The Potowmack Institute

The 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 Appellee

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 I'll shoot!"

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 enforced.

1. SOUTHERN STATES POLICE BENEVOLENT ASSOCIATION: A 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 very seriously.

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 JPFO 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 Second Amendment. 1 [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 militia acts, early courts cases, and George Washington's and Henry Knox's 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 jurisdictions.

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 ordered liberty.

Page 5



a The POWER of the Sword, Balance, and MUTUAL TRUST

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 Potowmack Institute 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 squarely address.

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...

"...[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.

Page 6

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.

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 of rights.

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 .../supct2.html 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 ever-present deterrence.

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

Page 7

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 stated,

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 .../597intro.html

b. Insurrectionist

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 necessary.
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)).

Page 8

Those that are in opposition to this view can take great comfort in, and remember what else was wisely written...

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 Potowmack Institute amicus and "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 ruling.
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

Page 9

the need for military force and/or a select 6 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,

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 the Founders.
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 Ordered Liberty"

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.

Page 10

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 anarchy.

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. 8 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

Page 11

percent. 9 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. 10

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 rape. 11 The National Crime Victimization Survey data show that providing a woman with a gun does much more to improve her ability to defend herself than providing a gun to man. 12 Some women who were attempting to purchase guns in response to threats from former lovers have been murdered or raped during legal waiting periods. 13

"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 coin....

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." 14 Concealed-handgun laws provide four times the benefit in reducing crime than hiring more police in order to increase arrest and conviction rates. 15
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 political community.

Page 12

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:

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 treaty?

d. Even Police Agree.

Page 13

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.


INDICTMENT OF DR. EMERSON AS Title 18 § 922(g)(8), WAS

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 natural-human-civil Right/Responsibility.

a. Good law Wrong Application

Page 14

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 — Incorporation

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 right.

Within modern constitutional law, the general notion of selective incorporation— that the Fourteenth Amendment guarantee of due process of law 16 is extensionally selective (covering only some Bill of Rights guarantees), or intensionally selective (covering specific guarantees only in part)— is problematic,

Page 15

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 Clause, 17 for example, is purely jurisdictional in nature, 18 the Supreme Court has decisively ruled otherwise. Everson v. Board of Education, 330 U.S. 1 (1947).

This history behind the Second Amendment is dispositive as to whether it guarantees a personal right. The Court has examined historical practice while

Page 16

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 process law 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. 20

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

Page 17

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 Seal

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 21 and Communist terror famines and political purges. 22 Thomas Jefferson's assertion of "unalienable Rights" to "Life, Liberty and the pursuit of Happiness" 23— echoed by the Constitution 24 — distinguishes the novus ordo seclorum from the Canadian founding law's guarantee of "peace, order and good government." 25
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

Page 18

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 housing; 26 abortion-related services 27 or other medical services; or to subsidize in any way citizens' exercise of the right to freedom of speech. 28

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

Page 19

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 29 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, [1970] 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, [1914] 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." 30 This provision of England's Bill of Rights was meant to maintain a Protestant hegemony after the Revolution of 1688. 31 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, 32 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

Page 21

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 firearms. 33 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 continuous organization." 34 Weberian confidence in this monopoly of power may shed light on subsequent German history, but they are clearly repugnant to American ideals of Ordered Liberty

Page 22

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 Scholar.

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 guerrillas" (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 text@note1

2. Preamble to U.S. Constitution, text@note2


4. Hubert Humphrey, Know Your Law Makers, Guns, Feb. 1960, at 4. text@note4

5. Declaration of Independence, 1776. text@note5

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. text@note6

7. Declaration of Independence. 1776. text@note7

8. JOHN R. LOTT, JR., MORE GUNS LESS CRIME 46 (1998) text@note8

9. Id. at 52-53. text@note9

10. Id. 51. text@note10

11. Id. at61. text@note11

12. Id. at 62. text@note12

13. Id. at 205 n.42. text@note13

14. Id. at 115. text@note14

15. Id. at 159. text@note15

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. amend. XIV, text@note16

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. text@note17

18. See, e.g., Akhil Amar, The Bill of Rights as a Constitution, 100 YALE L. J. 1131, 1159 (1991). text@note18

19. Concerning this guarantee, see supra note 2. text@note19

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".. text@note20

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. text@note21

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. text@note22

23. 1 THOMAS JEFFERSON, THE PAPERS OF THOMAS JEFFERSON 429 (Julian P. Boyd ed., 1950). text@note23

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. text@note24

25. This provision appears in Section 91 of the British North America Act of 1867. text@note25

26. Lindsey v. Nourmet, 405 U.S. 56, 74 (1972) (Fourteenth Amendment's Due Process Clause imposes upon government no obligation to provide adequate housing). text@note26

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"). text@note27

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 households benefits. text@note28

29. "Everyone has the right to be secure against unreasonable search or seizure.” Charter of Rights and Freedoms, Section 8. text@note29

30. CONSTITUTIONAL HISTORY 463 (George Burton Adams and H. Morse Stephens eds., 1929). text@note30

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. at 468. text@note31

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. text@note32

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). text@note33

34 MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 156 (Talcott Parsons ed., 1964). law text@note34

© Potowmack Institute