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"Wrestling with gun rights: Chicago's handgun ban, before U.S. Supreme Court, should be voided".
http://www.philly.com/inquirer/opinion/20100523_Wrestling_with_gun_rights.html#ixzz0qXs2 AhXT

August 25, 2010

Dear Prof. Malcolm:

In April, 1995, you told a congressional committee:

The late Lawrence Cress (1947-2001)
http://www.potowmack.org/lcress.html
was probably the most prolific militia historian. You give Cress only one sentence in To Keep and Bear Arms:

You do not mention or cite the only other two PhD historians of the Second Amendment prior to 1994, John K. Mahon (1912-2003)
http://www.potowmack.org/mahonch3.html
and John Kenneth Rowland (PhD, Ohio State, 1978, Col. USAF, retired)
http://www.potowmack.org/1197row.html

The Eighth Circuit came closer to the truth in US v Hale (1992):

Meanwhile, you have and have always had many severe critics among professional historians.
http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521-bsac-englishearly-americ an.pdf

So now we come to the present case. The Supreme Court has decided on Fourteenth Amendment incorporation. Much of the historical reasoning to justify their ruling is apparently taken from Joyce Lee Malcolm to the exclusion of other objective reasoning and fact which has been abundantly supplied to the courts. The Heller/McDonald opinions, for which you can take your credit, are anarchic and reckless. They do not stand up to historical analysis, logic or good sense. See below.
http://www.huffingtonpost.com/adam-winkler/justice-scalias-living-co_b_109728.html
The only previous case to conclude Fourteenth Amendment incorporation was the Ninth Circuit's revisit of Nordyke,
http://www.potowmack.org/nordyke.html
The Supreme Court without specific mention has validated that anarchic ruling. We go without public outrage from an individual right to an anarchic "amorphous body of the [armed] people as a whole." Any civilized person, including yourself, has to have convictions on fundamental concepts. When the courts are this reckless and irresponsible, something else is at work. Read on.

Regardless of what else is at work, the courts have rendered the collective right versus individual right interpretation meaningless as a matter of policy making. After many pages of ignorant and fallacious argument to invent an individual right to be armed for personal self-defense and to disparage and subordinate the civic purpose manifest in the collective right, Judge Silberman in Parker arrived at the conclusion that we can have "registration ... for militia service if called up."
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf , p. 54
That is the civic purpose or collective right. It trumps all other purposes. Militia duty was conscript duty. Gun owners and their privately owned weapons were subject to call up— an exercise of public power— for public purposes. Call up was not just a coerced civic obligation. It imposed accountability to a governing authority. Accountability is what this issue is all about. Judge Silberman's conclusions have opened the path for policy making. Nothing in the Heller/McDonald opinions contradicts his conclusions. Cress' "idiosyncratic" view prevails. The courts have nothing more to decide.

So where does this lead? All that is left is the policy making. That is where you can make a constructive contribution. What is at stake is serious and very far removed from public knowledge. I have proposed without effect that congressional committees conduct hearings and produce a study directed toward policy making. Knowledge and leadership in Congress on the most vital and fundamental issues, values and concepts of political life are as abysmal as at the Supreme Court. A more likely but still at this point remote possibility for public enlightenment is to try to induce the Eric Holder DOJ to update Ashcroft's 2004 gun lobby propaganda piece,
http://www.justice.gov/olc/secondamendment2.pdf,
in the context of Ashcroft's own "reasonable restrictions" and the decisions of the courts— again, with the purpose of providing direction for national policy.

The only role of the Federal Government in gun ownership is a national policy that controls the illegal traffic between and among jurisdictions. It is empowerment policy for local communities. That epowerment can only be accomplished by registration of ownership and reporting of private sales.
http://csgv.blogspot.com/2009/05/its-about-citizenship.html
http://www.potowmack.org/nfp.html
http://www.potowmack.org/abcnews.html
Everything is in place for national policy except public knowledge and political leadership. The courts have imposed no barrier to credible, effective national policy, and as long as the courts adhere to original design and intent there can be no barrier. The Holder DOJ is weak on leadership. There needs to be public pressure. You have much to contribute. You can join the effort, help bring in others, and find an opportunity to clarify your thinking and reasoning and especially your purposes and to make a constructive contribution to the life of the republic. There is a burden of historic responsibility. The crisis is no longer simply domestic. It is international.

Instead of your lame, conventional gun lobby arguments, which when made by the gun lobby are self-serving, a constructive, historically credible contribution--from a historian, mind you-- might start with resurrecting the original militia concept if only as an intellectual exercise. Instead of a civil right protected by the courts to possess a handgun for his personal self-defense, what if the political authorities were to order Otis McDonald at age 76 to provide his own weapon, have it placed on the militia inventory, place him under command of militia officers, order him to undergo training and discipline, and order him to patrol his neighborhood to maintain the public peace and to seek out and remove illegal gun possession. What would be your objections? How much support do think such a policy would receive from the NRA, Gun Owners of America, the Second Amendment Foundations and their minions in Congress? With a governing authority removed, the gun rights militants have an alternative proposal. It is that vigilante policing strait from the Marxist-Leninist playbook,
http://www.potowmack.org/parkarg.pdf, p. 19,
and the NRA's "armed citizen guerrillas" will maintain the public peace and secure our liberties. Is this what you want?

But, then how much support would the original militia concept receive from the gun controller? The gun controllers have not been able to get much beyond promoting trigger locks and suing the gun manufacturers. The DC government, the city of Chicago, Mayor Bloomberg and his 500 mayors, among others, are their own worse enemies. What they have created is the false polarization of a progun/antigun culture war. It is not as if they have not been well-informed. Without a policy agenda derived from fundamental concepts and the political leadership to advance those concepts, their efforts are counter-productive. They enter the arena of demagoguery where the gun rights militants are the masters. Their greatest success (or, failure) has been that they have brought the courts into the false polarization.

The DC government had no business taking the Parker case to the Supreme Court. Enough people told them that. It had everything it needed to launch a campaign for a national policy in the Parker conclusions. The burden can now fall on the Holder DOJ. I can envision fora in a DOJ study broadcast on C-Span where serious questions are asked and serious answers demanded.

Among the serious questions is, What do the gun rights militants want? To allow an abridgement of a fundamental right the courts demand that a law be narrowly tailored and serve a compelling state interest. A fundamental right at the same time in order to be worthy of protection by the courts must serve another compelling interest— a compelling liberty interest. The liberty interest of private self-defense now claimed and protected has a strong demagogic appeal but it is a misplaced interest. What is so difficult to understand about this? The way we defend ourselves as citizens under law and government is to apply legal standards for gun ownership against the lawless. If all citizens are armed for self-defense and there are no laws that apply against the lawless, the armed predators will simply ambush their victims.
http://www.potowmack.org/parkarg.pdf p. 8.
We cannot assume they are timid or stupid. At the same time, as the courts have now concluded, there is no conflict in principle between a right to armed self-defense and accountability to a governing authority. They are part and parcel of the same policy goal.

The only reason there is a claim for a right to be privately armed for armed self-defense is because the gun rights militants, led by the NRA, work very hard and very successfully to defeat any legislation that would apply against the lawless because the same legislation would also apply against the NRA's "armed citizen guerrillas"
http://www.potowmack.org/emerappd.html#ak47
http://www.potowmack.org/parkappe.pdf, p. 42
and others with insurrectionist fantasies.
Have you missed something? The right of armed self-defense includes a right of armed self- defense against the same government the gun rights claimants want to secure the right. There is no secret here. You can find the insurrectionist fantasies on a thousand websites and internet message boards and in a few briefs unabashedly filed with the courts. For starters search for "Second Amendment reset button constitution". The insurrectionist fantasies are childish political fantasies in which is manifest a childish concept of the political self and a malignant vision of economic, social and political life. The insurrectionist fantasies, nevertheless, have become mainstream,
http://www.nytimes.com/2010/06/19/opinion/19sat3.html?scp=35&sq=gun&st=nyt
http://www.potowmack.org/parkappe.pdf , p. A46.
A DOJ study must clarify something important: We, the people, do have a right of armed resistance to a governing authority. It is a right in the State of Nature outside of civil society. It is not a civil right that can possibly be secured by government. The Declaration of Independence was a charter for revolution. It asserted a natural right. It was treason against the Crown. The Constitution is a frame of government. It secures civil rights. It defines treason as the waging of war— bearing of arms— against the United States. For the courts to validate a civil right for private self-defense, they validate, however tangentially, the anarchic, treasonous doctrine. A right of treason becomes the compelling liberty interest. The Constitution becomes perverted. The Anglo-American legal tradition become perverted.
Regardless of all the verbiage and ink you, the courts and others have devoted to the Anglo-American legal tradition, the insurrectionist fantasies do not have their roots in Anglo-American fundamental law. The roots are in the rebellions traditions of Scotland and Ireland which are not only not a part of the Anglo-American constitutional tradition but have been constantly at war with it to this very day,
http://www.potowmack.org/parkarg.pdf, p. 27.
It is most reprehensible that the courts say nothing about the anarchic absurdity they are pandering to. Nevertheless, the courts, regardless of all their political pandering, have opened the path for policy. The rest of us do not have to be silent. We can get started with the DOJ study I have proposed directed toward policy making.

The path to policy is where we define who we are. Do you not understand this issue? There is a doctrine of political liberty set forth. Stephen Halbrook in That Every Man Be Armed (the very title is a misuse of words) characterizes the doctrine as "radical libertarianism", p. 197. The insurrectionist fantasies are built on the libertarian right to individual sovereignty, the right to maintain the "armed populace at large",
http://www.potowmack.org/nraperp.html,
and the Ninth Circuit's "amorphous body of the [armed] people as a whole",
http://www.potowmack.org/nordyke.html.
But, do they consent to be governed, give just powers to government? The right to individual sovereignty— that "most ancient of rights"— is in the State of Nature before there is law and government, a right to be armed outside of the knowledge and reach of a governing authority. That is the essence of the libertarian fantasy that has become our new political belief system. The fantasy is that it is a viable concept. Public necessity and civic obligation are missing. Vigilantism becomes the new norm. The Constitution is reduced from a frame of government to a treaty among sovereign individuals. The Founders understood from John Locke that there is a difference between civil society and the State of Nature.
http://www.potowmack.org/2ndtreat.html#94
http://www.potowmack.org/2ndtreat.html#88
http://www.potowmack.org/emerarg.html#fp33
Do you have convictions here? Will you explain the difference between yourself and a "patron of anarchy"?

Others which the gun rights ideologies have embraced have qualified themselves without providing any credible direction toward policy:
Sanford Levinson
http://www.huffingtonpost.com/sanford-levinson/dc-v-heller-a-dismaying-p_b_109472.html
Akhil Amar
http://www.law.duke.edu/shell/cite.pl?65+Law+&+Contemp.+Probs.+103+%28Spring+2002%2 9
Laurence Tribe
Tribe, Laurence H. & Akhil Reed Amar. "Well-Regulated Militias, and More," The New York Times, October 28, 1999, at A25.
Tribe, Laurence H. "Whose 'Right to Bear Arms' Is It?" The New York Times, June 13, 1999, Sec. 4, at 16.
Now is your time for constructive political qualification. Will you define yourself against the opposition to a viable concept of constitutional government?

There is an opposition. The NRA worked very hard to control and sabotage the Parker case.
http://www.washingtontimes.com/news/2003/jul/22/20030722-093717-6859r/
http://www.cato.org/pub_display.php?pub_id=3175
The NRA does not want gun rights cases in court. It cannot control federal judges with demagoguery. Registration, accountability to a governing authority, is the one point of policy the "armed populace at large" doctrine with its insurrectionist fantasies cannot accommodate. That is what the NRA works hardest to prevent.
http://www.potowmack.org/parkappd.pdf
But, accountability and civic purpose are what the courts have decided. Accountability creates the basis for the powers of enforcement for the "reasonable restrictions" Ashcroft and the courts say are permissible. Can we have that?
http://www.huffingtonpost.com/adam-winkler/justice-scalias-living-co_b_109728.html
The gun rights militants led by the NRA will fight viciously to defeat any legislative attempt to implement the conclusions of the courts. If nominees Sotomayor and Kagan had had any political savvy, they would have turned the Second Amendment questions around on the senators and asked, Do you accept and support the conclusions of the Parker court? Any member of Congress who endorses the civic purpose, "registration ... for militia service if called up," will be viciously opposed and attacked. A few questions change everything in the present politics and lead directly to policy making.

Policy making has to include examining the court's reasoning. For starters, just because some thing or activity is commonplace and traditional does not mean it is eligible for constitutional protection.
http://www.huffingtonpost.com/adam-winkler/justice-scalias-living-co_b_109728.html
Prostitution is commonplace and has an ancient tradition. Moonshining has an ancient tradition, is commonplace and in some quarters is quite respectable and honorable. One of my grandfathers went to jail in the 1920s for his activity in the illegal whiskey trade. The other grandfather did not go to jail but should have.

Next, the Supreme Court's reasoning to protect handguns for home defense is reckless. The weapon of choice for home defense recommended even by the NRA is a small bore shotgun. The gun manufacturers could design a light weight, easily handled, child proof long gun for home defense. The gun rights crowd would proclaim that someone could make it concealable in a few minutes with a hacksaw. That would be good for 10 years and $10,000 in federal law and there are effective powers of enforcement.
Cap and ball six shooters became available in the 1820s. These were the first reasonably accurate and reliable concealable, portable weapons. Concealable and concealed weapons became immediately recognized as a menace and legislatures acted to control them and their use. The constitutional protection becomes reckless when a concealable, legally owned handgun in the living room for home defense can become in an instant a illegal concealed weapon on the street with only the weakest powers of enforcement.
The problems with handguns multiply. The objective of policy has to be to apply the law against the lawless. If an effective firearms policy which the courts have opened the path for to disarm the lawless of handguns were implemented, the constitutionally protected, legally owned concealable handgun in the home would become a high value object for theft. Of course, if the law were applied against the lawless, people in their homes would find less need to have guns for their armed self-defense anyway.
The gun rights militants cannot win the right they want in court. They must defeat powers of enforcement. They have to protest that criminals will always have guns— but, how easily and at what cost? Organized crime miscreants have silencers, sawed off shotguns, and machine guns contrary to federal law. They use them mostly against each other and keep them under strict internal control. They are rarely seen in public. Can we do the same with handguns?
Handguns do have a purpose. If you know you will be in a gunfight, you take a 12 ga. slide action shotgun loaded with 00 buckshot. If you don't know you will be in a gun fight but need to be prepared for the possibility, you carry a lightweight, portable handgun. The only people who need small, portable weapons are police, criminals and maybe some authorized security personnel. In any circumstance there can be strict accountability.

If you will defend this reckless reasoning, there becomes a question of purpose. We can start with Halbrook. Halbrook is a thorough going intellectual charlatan.
http://www.potowmack.org/emerappi.html#abus46
(the passages cited were probably written by Halbrook)
See That Every Man Be Armed, pp. 67-68
http://www.potowmack.org/emerappi.html#abus29
http://www.potowmack.org/196locke.html
There are 1306 footnotes to 198 pages in That Every Man be Armed. That is not unusual for serious scholarship. It is requisite for pseudoscholarship.

If you will critique Halbrook's historical inventions you also need to critique his political theory. Start with "self-sovereignty", p. 61, then proceed to his false polarization between libertarian republicans (including Locke) vs. authoritarian absolutists (including Hobbes) regardless that Hobbes and Locke are in the same Liberal Tradition of evolving secular sovereignty. And, his constitutional doctrine. Start with no "previous restraint", p. 69. Prior restraint is an issue only with First Amendment rights— and, not with all of them. Most importantly, you must examine his purposes which mean you must examine your own.

Then, a much larger discussion begins. In history there are times when a public mood for good or ill, rational or not, transforms public consciousness. There develops a will to believe. It spans the political, social and cultural spectrum. It happened with Christianity in the late Roman Empire, Protestantism in the early modern period, and the Enlightenment among educated elites in the 18th century. In reaction to Enlightenment rationality and classical formalism, there was Romanticism and an awakening of emotional religion with Methodism in England, Pietism in German, and Hassidimism in Judaism. Fascism in interwar Europe was a more recent phenomenon.

Now in our context, it is the libertarian fantasy, as I have called it, that we can levitate ourselves out of political existence, out of civic obligation, and liberate ourselves from the "just powers" of government. Stephen Newman captured it in his subtitle to Liberalism at Wits' End: The Libertarian Revolt Against the Modern State (1984). (His book is getting old but it is still a good primer on the subject. No one has ever read it.) The libertarian fantasy manifests against modernity and political complexity a demoralized public mood and a defeatist retreat from political life. As with other transformations of the public mood, it spans the political, social, cultural and intellectual spectrum. It has its roots in the New Left as much as in what I call the Libertarian Right which has never accepted the transformations of the United States in the twentieth century to create the modern state.
http://www.potowmack.org/196rehm.html#5trans
We don't need to look far. The late Milton Friedman, the foremost and most prestigious our Libertarian Deliverers, ended his program "Free to Choose" 30 years ago sitting on a park bench in small town, rural Iowa describing how the idyllic world around him is what we could all live in if we would just liberated ourselves from the oppression and corruption of government. Friedman, a born and bred urbanite, was free to choose but never chose to live in small town America. We don't know how welcome or comfortable he would have been there. More importantly, Iowa is probably the whitest state. The victims are largely absent. More than that, its economy is sustained by the very federal crop supports Friedman's economic theories would dismantle. When the will to believe becomes detached from reality, it become delusional. Is it any less delusional when we imagine that we can levitate ourselves out of political existence by clutching the gun untouched by laws?
Again, we don't need to look far. I was at the public comment sessions for Maryland's rather restrictive gun regulation bill in 1996. The NRA notifies gun owners to show up and make their statements. They lined up by the hundreds to tell how oppressed they will be if their guns were touched by laws. One could sense in the grim, worried looks the dark ominous cloud of the New World Order coming over the horizon.

The defense against the New World Order is an expanded version of the revolt against the centralized modern state.
http://www.potowmack.org/996mdass.html#patrob
There is a policy agenda that exploits the demoralized public mood. The libertarian fantasy serves the purposes of Libertarian Right which has never accepted the twentieth century transformations.
http://www.potowmack.org/196rehm.html#5trans
http://www.thenation.com/article/rolling-back-20th-century

We can argue the contours of the modern state on the merits case by case. We cannot throw out the constitutional state baby with the modern state bath water. Sovereignty is absolute. The rule of law, the state's monopoly on violence, and the state's internal sovereignty all mean the same thing. The gun rights militants, meanwhile, identify Max Weber with National Socialism. The Second Amendment supposedly makes us different. If you are to be credible, you have to have a conviction on this?

The courts have decided "registration ... for militia service if called up". But, reprehensibly without elaboration. That elaboration with a constructive purpose can take place in the DOJ study I have proposed. The constructive purpose is in opposition to the will to believe that leads you, Judge Silberman, Scalia, Roberts to "tease out" (Silberman's term) of the historical record a civil right which by the standards of the gun rights militants is, as decided, perfectly meaningless. With our "objective" Libertarian Deliverers the will to believe is pure. We can levitate ourselves out of political existence by clutching the gun untouched by laws. The judges may truly believe, but they, nevertheless, are still under oath of public office. They may be politically appointed and highly politically motivated to pander to a malignant constituency that the Libertarian Right taps into and cultivates to further the much broader political agenda, but they take the gun rights militants only half the way there which is not there at all and create a constitutional mess. There are millions of dollars and a thousand litigants poised to overburden the courts with pointless gun rights cases. The courts, meanwhile, have opened the path for national policy consistent with the original concept. Absolutely no one in the founding generation objected to the inventory requirement of the Militia Act of 1792. The courts wittingly or not have affirmed the original civic purpose of military preparedness. The Constitution is still a frame of government not a treaty among sovereign individuals,
http://www.potowmack.org/emerarg.html#fp33.

If you will enter the fray, you have more to explain. Without a governing authority built on a civic culture of public trust we become at war with each other. These are the kinds of comments in the thousands that respond to the news stories:
http://www.kansascity.com/273/story/1704820.html
http://www.theolympian.com/opinion/story/1110708.html

Is this the company you keep? The courts validate a civil war between the real Americans and the social parasites and secure a right to all for their self-defense against each other as individuals or as groups. Are they not all equally obligated for militia call up? Can we call up these guys?
http://www.nytimes.com/2010/08/01/magazine/01Appleseed-t.html?partner=rssnyt&emc=rss
There is no end to the absurdities. One C-Span caller last December said he did not fly on airplanes because the airlines would not allow him his right to carry his gun for self-defense against the terrorists. If he has an unrestricted right of armed self-defense against the terrorists protected by the courts, then the terrorists have an unrestricted right of armed self-defense against him.
Airplanes, for sure, are the sensitive places the courts have alluded to. What about the Supreme Court's own chambers? How about schools, barrooms, etc? How about the territorial jurisdiction of the United States as a sensitive place. The gun rights militants proclaim that sensitive places only create victim zones. That is true as long as there is no national policy. The courts have opened the path for national policy. Nothing else will achieve results. Otherwise, we secure our own rights in the State of Nature. That is why we need a gun in every pocket. We become at war with each other. Hobbes was right after all except that we do not get anarchy. Anarchy is impossible. We get polyarchy,
http://www.potowmack.org/emerarg.html#polyarch.

My sense is that a substantial element in the lower courts are in revolt against the many absurdities of a fundamental right to be privately armed for private purposes. The lower courts will produce convoluted rulings which the Supreme Court will need to sort out with more convoluted rulings.
http://www.huffingtonpost.com/adam-winkler/justice-scalias-living-co_b_109728.html
The only purpose served is the same political cynicism that the libertarian fantasy thrives on.

We will get convoluted rulings because the right sought is a logical and constitutional absurdity. What is so difficult to understand about this? Whatever rights are secured in a constitution have to be consistent with what a constitution is. The Constitution defines itself and the law as supreme and creates a sovereign authority. A sovereign gives and enforces law. A sovereign does not consent to be governed and accommodate to a lawgiving authority. A sovereign makes a treaty not a government.
http://www.potowmack.org/emerarg.html#fp33
There can be no right to individual sovereignty in a viable concept of constitutional government. If there is no consent of the governed there are no "just powers" of government to secure a right or do much of anything else. See Declaration of Independence. The armed people, Halbrook's "libertarian republicans",
http://www.potowmack.org/emerarg.html#halbrook,
consent to be governed, sort of, but keep their private weaponry outside of the knowledge and reach of a governing authority in case things do not go the way they expect and want. There is no historical record that militiamen, muskets in hand, went to the ratifying conventions, voted for ratification, then left, muskets in hand, withheld from the hand of government, in case things did not go right in the new scheme. The political cynicism does not get more explicit, but Halbrook, the NRA, and the gun rights militants did not get what they want.

A decent respect for the past commands a decent respect for the present. We live in the present. The gun vote and gun rights ideologies are not about guns. They are about controlling political outcomes in the much larger struggle over the modern state and the twentieth century social contract. There were at least five transformations of the United States of constitutional proportion in the twentieth century that made the United States into a modern nation state capable of performing on the world stage as a great power, managing an industrial economy, and securing liberty and justice for all,
http://www.potowmack.org/196rehm.html#5trans,
The political cynicism of our Libertarian Delivers has produced a large and growing literature that portrays the twentieth century as a big mistake. Tune in to Glenn Beck's program sometime. It is no coincident that Robert Levy who pursued the Parker case all the way to the Supreme Court came out with a book on the twelve Supreme Court rulings he does not like.
See Ronald Pestritto's work on Progressivism
Jonah Goldberg's Liberal Fascism
Burton Folsom's New Deal or Raw Deal
Thomas DiLorenzo's work on Lincoln
Anderson's "The New Deal and the Courts,"
http://www.lewrockwell.com/anderson/anderson123.html
The Second Amendment gets its due mention. This is all part of the same story. There is much more. Anytime we tune into broadcast call-in programs we can hear about the dreaded socialism. The most common word among the gun rights militants to describe gun regulations is "socialist". The second most common is "statist". The modern state is the socialism. Government is now socialism. Law is statist. Ronald Reagan was never required to explain himself.
http://www.potowmack.org/indexIV.html#reag

It is most ironic that the same Libertarian Right which has never accepted the expansion of federal authority to do anything else, will now promote the expansion of federal authority to protect gun rights with 14th Amendment incorporation.

Kim Phillips-Fein wrote in "Right On".
http://live.thenation.com/doc/20090928/phillips-fein

The policy transformations that created the modern state changed public consciousness about nationhood by creating a national governing authority to address national issues and interests. The most unifying in the mid- twentieth century was national conscription;
And:
Well, sort of. We need much more examination of this in public discourse. Everywhere we go on the political landscape we find enormous contradictions and conflicts.

The Libertarian Right has forged ahead. The stealth agenda for 30 years has been to appoint judges to the federal judicial who will dismantle substantially or in good part the modern state. The culmination is in the present five member majority on the Supreme Court and a disturbing number of anarchic lower court judges.
http://www.potowmack.org/nordyke.html
The agenda has produced other perverse rulings in Heller and the recent Citizens United v. FEC ruling. The Citizens United ruling produced much comment and appeal that the judiciary has become politicized, that this is judicial activism and we need a grass roots opposition. I said the same things when the Emerson ruling came out of the 5th Circuit in 2001. It did not and has not happened and what is at work is all still very far removed from public consciousness. We can hope that a DOJ study might start some thought processes. The cynical vision of economic, social and political life and how it is expressed in other areas of constitutional doctrine is another important, relevant subject for inquiry.

Thought processes might discover real history and how it is distorted to serve the present agenda. Among the founding generation, the perceived tyrannies of the Stuart monarchies and Cromwell and of the British Empire over the colonies, were identified with the potential tyranny of the US Constitution which many viewed as resembling too much the British system recently removed. Today the tyranny is the twentieth century social contract and expansion of federal authority under the Commerce Clause. The 17th and 18th century political controversies have been resurrected and falsely applied to serve present libertarian ideologies. See the Texas Justice Foundation's amicus to the Supreme Court in Lopez,
http://www.potowmack.org/lopztjf.html.,
The TJF goes on at great length about the "infamous" Darby (1941) ruling without ever stating what Darby did which was uphold the Fair Labor Standards Act of 1938 establishing the 40 hour work week as national law. Did anyone ever hear about the New Deal Constitutional Revolution outside of a constitutional law course? We go back to the golden age of political liberty working 70 per week in coal mines, sweat shops, and company towns paid in company script redeemable only at the company store. The TJF does not want everyone working 70 hours per week in horrid conditions anymore than Judge Alito in his Rybar dissent wants a concealed submachine gun in every pocket. The political cynicism of our Libertarian Delivers objects on sweeping ideological grounds to the tyranny of a national governing authority. To serve the present political cynicism of the Libertarian Right, the Constitution becomes a whimsical notion with serious and unpredictable consequences.

The authority for "registration ... for militia service if called up", meanwhile, is not the Libertarian Right's abominable Commerce Clause, usually invoked for gun regulations, but the militia clauses and the Second Amendment. Someone should tell Alito. See the Militia Act of 1792. We need a DOJ study to convey a message about civic obligation.

Civic obligation comes from somewhere. "The people" and popular sovereignty were part of an evolving political insurgency against absolute monarchy and dynastic empires. When the Dutch freed themselves from the Spanish Hapsburgs in 1572, Amsterdam had no cathedrals, no monasteries, no universities (an institution of the Medieval church). It had commerce, stock markets, banks and insurance companies. "The people" with an emerging republican consciousness resurrected the Roman concept of res publica— that is, commonwealth and public power.
http://www.potowmack.org/emerarg.html#tawn
They had civic obligation, political participation and a capacity for self- government— Or, at least, those are what would emerge and be expressed in fits and starts over the next several centuries.

In the eighteenth century, "the people" as a political entity was a new Enlightenment concept not fully defined— not then or now. The people in the British Constitution were an estate of the realm. The people were not an anarchic collection of atomized sovereign individualists with individual rights. The people's militia maintained a constitutional balance against the Crown's mercenary army. All of the men who made the American Revolution and framed and ratified the US Constitution had grown up as British subjects. They made revolution to save the British Constitution from imperial corruption but ended up transforming the concepts. Hamilton in FP 84 described a bill of rights as a contract between the rulers and the ruled. One theme of Gordon Wood's The Creation of the American Republic is that in the US Constitution the rulers and the ruled became one and the same. By Hamilton's reasoning a bill of rights was unnecessary to a republican scheme of government. He lost the argument. The conscript militia died out in the early republic because no one wanted it and because, unlike in the British Constitution, it served no theoretical purpose. The great apprehension of the founding generation that a mercenary US Army at the disposal of the Federal Government would become a feared instrument of political intrigue did not materialize. It is not clear if all of the founding generation, John Adams prominent among them, fully understood what they had created. Even Joseph Story's understanding decades later is suspect.
In the emerging political concept, the larger meaning of the Second Amendment was the republican right of the people, the right of militia, to participate as conscript citizen soldiers in the military functions of the state 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 modeled after the British Army (Weigley, p. 83).
http://www.potowmack.org/emerarg.html#weig The right of militia in the present context is completely perverted to be a right to individual sovereignty— a right to maintain the "armed populace at large".
The British Constitution's constitutional balance was an anachronism and had no relevance. Madison's "the advantage of being armed", in FP 46, on which the gun rights ideologues have largely built a whole preposterous doctrine of political liberty, was campaign rhetoric to encourage ratification of the Constitution and had little future relevance. The words, nevertheless, do not support the individual right meaning now claimed.
http://www.potowmack.org/silveira.html#noe41
Republicanism was understood to be local. Empire was extensive and suspect. The original antagonistic relationship between the conscript state militias with their civic obligation and the mercenary US Army was combined in the twentieth century selective service acts. The 14th Amendment made the difference. See Yassky, Mich. L. Rev., Dec2000. The United States became a national republic and the US Army, in a sense, became a national militia. There is no public necessity at present for conscript state militias (there never really was) or conscript national forces. If there were, the legislatures would act as they have in the past and the whole issue would be blown away.

Any change has to begin with public knowledge and enlightened substantive public discourse. That could be begin with the DOJ study I have proposed but we cannot be optimistic when it comes to political leadership. There needs to be public pressure. If you are committed to truth seeking, rational inquiry and have a commitment to a constructive policy purpose this is something you can take an interest in promoting and encourage others to join.

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