in seventeenth century England, a feared instrument of political intrigue.

The vessel of law and public authority by the nineteenth century became the

nation state. The United States, in its evolution into a modern state, for the first

time combined, in a national system, the citizen soldier of the conscript militia with

the professional soldier of the regular army in the Selective Service Act of 1917

which was challenged and held constitutional (Arver v. United States, 245 US 366

(1918); Goldman v. United States, 245 US 474 (1918), Ruthenberg v. United

States, 245 US 480 (1918)) (Friedman). Here is where we find the true legacy of

the Second Amendment. The theme of Russell Weigley's authoritative History of

the United States Army (1967) is the polarization from the beginning between

citizen soldiers and professional soldiers (p. 87):

In the twentieth century, we have described our armed forces as being composed of

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citizen soldiers and been proud of their condition and performance as such.

Just as the District Court and the literature it cites maintain a great confusion

between a natural right to revolution and a civil right secured by government they

also maintain a great confusion between the right of the people to participate as

citizen soldiers and a personal right to be armed prior to political community,

without prior restraint or any state purpose.

[TOP]
[BOTTOM]

III. THE DISTRICT COURT ERRED IN CONFUSING A RIGHT TO

SELF-DEFENSE UNDER LAW AND GOVERNMENT WITH A RIGHT TO

SELF-DEFENSE OUTSIDE OF THE RULE OF LAW.

Self-defense is a ubiquitous claim for the right-to-arms which the District

Court repeats. Self-defense is a right defined in law and protected by law, but it is

not an excuse to be armed outside of lawful authority. The self-defense security of

gun owners under law and government is to create legal categories of gun ownership

which gun owners as citizens, once they decide they are citizens, can effectively

apply against the lawless through legal means. There is no conflict in principle

between gun ownership for self-defense and prior restraint or accountability to

public authority. The self-defense sought in the personal right is self-defense in the

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State of Nature which is the state of anarchy. There is no individual self-defense in

the state of anarchy. Van den Haag again:

Our local warlord, "the strongest[,] carries it" (— Locke, § 1). Militia duty located

gun owners in the structure of a community, required training and imposed the duty

to guard against threats. It was a different concept in both theory and practice from

the personal right sought today. In eighteenth century consciousness, true liberty

was under law and opposed to both tyrannical rule and licentiousness (no law). (Rakove, p. 288-95).

[TOP]
[BOTTOM]

IV. THE DISTRICT COURT ERRED IN FRAMING THE ISSUES AS ONE

OF A CONFLICT BETWEEN A "COLLECTIVE" VERSUS

"INDIVIDUAL" RIGHT INTERPRETATION OF THE SECOND

AMENDMENT.

The District Court reaches past the overwhelming volume of cases finding

gun laws reasonable to US v. Miller, 307 US 174 (1939). The important phrase in

Miller which has been often repeated in subsequent cases is "reasonable relationship

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to the preservation or efficiency of a well-regulated militia." This phrase implies

that militia is a function of lawful authority wherever and however constituted.

This is clear from militia clauses of eighteenth and nineteenth century state

constitutions. (Thorpe). The District Court finds the "crucial question" of an

"individual or collective right" unanswered in Miller. The Eighth Circuit, however,

in US v. Hale, 978 F.2d 1016 (1982) held that:

The maintenance of a well-regulated militia is a state function. Any rights are rights

in relation to that state function.

Three categories of law can be identified but which the courts have not

differentiated in struggling with gun laws: 1. Military law which has no relevance

here; 2. Militia law which was both military and civil depending on the

circumstance but is now archaic and only relevant as history to clarify the issue;

and, 3. Civil law which involves the legitimate police functions to regulated firearms

outside of any military or militia context. The key word for militia law is "required"

(Dist. Ct. Op., p. 9). Requirement presupposes possession. It is in this possession

that the personal right is sought, but, rather than a civil right, possession was a form

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of tax— widely resisted— imposed by lawful authority. Militia law cannot be

resurrected as a protection for private individuals. The US Bankruptcy Court in

Brown (189 BR 653, Bkrtcy (1995)) indulged in a length discussion on the

difference between personal arms and military arms. The language of other courts is

clearly the language of civil regulation not militia law:

The District Court quotes Supreme Court Justice Clarence Thomas' obiter dictum in

Printz that

But, even this imagined personal right does not mean a right outside of any and all

governmental authority only outside of the reach of Federal authority; likewise, in

similarly confused words from Justice Scalia: "Of course, properly understood, it is

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no limitation upon arms control by the states." ( Scalia, p. 137n) The personal right

does not seem to be eligible for Fourteenth Amendment protection against the states.

[TOP]
[BOTTOM]

V. POLITICAL CYNICISM

The present polarization and impasse over firearms policy can be found in

two extensively documented papers: Andrew Herz' "Gun Crazy" (1995) and Barnett

and Kates' "Under Fire" (1996). Herz' conventional arguments provoked

acrimonious condemnation from individual right advocates Barnett and Kates, but

Barnett and Kates arrive at this conclusion (p. 1259):

What Barnett and Kates concede may "reasonably be argued" are essential

ingredients of firearms policy. There appears to be much common ground among

Barnett and Kates, many of the legal scholars they and the District Court cite, the

gun control organizations and even the gun manufacturers. The President of Colt

Manufacturing proposed a national permitting system in 1997 (Appendix J). Out of

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this common ground could be distilled a reasonable and effective gun control policy

to address the current crisis in gun violence which the great majority of the people

could support and which would be consistent with sovereign public authority,

historical practice, the contours of citizenship under law and government and the

legitimate, as opposed to the anarchic or insurrectionist, interests of gun owners.

The impasse is the political cynicism found in Barnett and Kates. While

dismissing the insurrectionist accusations against Second Amendment rights as

"malicious straw man" (p. 1232), they take alarm at what they identify as the

confiscationist designs of the gun controllers. The personal right fabricated in the

volume of literature is a right secured against confiscation/prohibition. It is a right

that only has meaning in present gun control politics. They don't trust political

processes, want one foot planted in the State of Nature, and want it secured there by

the courts. The Second Amendment, however, is not relevant to the claim.

If the choice is between confiscation (tyranny) and a personal right (anarchy)

the case for the personal right does not hold up. Maintaining public order is a state

prerogative and confiscation in times of civil unrest or criminal activity is a

legitimate state action. However, a right to maintain a balance of power between an

armed populace and any and all government or a right to insurrection, to threaten or

fantasize insurrection has no purpose that a state can protect. Even the District

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Court provides a quote from the eighteenth century that the right-to-arms does not

extend to those who have been or are in "actual rebellion" (p. 16).

The antidote to political cynicism is public enlightenment. The great concern

of the gun lobby and libertarians is coercive government. The way we minimize

coercive government is to use free institution to get out all the relevant information,

conduct rational, informed public debate, arrive at and build public support around a

consensus, and let policy follow.

Firearms policy more than any other will be arrived at in the public consciousness

through this process. The completely necessary debate has not taken place. There

is no serious public enlightenment now and no political leadership on the substantive

political issues involved. Warin, the most important Second Amendment case since

Miller and before Emerson, has never been mentioned in the Washington Post.

Emerson, which involves the fundamental relationship between citizen and state,

was mentioned only once (AP report, 4/4/99, p. A 10, but not in all editions). (more

Washington Post in Appendix I) We hear much about trigger locks and there is

much effort and expense to collect public health statistics. There is no context that

includes the consent of the governed and the "just powers" of government.

If there are ambiguities in the record and in the concepts, it is necessary to

clarify the ambiguities now and decide what we want to live in today. During the

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nineteenth century, the states wrote and rewrote their constitutions every few

decades. (Thorpe) The bills of rights of those constitutions are very instructive.

Most start with an article that the people have a right to "alter or abolish" their

government. The language is from the Declaration of Independence, a charter for

revolution. These rights documents then go on to define the right of militia as

authorized by law, the right to peaceable assemble, and define treason as the

waging of war against the state. It was not explained how the people were

supposed to exercise the right to revolution when their most important instruments

were denied them.

[TOP]
[BOTTOM]

VI. CONCLUSION: SECURING NEW RIGHTS

There will not be any results in firearms policy until there is public

knowledge, understanding and conviction. It is not the business of the courts to

conduct public debate or a national civics lesson on the contours of citizenship.

Until the confusion is cleared up in the public consciousness and the purposes of

gun ownership and regulation are defined in policy, the courts do not need to be

inventing new civil liberties to compensate for the failure in other places to debate

issues on their proper terms, reconcile differences, and enact and make work

Page 31 of 34

reasonable policies which are consistent with history, a viable legal political order,

and what most players seem to be willing to accept. ACCORDINGLY, THE

JUDGMENT OF THE DISTRICT COURT SHOULD BE REVERSED.

Respectfully submitted,

__________________________________

Attorney for the Potowmack Institute, amicus curiae

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Certificate of Service

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Certificate of Compliance

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