The Potowmack Institute
Defense in Emerson
appears to have backed off of the Second Amendment defense. The court may be able to
sidestep a Second Amendment ruling. Emerson will, nevertheless, bring out what
we can hope are the best best efforts of armed populace true believers. There is
supposed to be some kind of great debate in progress on gun owership and gun violence,
but the Potowmack Institute cannot find it. So far Emerson has received no
mention in the news media or among politicians. In this brief, Jews for the Preservation
of Firearms Ownership, Women Against Gun Control, and the Southern States Police
Benevolent Association actually address some of the points in the Potowmack
Institute's brief. The attention is welcome. This brief illustrates that the
armed populace fantasy is not the narrow agenda of the National Rifle Association
but has broad adherence in the society. It is about time we started getting to
some fundamental concepts. The Potowmack Institute will provide its comments.
Statement of Amicus Curiae In Support of
U.S. v. Emerson, 99-10331
1. WOMEN AGAINST GUN CONTROL: (WAGC) Formed in
1994 by six housewives and mothers in Utah to promote
firearms responsibility and advance the cause of
Second Amendment rights. They have since grown to over
3000 members nation wide. They are very active on the
inter-net and lobby extensively for real "feminine
protection", the hand gun. They especially stress the
importance of firearm safety. They have a sincere
interest in the outcome of this case from both sides
of the issues. Domestic violence and the personal
protection provided by the Second Amendment Rights.
Their motto is, "When women are disarmed" rapists,
Stalkers and domestic abusers will never hear, STOP or
The JPFP-WAGC-SSPBA brief starts right here with the political
cynicism that rules and regulations for gun ownership will disarm
women rather than the "rapists, stalkers, and domestic
abusers." The objective of policy has to be to create
legal categories of gun owners that can be applied to the
violent and potentially violent and can be effectively
enforced. There is no conflict in principle between
gun ownership for self-defense (and any other purpose) and rules
and regulations. One would think that women would have
some regard for political community and not promote the
dissolution of political community that is inherent in
"the cause of Second Amendment rights". There
is no individual self-defense, for women or anyone
else, in the state of anarchy.
There is no conflict in principle between gun ownership
for self-defense and rules and regulations that can
be applied against the violent and potentially violent.
Mothers Against Drunk Drivers worked to get the
laws strengthened and enforced against drunk
drivers. MADD did not have to work to get the
laws enacted to begin with. Personal security
for women is to get laws in place that make
sense. Then the objective can be to get the laws
1. SOUTHERN STATES POLICE BENEVOLENT ASSOCIATION:
17,000 member association providing numerous benefits
to their membership such as legal services and
legislative action. They are strong supporters of the
Second Amendment and the individual Right of law
abiding citizens to bear arms. A recent pole taken of
their membership, clearly shows the average line
Officer does not support infringement of those Rights.
They are also strong advocates of reasonable laws that
disarm the violent and depraved and are active
supporters for both positions. They have a vested
interest in the outcome of this case from a
professional law enforcement perspective. They are
keenly aware that if the law abiding are disarmed,
their jobs become far more dangerous. The members take
the their oath to uphold and defend the Constitution
The Association does not explain how the reasonable
laws that it strongly supports will distinguish
between law-abiding it does not want
to disarm and the "violent and
depraved" it supports disarming. Prominent in the Poto[w]mac[k]
Institute brief is the point that to "bear arms" describes
a military function. The JPFO-WAGC-SSPBA brief starts
with unjustified, unproven assertion that to "bear
arms" has something to do with the civil rights of
private individuals. Average line officers who
take their oath seriously have to have an understanding
of what their oath means about political
community under law. Law enforcement professionals
have to have some perspective of what law is and
what the rule of law is. They have not demonstrated
a perspective here.
2. JEWS FOR THE PRESERVATION OF FIREARM OWNERSHIP:
(JPFO) The organization was founded to educate and
promote firearm rights with a special focus on the
tragic consequences of being disarmed in an uncertain
and dangerous world. The Jews were not the only ones
to fall victim to genocide in recent history. They
strongly urge every one to guard their precious Second
Amendment Rights. They have over 5,000 members
nationwide and have a genuine interest in the Court's
ruling in this case as they have a profound concern
for the Second Amendment issue in this case... "Too
bad Ann Frank's Daddy didn't have one of those nasty
look'n assault rifles!"
JPFO does not explain the difference between the
Police Benevolent Association's "reasonable laws" and
"disarming" either. The
website equates touching
guns with laws with genocide. This is the extreme
of contemporary political cynicism. Nor
does JPFO explain what kind of success Ann
Frank's father was going have taking on
the Wehrmacht with an assault rifle. The French and
Italian resistance were both well-armed
but were both little more than a
nuisance to the Wehrmacht. Neither the Western Allies
on one side and the Red Army on the other could have
defeated the Wehrmacht alone. But if Ann
Frank's father had had an assault rifle. The
JPFO-WAGC-SSPBA brief starts with a childish
delusion of individual prowess.
Summary of Argument
The District Court's ruling was clearly consistent
with the preponderance of the scholarly analysis on
the individual Right to Bear Arms contained in the
[footnote one is not in the text of the original but
it must have been here.] The Founders intended a
three-way purpose for the Second Amendment: its most
primary and vital function is one of balance and
deterrence against would be usurpers and tyrants which
is the very foundation of the Amendment; it also
allows the civil authorities their select-militias;
and, provides the most fundamental Right to the
individuals to own the best means to protect their
Life, Liberty and property.
The Second Amendment was an assurance to the states
that their state maintained conscript militias would
be protected in the arrangements of new Constitution
as a balance and deterrence against the potential
dangers of the regular army to be maintained by the
federal government. It is hard to impute any relevance
to the Second Amendment today when the states do not
maintain conscript militias and the regular army of
the United States, unlike the regular
armies in seventeenth and eighteenth century
England and Europe, did not become a feared instrument
of state power. The Second Amendment
ratification debates, early
early courts cases, and
George Washington's and
proposals on militia issues make no mention
of an individual civil right to be secured by
government. The claim today fulfills a very
contemporary political fantasy. The Federalist
could accommodate the Antifederalist concerns
about the regular army and the militia because
they knew the conscript militia was a worthless
military institution and, with sufficient neglect,
would die a natural death. History has been on
the side of the Federalists. No
militia, no militia rights. No one is proposing
today the state maintained conscript militias be
resurrected as a balance against the armed
forces of the United States. Our
contemporary "cause of Second Amendment
rights" will have to find its authority
somewhere other than in the Second Amendment.
The U.S. Government improperly applied Title 18 sec.
922 (8) (G). Therefore the District Court was correct
in dismissing the indictment. Briefly stated, the
tension between individual rights and civil authority
must be maintained in appropriate balance.
The balance cannot reduce the Constitution to a treaty
among sovereign individuals.
If there is anything improper it is that the
US Government improperly enacted the Violence
Against Women Act because the Congress cannot address
the fundamental issue of the relationship between
citizen and state. Bad laws make bad court
decisions. Consistent with our present
rightwing agenda to redistribute power back to
the states, domestic violence is a state and local
concern. The business of the Federal Government
is to maintain the internal sovereignty of
the United States and empower local jurisdictions
to be able to enforce their local rules and
regulations by shutting down the illegal
traffic in firearms between and among local
The concept of Ordered Liberty is predicated upon the
sanctity of individual rights, which demands the right
to bear arms. This is the core of the "new order of
the ages" envisioned by our founders.
The new order created by the US Constitute was based
on the separation of political authority from divine
sanction. Political authority became secular. It
was based on the consent of the governed. It did not
look to scripture for its legitimacy. The obligations
of citizenship included the responsibilities of
self-government. The new order, nevertheless,
still created political authority. It did
not sanctify individual rights above
a The POWER of the Sword, Balance, and MUTUAL
In our democratic Republic, the Constitution is like a
great social contract between the body politic and our
civil authority, which derives its legitimacy from it.
If the JPFO-WAGC-SSPBA amicus is trying to say that the
Constitution is a contract between the rulers and the
ruled, it has the basic concepts confused with the
concepts of the
eighteenth century British Constitution. See
amicus. Mutual trust has to be
the public trust of a civic culture that
derives from common agreement on the
fundamental law of a frame of government.
It clearly sets forth unenumerated Rights to the
people that the civil authority can not breach or
infringe. There are unique separations and a balance
of powers written into our Constitution that gives
vitality, continuity and stability to our
practice of Ordered Liberty. There is one power, a
most dreadful one, that is at the very essence of the
issue here. It is this issue that this Court should
That is the awesome dreadful power of the
sword. It being entrusted to the state
in the scheme of things, is a given. It is one of its
primary functions in defense of the realm. To that
power, our Founders saw a clear and convincing need to
permanently set in place another check and
balance, or a separation of power, and they
clearly did so...
...in Order to... insure domestic Tranquillity,
provide for the common defense, . . . and secure the
Blessings of Liberty to ourselves and our Posterity.
"...[We the People] do ordain and establish the Constitution of the United States." The Constitution created a frame of government with "just powers". It did not institute anarchy. The unenumerated rights of the people like the enumerated rights of the people are protected from breach and infringement from within the frame of government itself not by the contingent of extralegal armed force sought by the "cause of Second Amendment rights".
We can certainly hope that the court will address the
fundamental relationship between the people and civil authority.
That they placed it second in the Bill of Rights is
indicative of the importance they placed upon it.
Joseph Story clearly set this forth when he wrote in
his Commentaries on the Constitution...
The order of the articles in the Bill of Rights is
arbitrary and without significant. Two of the
original articles were not ratified. The Second
Amendment was originally the Fourth.
§ 1889. The next amendment is: "A well
regulated militia being necessary to the security of a
free state, the right of the people to keep and bear
arms shall not be infringed"
§ 1890. The importance of this article will
scarcely be doubted by any persons, who have duly
reflected upon the subject. The militia is the natural
defence of a free country against sudden foreign
invasions, domestic insurrections, and
domestic usurpations of power by rulers.
It is against sound policy for a free people to keep
up large military establishments and standing armies
in time of peace, both from the enormous expenses,
with which that tended, and the facile means, which
they afford to ambitious and unprincipled rulers, to
subvert the government, or trample upon the rights of
the people. The right of the citizens to keep and
bear arms has justly been considered, as the palladium
of the liberties of a republic since it offers a
strong moral check against the usurpation and
arbitrary power of rulers and will generally, even if
these are successful in the first instance, enable the
people to resist and triumph over them.
The JPFO-WAGC-SSPBA amicus leaves out the rest of the passage:
And yet, though this truth would seem so clear, and
the importance of a well regulated militia would seem
so undeniable, it cannot be disguised, that among the
American people there is a growing indifference to any
system of militia discipline, and a strong
disposition, from a sense of it burdens, to be rid of
all regulations. How it is practicable to keep the
people duly armed without some organization, it is
difficult to see. There is certainly no small danger,
that indifference may lead to disgust, and disgust to
contempt; and thus gradually undermine all the
protection intended by the clause of our national bill
The fuller context gives a little different meaning.
The organization Story wanted to
see was provided by lawful authority. It
was not provided by private individuals. What was
guaranteed was the right of the people to participate
in the military functions of the state rather than
leave those functions up to the regular army which
in the eighteenth century was usually composed of
foreigners, mercenaries, and/or social misfits. See
more Story quotes in
The militia institution, as the Federalists expected,
was dying when Story wrote this. The regular army,
however, was not threatening.
It is clearly about the balance of power, the
intrinsic element of the system of checks and
balances that sustain and invigorate our
Constitutional processes and the inherent purpose of
the Second Amend. It is the ultimate
preservative, through the principle of
It is also the source of much childish political fantasy.
Under our Republican form of government, the
ultimate protectors of our Constitution are the people
themselves. . . the body politic. If the government
suppresses Rights illegitimately, it is the
Second Amendment that allows the
people, and may Almighty God forbid it ever become
necessary, the means to RESTORE the
Ordered Liberties enshrined in our Declaration of
Independence, our Preamble, and our Constitution. The
Second Amendment specifically entrusts to the
average law abiding citizen, the Responsibility
and Right to the power of the sword
the firearm of a military utility. It is a
balance of power between the
people, and the state as well as a
covenant of mutual faith and trust
between the people and our civil authority. Senator
Hubert H. Humphrey defined the core purpose of the
Second Amendment when he so astutely and eloquently
Certainly one of the chief guarantees of freedom under
any government, no matter how popular and respected,
is the right of citizens to keep and bear arms. This
is not to say that firearms should not be carefully
used and that definite safety rules of precaution
should not be taught and enforced. But the right of
citizens to bear arms is just one more guarantee
against arbitrary government, and one more
safeguard against a tyranny which now appears remote
in America, but which historically has proved to be
It is too bad that Humphrey is not around today to answer questions that were not asked forty years ago about the difference between citizenship under law and government and individual sovereignty in the State of Nature which is the state of anarchy. However, there are others we can ask to explain the difference now. See
Those that allege that this specific interpretation is
about "revolution, insurrection, rebellion, or
treason" are patently false and put forth pure
demagoguery in its vilest form. A clear distinction is
made here between the Right to do something, and the
Right to possess the means to do it. The
sole function of the Second is one of
deterrence, it becomes one of restoration
only in the unlikely event, and again,
may Almighty God forbid, it ever becomes
Having explained in the previous section that the
purpose of the Second Amendment is maintain a balance
of power between an armed populace of
privately armed individuals any and all
government, the JPFO-WAGC-SSPBA amicus
now says that what it really wants is a
reserve right to revolution. There is really
not much difference. The real questions are:
Does the armed populace consent to be government,
"surrender up the executive power of the law of
Nature," pledge allegiance to the flag and to the
Republic for which it stands? Does
the US Constitution create a frame of government
or is it a treaty among sovereign individuals?
The people do have a reserve right to revolution
but it is not a right that can possible be secured
by government. Any such proposition is a prescription
for anarchy (Dennis v. United States (1951)).
Those that are in opposition to this view can take
great comfort in, and remember what else was wisely
Prudence, indeed, will dictate that Governments long
established should not be changed for light or
transient causes; and accordingly all experience hath
shown, that mankind are more disposed to suffer, while
evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed
This passage is from the Declaration
for Independence, a charter for revolution.
It was adapted from John Locke's The
Second Treatise of Government. See
"The Rule of Law"
for more from John Locke.
The Court has before it sufficient scholarship in our
Appellee sister Amici Briefs that lead to this
one inescapable conclusion as set forth above. It is
this specific "knotty" constitutional question gently
touched by the District Court, that this Court should
squarely address. To ignore or skirt this issue is to
deny the Constitution. Amici herein pray this
Court take the judicial fortitude to find the above
purpose in the original intent and scope of the Second
Amendment and to adjudicate it so, in its final
Or, to tell some people they cannot have their
childish political fantasy.
(Stop! You're both right!)
The personal right to arms neither exist totally
independent of, nor completely under, the sovereign
civil authority. It is submitted here that they must
co-exist in a delicate balance within
the frame work of our Ordered Liberty. Our Founders in
their wisdom also saw a clear need for our civil
authority to have just and permanent control of the
sword because they knew from first-hand experience
the need for military force and/or a select
militia. It becomes obvious that the Second Amendment
has another vital purpose built into it. This becomes
evident through reading the above quoted passage form
Joseph Story's Commentaries,
The militia is the natural defence of a free country
against sudden domestic insurrections, and
Here again a delicate balance of power is at work in
the scheme of things. That the Founders intended a
secondary purpose for the Second Amendment. There is
indeed an intended balance between the states' need
for our select militias and the Militia envisioned by
Please provide some references that explicitly state
that this balance was to be maintain outside of an
organized state militia institution.
c. Personal defense, "Implicit in the Concept of
Amicus Poto[w]mac[k] Institute alleges a confusion
between "natura1 rights" and "civil rights" in the
district court's ruling, Br. at 8. One may dissect and
delineate species of rights till doomsday. There is a
level at which all rights are reduced to a common
denominator and further analysis becomes futile. The
right to own and carry "tools of defense and
deterrence" (firearms), which are the best means to
protect Life, Liberty and property, is
at the very core of all natural-human-civil rights,
and is inseparable from them. This was well settled
over 200 years ago when it was written,
We can hope that the court will provide some
clarification on the confusion between "natural"
rights and "civil" rights and between to "bear arms" and
to "carry" arms.
Blacks Law Dictionary defines "civil liberties":
Civil Liberties. Personal, natural rights guaranteed and protected by Constitution; e. g. freedom of speech, press, freedom from discrimination, etc. Body of law dealing with natural liberies, shorn of excesses which invade equal rights of others. Constitutionally, they are restraints on government.
And, "natural rights" and "civil rights" under the heading "Rights", "Constitutional Rights":
Natural rights are those which grow out of the nature of man and depend upon personality, as distinguised from such as are created by law and depend upon civilized society; or they are those which are plainly assured by natural law; or those which, by fair deduction from the present physical, moral, social, and religious characteristics of man, he must be invested with, and which he ought to have realized for him in a jural society, in order to fulfill the ends to which his nature calls him. Such are the rights of life, liberty, privacy, and good reputation.
Civil rights are such as belong to every citizen of the state or country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government. They include the rights of property, marriage, equal protection of the laws, freedom of contract, trial by jury, etc. Or, as otherwise defined, civil rights are rights appertaining to a person by virtue of his citizenship in a state or community. Such terms may also refer, in its very general sense, to rights capable of being enforced or redressed in a civil action. Also, a term applied to certain rights secured to citizens of the United States by the Thirteenth and Fourteenth amendments to the Constitution, and by various acts of Congress (e. g., Civil Rights Acts) made in pursuance thereof.
We hold these truths to be self-evident that
all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that
among these are, [and] Liberty...
Self evident means just that. No further analysis is
necessary. Our Founding Fathers settled it in 1776.
The Declaration of Independence was a charter for
revolution. It was also a declaration of war. The
Declaration of Independence continues: "That to secure
these rights, Governments are instituted among Men,
deriving their just powers from the consent of the
governed,..." The Constitution instituted new
government with "just powers". It did not institute
The Right and Responsibility to self-defense is
a significant precondition to a free people's peaceful
coexistence. Crime statistics reveal that the absence
of laws limiting the people"s right to bear arms for
their own defense does not, on the whole, impede
citizens' peaceful coexistence. These statistics
suggest that gun controls' net, aggregate effect
is in fact to impede public safety.
While teaching criminal deterrence and law and
economics at the University of Chicago, John R. Loft,
Jr., conducted an exhaustive
jurisdiction-by-jurisdiction analysis of crime
statistics that casts serious doubt upon any causal
connection between stricter gun controls and lower
violent-crime rates. He found that the crime
statistics for 1992 reveal that in fact violent-crime
rates were highest in states with the most
restrictive rules, next highest in states that allowed
local authorities discretion in granting
concealed-weapon permits, and lowest in states
with non-discretionary permitting rules.
Loft's longitudinal analysis revealed that when a
state law allowing concealed handguns went into effect
in a county, murders fell by about 8 percent, rapes by
5 percent, and aggravated assaults by 7
While such laws also yielded higher auto theft and
larceny rates, this outcome is consistent with the
substitution effect that might be expected as the risk
that any potential victim might be lawfully armed
deters criminals from committing violent crimes
against the person.
John Lott was the John M. Olin Professor of Law and
Economics at the University of Chicago. (He has
since relocated.) For observations on this
circumstance and what it says about the
objectivity of Lott's analysis, see
The Rightwing Movement.
Lott's study reveals that the deterrent effect of an
armed citizenry is especially strong with respect to
The National Crime Victimization Survey data show that
a woman with a gun does much more to improve her
ability to defend herself than providing a gun to
Some women who were attempting to purchase guns in
response to threats from former lovers have been
murdered or raped during legal waiting periods.
"In all too many painful cases the only difference
between a battered woman and a dead woman is a
gun." Govt. Br. At 9,.. .waiting to buy one to
protect herself. There are two sides to this tragic
Lott's unprecedented study clearly demonstrates how
law-abiding citizens' exercise of the right to bear
arms preserves social order. Loft infers from his
copious data that "concealed handguns are the most
cost-effective method of reducing crime that has been
analyzed by economists."
Concealed-handgun laws provide four times the benefit
in reducing crime than hiring more police in order to
increase arrest and conviction rates.
In the eighteenth century when there was a threat to
community, the citizenry was required to be armed, to
undergo training and be available to guard against the
threat. It was a rather different concept than
maintaining a balance of power between privately armed
individuals and any and all government. The militia was
cheaper than a professional force and it obligated
the individual to the burdens of citizenship in
That the citizenry are also a vital role in
cooperation with professional law enforcement is
implicit within American Constitutionalism's
allocation of Rights and Responsibilities, and the
balances at work therein. The Supreme Court made it
clear the Constitution does NOT grant citizens
any right to police protection:
[N]othing in the language of the [Fourteenth
Amendment's] Due Process Clause itself requires the
State to protect the life, liberty, and property of
its citizens against invasion by private actors. The
Clause is phrased as a limitation on the State's power
to act, not as a guarantee of certain minimal levels
of safety and security.
DeShaney v. Winnebago County Dep't of Social
Senvs., 489 U.S. 189, 195 (1989). American
Constitutionalism's emphasis upon the individual's
right to "liberty" as opposed to the government's
responsibility to guarantee a collectively defined
"order" or "security" provides the ultimate context
within which the Second Amendment
Right/Responsibility to own and
carry Arms must be understood.
See Mary Ann Glendon, Rights Talk (1991) for a discussion on this conflict. However, in no way can the conflict create a justification for anarchy.
The overwhelming preponderance of evidence clearly
indicates that firearms in the hands of
responsible competent citizens saves
more lives and the social benefits far outweigh the
costs. Thus, the third side to our Second Amendment is
the Responsibility and Right of the
individual citizen to own and carry the tools
of self "defense and deterrence" the firearm.
How do we tell the difference between the competent
and responsible and the incompetent and irresponsible.
Or, is this a cover for a political fantasy? Is this
third side to the Second Amendment guaranteed by
anything more than the kind of word of honor and
promise of good faith a sovereign state brings to a
d. Even Police Agree.
From the number of Law Enforcement filing as
Amici on the Governments side, the Court could
get the mistaken impression that a great majority
support the "states rights", or "select militia" view
of the Second Amendment. Judicial notice is directed
to the data set forth in Appendices A . To your
Amici's knowledge, there has never been a
thorough nation wide poll conducted of the entire body
of law enforcement (part of our entrusted select
militia), on this issue. However, sufficient data is
presented herein that would lead a reasonable mind to
conclude that the majority of our Nation's Law
Enforcement personnel firmly support a personal Right
and Responsibility to bear arms.
As citizens or as individual sovereigns? There has
not been a poll with that question asked. There has
not been a national civics lesson on the difference
between citizenship under law and government and
individual sovereignty in the State of Nature.
THE DISTRICT COURT WAS CORRECT TO DISMISS THE
INDICTMENT OF DR. EMERSON AS Title 18 § 922(g)(8),
Domestic violence is an abomination and a scourge upon
our great land! Your Amici herein are in
complete wholehearted concurrence with the Government
and its sister Amici in this. We further
strongly support Statutes that DISARM
the potentially violent, so long as they are strictly
construed, as they do indeed affect a fundamental
a. Good law Wrong Application
The district court's dismissal of the indictment
against the Appellee was proper as further set forth
in Appellee's and our sister Appellee Briefs and we
are in concurrence with it. However, Title 18 §
922(g)(8) should never be construed to arbitrarily
disarm a person under a boiler plate protective order
without a finding of a clear and present danger.
JPFO-WAGC-SSPBA need to outline a scheme of regulation
that will disarm the violent and potentially violent without also arbitrarily arming the same.
b.[Ex Parte] U.S. v. Miller
Stare decisis cannot bar consideration of
Emerson's constitutional case, because the Government
must rely on a theory of "selective" incorporation:
that the Second Amendment cannot be subject to
incorporation under the Fourteenth Amendment because
it merely allocates jurisdiction over militias to the
States. While this case concerns the application of
federal law, the issue of whether the Second Amendment
may be applied against the States is significant
because the Government's argument against Emerson's
Second Amendment claim is that the right to bear arms
unlike those Bill of Rights guarantees that
have been incorporated is not a personal
Within modern constitutional law, the general notion
of selective incorporation that the Fourteenth
Amendment guarantee of due process of law
is extensionally selective (covering only some
Bill of Rights guarantees), or intensionally
selective (covering specific guarantees only in
part) is problematic,
at best. Although he fundamentally disagreed with
extensionally total incorporation, Justice John
Marshall Harlan considered it internally consistent,
looking to the Bill of Rights "word for word, clause
for clause, precedent for precedent because ... the
men who wrote the Amendment wanted it that
way."Duncan v. Louisiana, 391 U.S. 145, 176
(1968) (Harlan, J., dissenting)(emphasis added).
Justice William Brennan rejected "intensionally"
selective incorporation because he thought that if a
specific guarantee is "so rooted in the traditions
and conscience of our people as to be ranked as
fundamental" (emphasis added) then "only
impermissible subjective judgments can explain
stopping short of the incorporation of the full sweep
of the specific being absorbed." Cohen v.
Hurley, 366 U.S. 117, 158 (1961) (Brennan, J.,
dissenting), quoting Snyder v. Massachusetts,
291 U.S. 97, 105 (1934).
The Supreme Court did not rule in [ex parte] U S.
v. Miller that the Second Amendment is purely
jurisdictional. For this Court to so rule would be
anomalous. While some contend that the Establishment
for example, is purely jurisdictional in nature,
the Supreme Court has decisively ruled otherwise.
Everson v. Board of Education, 330 U.S. 1
This history behind the Second Amendment is
dispositive as to whether it guarantees a personal
right. The Court has examined historical practice
determining, for example, whether barring a criminal
defendant from his jury's visit to the crime scene
violated fundamental justice. Snyder v.
Massachusetts, 291 U.S. 97, 111-114 (1934). The
history behind the Second Amendment support the
position that the Responsibility and Right to bear
Arms is indeed, personal.
Modern unenumerated rights doctrine invites such
historical inquiry. Yet the Court has divided over
whether to define such rights according to a criterion
that appeals to history or to the preconditions to a
free people's coexistence, or according to a broader
individualist criterion. The right to bear arms merits
the same deference as unenumerated rights enjoy under
the former criterion, which covers rights "deeply
rooted in this Nation's history and tradition," or in
the concept "implicit of Ordered Liberty."
Several years after suggesting its most expansive
account of the scope of unenumerated rights in Roe
v. Wade (410 U.S. 113 (1973)), the Court ruled
that the appropriate limits on the substantive rights
that the Fourteenth Amendment's guarantee of due
19 protects shall be
observed by appeal to those practices that are "deeply
rooted in this Nation's history and tradition."
Moore v. East Cleveland, 431 U.S. 494, 503
(1977) (plurality opinion). A substantial line of
rulings has since followed this criterion.
The Second Amendment's "right of the people to keep
and bear Arms" is "deeply rooted in this Nation's
history and tradition" because the Amendment was
meant to be more than an empty vestige of English
legal practice, or an allocation of jurisdiction to
the states. Those who enacted it defined the "Militia"
to which the Amendment refers in expansive terms. The
founders' original intention in turn reflected the
public's expectation during the founding era, echoed
by early constitutional commentators.
Therefore selective incorporation could not logically
be applied to the Second Amendment.
c. "A New Order of the Ages” In our National
Disagreement over the Second Amendment's meaning goes
to the heart of what the Great Seal of the United
States declares: a novus ordo
seclorum "A New Order of the Ages,"
designed to avoid the terror later visited upon the
Old World by Nazi mass murder
and Communist terror famines and political purges.
Thomas Jefferson's assertion of "unalienable Rights"
to "Life, Liberty and the pursuit of Happiness"
23 echoed by the
distinguishes the novus ordo
seclorum from the Canadian founding law's
guarantee of "peace, order and good government."
To leap from the Second Amendment and Thomas Jefferson to twentieth century genocide to the Canadian Constitution stretched credulity, but the armed populace fantasy the third side of the Second Amendment is political fantasy.
The Supreme Court's denial that citizens have a
Constitutional right to police protection coheres not
only with a reading of the Second Amendment as a
guarantee of a personal Responsibility and
Right to bear Arms, but also with the
Court's other denials of other alleged governmental
responsibilities "to provide substantive services."
Youngberg v. Romeo, 457 U.S. 307, 317 (1982).
The Court has also denied that the Constitution
imposes no obligation upon government to provide
or other medical services; or to subsidize in any way
citizens' exercise of the right to freedom of
The novus ordo seclorum's emphasis upon
"liberty" has engendered its categorical
approach to the rights of the individual. Its approach
to the Right to bear arms is unlike the
contextual approach that would forbid or
severely limit gun ownership in exchange for a
governmental guarantee of personal security. To this
extent, it understands the right to bear arms in quite
different terms than a legal system that makes "peace"
a founding principle in place of "Life." It
also defines the rights of criminal suspects
differently than would a legal system that makes
"order" a founding principle in place of
"Liberty," or "good government" in place of
"the pursuit of happiness."
The use to which Amicus Curiae Poto[w]mac[k]
Institute puts its distinction between what it calls
"individual" rights and "collective" rights
whereby the right to bear arms falls solely under the
latter heading might be appropriate if American
Constitutionalism guaranteed a constitutional a right
to those elements of "peace" specifically,
police protection that are the necessary means
to preserving the most basic of Human Rights,
which is Life itself. The
Right/Responsibility to bear arms could then be
understood as a solely collective right exercised
under government's exclusive authority. Because
American Constitutionalism makes no such guarantee,
the right to bear arms whose utility as one
means to realizing society's collective interest in
fighting crime has been demonstrated should be
upheld as an individual Right as well.
The Poto[w]mac[k] Institute amicus takes its argument from the Eighth Circuit in
Hale that the distinction between an individual right and collective right is irrelevant the state function of the militia.
Criminal procedure dramatically illustrates how the
novus ordo seclorum's approach to rights alters
the English model from which it arose. American
Constitutionalism recognizes the primacy of the
individual rights of the accused over a vaguely
defined collective right to public order.
The exclusionary rule deems the state's use of evidence
obtained in violation of the Fourth Amendment such an
invasion of the "indefeasible right of personal
security, personal liberty and private property" that
the Fourth Amendment "might as well be stricken from
the Constitution." Boyd v. United States, 116
U.S. 616, 630 (1886); Weeks v. U. S., 232 U.S.
383, 393 (1914). The Court extended this rule to the
States lest these rights be "undeserving of mention in
a perpetual charter of inestimable human liberties."
Mapp v. Ohio, 367 U.S. at 655. Although the
requirement that criminal suspects be read their
rights was not first stated as a categorical rule, the
Court assumes that suspects' statements cannot
otherwise be assumed voluntary. Miranda v.
Arizona, 384 U.S. 436, 458, 467 (1966).
Canada neither imposes the exclusionary rule, nor
requires that suspects be read their rights. Its
courts read its analogue to the Fourth Amendment
according to England's rule excluding only illegally
obtained evidence that is of "trifling weight" and
"gravely prejudicial to the accused" issues
determined according to the judge's "discretion" and
"sense of fairness." Noor Mohamed v. The King,
1 All E.R. 365, 370 (1949); R. v. Wray, 
OR. Vol. 2, 3, 4. Canada's Supreme Court follows
England's similarly contextual approach to
interrogatory power: a statement is deemed "voluntary"
as long as it is not obtained "by fear of prejudice or
hope of advantage." Ibrahim v. The King, 
App.Cas. 599, 609.
The Second Amendment has no meaningful analogue in
England's Bill of Rights, which recites that King
James II disarmed Protestants and tried "to subvert
and extirpate the Protestant religion and the laws and
liberties of this kingdom."
This provision of England's Bill of Rights was meant
to maintain a Protestant hegemony after the Revolution
This goal is fundamentally incompatible with the
independence that religious institutions enjoy under
American Constitutionalism. Long before the Supreme
Court applied either religion clause of the First
Amendment against the states,
it observed, while upholding churches' right to
settle internal disputes free of civil interference,
that as many English statutes hampered "the free
exercise of religious belief and worship," England's
Anglican establishment made its "dissenting church"
something other than "a free church in the sense in
which we apply the term in this country." Watson v.
Jones, 80 U.S. (13 Wall.) 679, 728 (1871). It is
therefore inappropriate to treat the English Bill of
Rights as does, for example, Amicus Curiae
Poto[w]mac[k] Institute as a document that has any
bearing at all on reading the Second Amendment.
The JPFO-WAGC-SSPBA brief here is in conflict
with the "sufficient scholarship" that it has
previously cited which puts the "right to keep
and bear arms" in the English tradition. The
US Constitution, although it reformulated the
concepts of the British Constitution, and the
Second Amendment thereto are in the tradition
of English law. What is not a part of the
English tradition is the American gun culture
and its insurrectionist fantasies. The American
gun culture on the contrary has its roots in
the rebellious traditions of Scotland and Ireland
which are not only not a part of the English
tradition but have been constantly at war with
it to this very day. It is instructive
that the Rutherford Institute, part of the
broad category of rightwing politics, takes
its name from Samuel Rutherford, an eighteenth
century Scotsman who invoked natural law and
God's law to rebel against British authority.
d. History: A Most Cruel Teacher
In the first paragraph of the Argument in the
Government's Brief, p 11, a very slight aurora of
contempt for "history" is discerned by your
Amici herein. We respectfully but sternly
remind all who read this Brief those who
fail to learn the lessons of History are
condemned to repeat them. History is a very
cruel and merciless teacher. This century has shown
with awesome brutal carnage and human misery, the
dreadful abuses perpetrated by illegitimate regimes,
terrorists and tyrants, that had monopolized the power
of the sword to put their evil upon the
disarmed and helpless. The primary means
the Marxist-Leninist Bolsheviks used to consolidate
their power over Russia was in part by banning private
The nineteenth-century German sociologist Max Weber
proposed that "[t]he claim of the modern state to
monopolize the use of force is as essential to it as
its character of compulsory jurisdiction and of
Weberian confidence in this monopoly of power may shed
light on subsequent German history, but they are
clearly repugnant to American ideals of Ordered
enshrined in our unique social contract. The
Constitution and that vital three part Amendment
therein the Second.
See Appendix G on
the monopoly on force from an American legal
Bolsheviks consolidated their power in a struggle
for power when there was no law. The circumstance
was very different from ordered liberty under a
frame of government.
German legal theory in the nineteenth century
developed the theory of the Rechtstaat, the
state of laws. The Nazi seizure of power was not
a fulfillment of Weber's concept but a repudiation.
The Weimar Republic was a government which did not
have the political will to maintain its internal
sovereignty that is, "to monopolize the use of force"
(Appendix H) against
the "armed citizen guerrillas" called
Stormtroopers that would "outflank" it.
(Appendix D) History
is a cruel teacher. If we are to operate on new
fundamental principles of law and government, they
will have to be better formulated and argued than
what we see here.
Just as there is a separation of powers between our
Legislative, Executive, and Judiciary, each with its
specific function, so it is with our Second Amendment.
Senator Humphrey clearly stated the primary purpose as
above. It is indeed to act as a deterrence and balance
as held above, and is truly the "palladium" of our
Ordered Liberty. That it provides other social
benefits as well, says much for the profound wisdom of
those that wrote it.
So now the Second Amendment creates a fourth branch
of government with armed veto power over the other
three. In fact, the people, as the NRA's "armed citizen
(Appendix D), do have an armed
veto power over government but only in a revolutionary
situation. Revolutionaries do not have a right to
revolution secured by government.
1. "A well regulated Militia, being necessary to the
security of a free state, the right of the
people to keep and bear arms, shall not be infringed."
U. S. Const. Art II
2. Preamble to U.S. Constitution,
3. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES, 746 (1833) (1890).
4. Hubert Humphrey, Know Your Law Makers, Guns, Feb.
1960, at 4.
5. Declaration of Independence, 1776.
6. "THE RIGHT TO KEEP AND BEAR ARMS", REPORT OF THE
COMMITTEE ON THE JUDICIARY U. S. SENATE NINETY-SEVENTH
CONGRESS SECOND SESSION, Feb. 1982, "Historical Basis
of the Right to Keep and Bear Arms", by David Hardy,
at 53. Where "select" militia was referred to as being
like our National Guard, by Richard Henry Lee.
7. Declaration of Independence. 1776.
8. JOHN R. LOTT, JR., MORE GUNS LESS CRIME 46 (1998)
9. Id. at 52-53.
10. Id. 51.
11. Id. at61.
12. Id. at 62.
13. Id. at 205 n.42.
14. Id. at 115.
15. Id. at 159.
16. The Fourteenth Amendment guarantees that the
States shall not deprive citizens of life, liberty, or
property without "due process of law." U.S. CONST.
17. The Constitution's "religion clauses" provide:
"Congress shall make no law respecting and
establishment of religion, or prohibiting the free
exercise thereof." U.S. CONST. amend I.
18. See, e.g., Akhil Amar, The Bill of Rights as a
Constitution, 100 YALE L. J. 1131, 1159 (1991).
19. Concerning this guarantee, see supra note
20. Bowers v. Hardwick, 478 U.S. 186, 192
(1986) (a right to homosexual sodomy is not
"deeply rooted in the Nation's history and
tradition"); Michael H. v. Gerald D., 491 U.S.
110, 127 (1989) (opinion of Scalia, J.) (in deciding
whether a legal presumption that a child born to a
married woman is a child of the marriage violates the
rights of biological fathers who conceived children
through adultery, "[w]hat counts is whether the States
in fact award substantive parental rights" to such
biological fathers); Cruzan v. Director, Missouri
Dep't of Health, 497 U.S. 261, 283, 284 (1990) (a
state may require "clear and convincing evidence" of
incompetent persons' wishes before life support is
removed from them, because this level of proof has
traditionally been imposed in analogous cases
concerning lost wills and contracts to make bequests,
and "most, if not all, States" forbid oral testimony
in determining the wishes of parties in transactions
of lesser consequence); Washington v.
Glucksberg, 521 U.S. 702, 723 (1997) (a right to
physician-assisted suicide would "reverse centuries of
legal doctrine and practice, and strike down the
considered policy choice of almost every State"..
21. In addition to six million Jews (and the deaths of
lesser numbers of dissidents, Gypsies, homosexuals,
and Jehovah's Witnesses), the Third Reich death toll
includes at least 100,000 killed in the T4 and 14f13
euthanasia programs. ROBERT JAY LIFTON, THE NAZI
DOCTORS 142 (1986). Another 200,000 to 350,000 persons
were sterilized. Id. at 27.
22. Marxist-Leninism involved the deliberate killings
of millions. The Soviet Communist Party’s killing or
deportation of property-owning peasants, and
concentration of remaining peasants in collective
farms, caused about 14.5 million deaths from 1929 to
1933. ROBERT CONQUEST, THE HARVEST OF SORROW (1986).
Stalin's Great Purge of 1937-38 totaled 690,000
political executions(compared to 3,932 such executions
under the czars from 1825 to 1917). STEPHANE COURTOIS
ET AL., THE BLACK BOOK OF COMMUNISM 10, 13 (Jonathan
Murphy & Mark Kramer trans., 1999). Communist
governments caused twenty million deaths in the Soviet
Union, sixty-five million in China, three million in
Southeast Asia, two million in North Korea, 1.7
million in Africa, 1.5 million in Afghanistan, one
million in Eastern Europe, and 150,000 in Latin
America. Id. at 4.
23. 1 THOMAS JEFFERSON, THE PAPERS OF THOMAS JEFFERSON
429 (Julian P. Boyd ed., 1950).
24. The Constitution's provisions safeguarding "life,
liberty, or property" slightly altered Jefferson"s
formulation. U.S. CONST. amend. V; U.S. CONST. amend
XIV, ' l.
25. This provision appears in Section 91 of the
British North America Act of 1867.
26. Lindsey v. Nourmet, 405 U.S. 56, 74 (1972)
(Fourteenth Amendment's Due Process Clause imposes
upon government no obligation to provide adequate
27. Maher v. Roe, 422 U.S. 464, 469 (1977)
(Constitution imposes no obligation on the
states to pay for indigent women's pregnancy-related
medical expenses, or to pay any of the medical
expenses of indigents); Harris v. McRae, 448
U.S. 297, 317-318 (1980) (government under no
obligation to fund abortions or other medical
services); Rust v. Sullivan, 500 U.S. 173, 201 (1990)
(federal government may ban use of family planning
funding for programs that include abortion services,
because the government is under "no constitutional
duty to subsidize an activity merely because the
activity is constitutionally protected").
28. Regan v. Taxation With Representation of
Wash., 461 U.S. 540, 545 (1983) (rejecting
nonprofit organization's claims that its rights of
free speech and equal protection entitle it to tax
deductible contributions in support of its lobbying
activity); Lyng v. Automobile Workers, 485 U.S.
360, 369 (1988) (rejecting a challenge made on free
speech grounds to a Food Stamp Act amendment denying
29. "Everyone has the right to be secure against
unreasonable search or seizure.” Charter of Rights and
Freedoms, Section 8.
30. CONSTITUTIONAL HISTORY 463 (George Burton Adams
and H. Morse Stephens eds., 1929).
31. England's Bill of Rights states that Parliament
called William and Mary to the throne to protect
England's "religion, laws and liberties"; expects that
they will preserve their subjects from all "attempts
upon their religion, rights and liberties"; calls them
pleased that Parliament should sit and, with their
concurrence, provide for "the settlement of the
religion, laws and liberties of this kingdom"; calls
the King a divine instrument delivering England "from
popery and arbitrary power"; and provides that all
subjects who must take oaths of allegiance and
supremacy must swear that they do not believe princes
excommunicated by the pope may be deposed, and declare
that no foreign power has any "ecclesiastical or
spiritual" jurisdiction within Britain. SELECT
DOCUMENTS OF ENGLISH CONSTITUTIONAL HISTORY 464, 465,
466 (George Burton Adams and H. Morse Stephens eds.,
1929). Because the welfare of "this Protestant
kingdom" are inconsistent with a Roman Catholic
monarch, it provides that any who profess Catholicism
or marry a Catholic cannot wear the crown. Id.
32. The Court incorporated the Free Exercise Clause
in Cantwell v. Connecticut, 310 U.S.
296 (1940). It incorporated the Establishment Clause
in Everson v. Board of Education.
33. In response to a report of peasant protests
against requisitioning, Lenin ordered "[e}xecution for
concealed guns" in an August 9, 1918 telegram. 35
VLADIMIR ILICH LENIN, COLLECTED WORKS 349 (1966). In
his "Appeal to the Working Classes," Cheka founder and
secret police chief Feliks Dzerzhinsky declared that
"anyone caught in illegal possession of a firearm will
be immediately executed." COUIRTOIS ET AL., supra note
35, at 74 (Izvestiya, September 3, 1918). In
their Order No. 171 dated June 11, 1921, Bolshevik
leaders Aleksandr Antonov-Ovseenko and Mikhail
Tukhachevsky planned the pacification of the Tambov
province through the killing of hostages if hidden
arms were not disclosed, and summary executions of
eldest sons wherever arms were found. Id. at
116. In its reports for October 1922, the Secret
police noted a record suicide rate in Kiev as peasants
could neither pay taxes nor rebel, "since all their
arms have been confiscated." Id. at 119
(Russian Center for the Conservation and Study of
Historic Documents, Moscow, 17/87/296/35-36).
34 MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC
ORGANIZATION 156 (Talcott Parsons ed., 1964).
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