The Potowmack Institute
August 25, 2010
Dear Prof. Malcolm:
In April, 1995, you told a congressional committee:
The late Lawrence Cress (1947-2001)
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)
and John Kenneth Rowland (PhD, Ohio State, 1978, Col. USAF, retired)
The Eighth Circuit came closer to the truth in US v Hale (1992):
Meanwhile, you have and have always had many severe critics among
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.
The only previous case to conclude Fourteenth Amendment incorporation was the Ninth Circuit's revisit of Nordyke,
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
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,
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.
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 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",
and the Ninth Circuit's "amorphous body of the [armed] people as a whole",
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.
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:
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.
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.
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?
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.
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.
If you will defend this reckless reasoning, there becomes a question of
purpose. We can start with Halbrook. Halbrook is a thorough going
(the passages cited were probably written by Halbrook)
See That Every Man Be Armed, pp. 67-68
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.
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
The defense against the New World Order is an expanded version of the
revolt against the centralized modern state.
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.
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
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:
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.
The only purpose served is the same political cynicism that the libertarian fantasy thrives on.
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
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,"
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.
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".
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.
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,
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.
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.
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.
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.
The Potowmack Institute