The Potowmack Institute
Update 04/26/2011

Oral arguments were held for Heller before the Supreme Court on March 18, 2008
For more on the issues before the Supreme Court

AirAmerica Radio went bankrupt in early 2010. Any media enterprise that put this kind of incredibly ignorant crude ugly air waves trash on its schedule did not deserve to servive.

Update 02/01/2008

Briefs filed in Heller are at:

The sentiment here is not peculiar to the Potowmack Institute:
Search down the page for "lionel".

Update 11/23/2007

US Supreme Court has granted certiorari in case no. 07-290:

Nov 20 2007 Petition GRANTED limited to the following question: Whether the following provisions - D.C. Code 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Update 11/19/2007

[A Few Minute of Transcript]
[More on a Right to Keep and Bear Arms]

The Lionel Show: Or, Failed Political Consciousness at AirAmerica Radio; Or, Getting Seriously Political.

Here is where we begin. There is history to be made.

Gun rights and gun violence are not about guns. They are about controlling political outcomes in a much larger political struggle over the modern state, the twentieth century social contract and the Libertarian Right's(*) ambition to liberate capitalism from accountability. Liberating guns and gun ownership and use from accountability parallel's liberating capitalism from accountability. The same ideology and the same political cynicism are at work in both agendas. Until guns and gun rights are defined and addressed on their proper terms they will remain a pernicious and obstructionist factor in American politics. The immediate issue, the individual right to be privately armed, is very simple but is nowhere to be found on its proper terms in public discourse including on AirAmerica Radio. Please read on.

(* What the Potowmack Institute calls the "Libertarian Right" is also known as "neoliberalism". Libertarian Right connotes a latent authoritarianism. Both are refashionings of eighteenth and nineteenth century classical and neoclassical liberal economics and applied against the modern state rather than eighteenth century mercantilism.)

The problem is leadership, both political and intellectual. As the Republican Party self-destructs, what we find here is why bankrupt Democrats and "liberals", so called, who now call themselves "progressives" because they have lost control over language, have such a hard time winning elections and have so little to offer when they do. At a time when gun violence's problems and solutions are intellectually very simple and the collateral damage in the larger struggle is so great, there is no subject on which there is more ignorance, absurdity, and failed leadership and consciousness. One of the great puzzles of present politics is why this one intellectually very simple subject, different from all others, draws so much hostility. It ranges from the halls of Congress to the nearest chapter of college Democrats and everyone in between including AirAmerica Radio. Here is the measure of all things political.

Most hosts on AirAmerica have had this discussion on its proper terms through email or regular mail. There has never been a response. But, just try to bring it up on the air.

How about on Air America Radio's "The Lionel Show"? I heard "The Lionel Show" promotionals, taken from that previous program which I had missed, that run like this:

It sounds like there is some interest here and a place for a reasonable discussion. I called in on October 31, 2007. One issue that morning had been the foolish question asked Dennis Kucinich about UFOs at the Democratic Party debate the night before. I had a serious question to pose to candidates. I sat in the queue for two hours without getting on the air. I sat in the queue November 1 for another two hours and before the end was disconnected. Evidently, something about serious politics is very troubling on AirAmerica Radio. I called again to find out what was the problem. The operator said Lionel was confused about the question. Read: He has contempt. The question was, what was his take on the issue? I looked for the opportunity to give my take which as far as I knew may or may not have been different. It seemed like a reasonable question for "progressive talk radio" worthy of a reasonable, opened-minded reception.

Instead there was a real lesson on the state of the political culture. Here is where we understand everything else in our present politics. Are we an enlightened citizenry capable of self-government through thoughtful and deliberative public processes or do we reduce the most vital and fundamental issues of political life to bumper sticker slogans and soundbite demagoguery? The gun controllers have not yet gotten beyond promoting trigger locks and suing the gun manufacturers. The politicians are bankrupt cowards who read the polls and run for cover. Our shallow, lazy news organs are little better than social gossip columnists. The people are left adrift. Then there is AirAmerica Radio's "The Lionel Show". The style more closely resembles that of Bill O'Reilly, Michael Savage or David Horowitz— not what one would expect on something that calls itself "progressive talk radio".

The experience was not the least bit unusual, but AirAmerica Radio might explain why it gives a mouthpiece to this incredibly ignorant, crude, ugly, thoroughly obnoxious, intellectually primitive, personally and intellectually intolerant, politically dimwitted barbarian. This is airwaves trash. Read on.

But, AirAmerica Radio need not worry. No one will show up here but a few gun rights militants. That is part of the lesson.

A few minutes of transcript with observations follow.

More discussion on the "right to keep and bear arms" follow that.

I had to hear the Vincent Bugliosi interview on C-Span over the weekend ( Nov. 4) to expand on some of the points. See for more Bugliosi.

[A Few Minute of Transcript]
[More on a Right to Keep and Bear Arms]

Dear Lionel Show:

I shouldn't have to go to federal court to find even the smallest possibility of an audience for the most vital and fundamental issues of political life. The courts are not the proper place for public discourse, but that is what is happening there.
Regardless, the courts have not yet gotten at what is really at stake.

False consciousness is pervasive. There is no more explicit example than what is found right here on what calls itself "progressive talk radio":

The issue is an individual right to be privately armed outside of any military or militia context. The immediate claim is for a right of armed self-defense. The way citizens, gun owners and nongun owners alike, defend themselves against the lawless in political community is to apply legal categories of gun ownership against the lawless. There is no conflict between gun ownership for self-defense and accountability to a governing authority that makes and enforces laws. The reason there has to be a claim for an individual right for armed self-defense is because the gun lobby strenuously and very successfully defeats any laws or policies that might apply against the lawless because the lawless would also include the NRA's "armed populace at large", the NRA's "armed citizen guerrillas", and others with anarchic and insurrectionist fantasies. None of this has any relevance to the Constitution or the Bill of Rights. The original militia institution and concept were all about conscription.

There has been a long patient struggle for gun rights, both for self-defense against each other and against the same government the gun rights militants want to secure the right. After they lost in US v. Francis J. Warin in 1976, the gun rights/libertarian militants retreated to formulate their anarchic, insurrectionist doctrine. They found a weak link in the law journals. Many reputable scholars publish in law journals, but law journals notoriously have no standards. They will publish anything. The enormous volume of law journal pseudoscholarship is now making its way into federal court through politically appointed, highly ideologically motivated federal judges. Who the judges are and how they got there are as much an area for public vigilance as the drive that motivates the anarchic doctrine.

The first case was US v. Timothy Joe Emerson in 1999. I filed an amicus curiae brief in Emerson in which the relationship between citizen and state was the main argument.
I thought at the time Emerson would be when we get serious. It did not happen. The district court opinion was written by an adolescent law clerk not Judge Cummins. Judge Garwood who wrote for the US Court of Appeals Fifth Circuit did not read the amicus briefs and address the issues. He was more concerned to throw a political sop to the gun lobby's "children of [anarchic] darkness"; but, nevertheless, the law clerk's arguments failed. The gun rights militants did not get what they want. After 80 pages of gratuitous obiter dicta quoting gun lobby pseudoscholarship, poor Emerson was sent back to the district court for trial and eventually convicted. Judge Garwood's politically motivated opinion (2001) received remarkably little attention.

The most ubiquitous words to prove an individual right to be privately armed outside of any militia or military context are "the advantage of being armed" from James Madison's Federalist Paper No. 46. These are the most frequently quoted words from the Federalist Papers printed in the NRA's most reliable asset, the one the NRA calls the "rabidly antigun" Washington Post. The words in context do not support the gun rights claim. Judge Garwood cited Madison but then got downright comical. A favorite citation is "bear arms in a coat" from Noah Webster's dictionary (published forty years after Ratification). The words are read to mean "bear arms in a coat [pocket]" when the meaning is "bear arms in a coat [of arms]." It is on this kind of comical fabrication that we will dissolve law and government and institute anarchy. This is not the sort of definitional invention that we have learned about on AirAmerica Radio.

The other cases listed have been argued with mixed results. We now have Parker et al. v. DC Gov. I filed an amicus brief in Parker in 2006.
The fundamental issue of the relationship between citizen and state has still not been addressed by the courts. The politically appointed, highly ideologically motivated Judge Silberman may truly believe but his purpose was again to throw a demagogic sop to the gun lobby. This is about Libertarian Right constituency building. What is most interesting is that the gun rights advocates did not get what they want this time either. The NRA fought very hard to sabotage Parker.
The NRA scams its members to achieve a civil right that cannot be achieved under any viable concept of constitutional government. The NRA does not want gun rights cases in federal court. Federal judges do not stand for popular election. They cannot be intimidated with demagoguery. Even the few politically appointed flakes who get through do not give the gun rights militants what they want.

Parker is now on appeal to the Supreme Court as DC Gov. v. Heller (case no. 07-290). I will file an amicus brief to the Supreme Court if the Supreme Court takes the case. This will not be a tangential, eccentric effort. The brief will be reviewed by history, legal and political scholars.

The big question becomes now, How politicized has become the Supreme Court? Is Bugliosi's denunciation of the Supreme Court's political ruling in Bush v. Gore as a crime deserving of jail time to be followed by the Supreme Court unraveling the most fundamental concepts any constitutional order has to be built on? And will, as Bugliosi laments, they get away with it again thanks to the bankruptcy of the politicians, the dereliction of our shallow, lazy news organs, and the failed consciousness at AirAmerican Radio? If the Supreme Court gets it right, it will embrace the arguments I file. Anything else will be evasive of any substantive issue or will be another perverse political ruling that will poison the life of the Republic for a generation— all in the interest of furthering an anarchic ideology and a partisan political agenda. What comes out of the Supreme Court, however, will depend on whether or not there is an enlightened, vigilant citizenry. The gun rights/libertarian militants are active and energized. Everyone else is non compos mentis. This is not about the Constitution. This is about politics. Where is AirAmerica Radio?

Getting seriously political is not easy on AirAmerica Radio or anywhere else. The Tavis Smiley Group hosted Republican candidates for president at its Forum, September 27. I worked all summer to try get the Tavis Smiley Group to ask the candidates the pair of questions that change everything in the present political culture. The questions could not be more simple and conventional:

The Smiley Forum was less than a week after the NRA's conference on September 21 with some of the same players. It could have been an interesting evening. I had sent the same questions to the Atlanta Journal Constitution's Cynthia Tucker as early as April. She turn out to be one of the panelists. She was updated again in September. If the group in society who are suffering the collateral damage in a larger political struggle cannot lead on a policy failure that has a devastating impact on their community, that group cannot expect anyone else to lead or care. The big city mayors have not asked the question either. The victims of gun violence are, in the Ralph Ellison sense, invisible to the larger political culture. Many lives and whole communities are at risk. No one else does care. That includes AirAmerica Radio.

What is most important in Parker is that Judge Silberman's conclusions are not just the makings of a firearms policy, but those makings are a devastating repudiation of the gun lobby's core doctrine that the purpose of all those guns in private hands— outside of not just any military or militia purpose but also outside of the law, outside of the knowledge and reach of government, outside of any regulatory authority— is to maintain a balance of power between a privately armed populace and any and all government. Its right is a right in the State of Nature, which is the state of anarchy, before there is law and government. The NRA has argued to the Supreme Court with no success for the militia as the "armed populace at large",
The "armed populace at large" is a collection of sovereign individuals who made a treaty not a government, .
The "armed populace at large" is the essence of the libertarian fantasy, apparently subscribed to across the political spectrum including AirAmerica Radio, that law and government can be dispensed with. The fantasy is that it is a viable concept. The libertarian fantasy is not just about guns it is about the political economy of capitalism.

Judge Silberman wants to find a civil right outside of any militia or military context but in the end falls back on registration for militia call up. Just as poor Emerson's individual right became meaningles when he was sent back to the district court for trial, the individual right the gun lobby wants became meaningless in Judge Silberman's conclusions.

Judge Silberman might actually have read my amicus brief in Parker and in the end realized that he is under oath of public office: There is a difference between Civil Society and the State of Nature and there are serious implications for citizenship in Civil Society. It is not just their guns that can be called up for a compelling state purpose but their republican bodies.

Of the Republican candidates, Ron Paul is the only one who would reflexively and unabashedly repudiate Judge Silberman's conclusions. AirAmerica Radio can take its share of responsibility that public knowledge is such that the others would be befuddled and embarrassed by the question. We have a year to go in this election season. Will anything change? Can we get seriously political?

I know there are lawyers who have taken my arguments to the DC government and told them to abandon their absurd gun control law and formulate a firearms policy that makes sense and no one can take credible constitutional issue with. DC could then advocate its local policy as a national policy. In Parker, Judge Silberman has given the opportunity. Registration is one point of policy the "armed populace at large" doctrine cannot accommodate. It means accommodating to a governing authority. It is that one "reasonable restriction" by which firearms ownership and use can be effectively regulated. It is what the gun lobby, starting with the NRA, fights hardest to prevent. All this is very far removed from public knowledge and consciousness. Any effort to expand the discussion on the most vital and fundamental issues of political life encounters hostility. AirAmerica Radio is no different.

The libertarian fantasy is the anarchic ideology that sets the gun lobby's agenda, but the gun vote is not about guns. It is about controlling political outcomes in a much larger political struggle. The struggle is over the modern state, the modern state social contract, the New Deal Constitutional revolution, the mixed economy, Keynesian economics versus Chicago School free market utopian economics. There is an introduction on how the demagoguery works at
This is an internal AFL-CIO memorandum. It is not part of the labor organizations' public arguments.

David Harvey writes in A Brief History of Neoliberalism, p. 41:

and on pp. 183-4:

We hear much about "freedom" from the NRA and the Bush Administration. It is called engineering consent. AirAmerica Radio is none the wiser.

A wiser organ of public enlightenment might provide some context. The United States in the twentieth century underwent at least five transformation of constitutional proportions, trans.
The United States became a modern state capable of managing an industrial economy, guaranteeing liberty and justice for all, and performing on the world stage as a great power. All involved expansions of federal authority. The political cynicism of hard right ideologies (the Libertarian Right) on sweeping ideological principles not merit or need will dismantle all of these in the name of libertarian political cynicism and Chicago School/Ludwig von Mises/Friedrich Hayek/Austrian School/Milton Friedman libertarian utopian economics. See
"The Courts and the New Deal"
for some Libertarian Right constitutional analysis. There is even mention of Second Amendment rights. The same horror of a governing authority that governs capitalism is the horror that governs guns.

Can we talk about this? Do the rule of law, the state's monopoly on violence and the state's internal sovereignty all mean the same thing? Does republican civic obligation include a coerced military obligation to serve the community. We can argue the merits of the modern state policies and programs but the question is, Will the political appointees on the Supreme Court to further a Libertarian Right policy agenda now throw another political sop to the gun vote and in the process throw out the constitutional state baby with the modern state bath water? Or, will the Supreme Court go to the other libertarian extreme and embrace statist authoritarianism (see Harvey p. 36-38). Justices Alito and Roberts were screened by the Bush Admnistration for their willingness to protect its usurpations of executive power. Is there some conflict here with the gun rights electoral constituency? This is serious business. What constitutional ground do we stand on? Instead of serious attention AirAmerica Radio gives us "The Lionel Show".

We can get more of the larger perspective on the present struggle over the political economy of capitalism in Naomi Klein's The Shock Doctrine (released summer 2007). The struggle over the modern state has been most explicit and vicious outside of the developed industrial democracies. An early laboratory was Chile in the 1970s. The developmental economics which is the Third World version of managed capitalism is denounced by the Chicago School utopians as "socialist" and "statist". Isn't it interesting that those are the exact same words the gun rights militants use to denounce gun regulations. The contradictions are staggering. In order to impose the "freedom" of the market in places like Chile, Argentina and many others, it is necessary to implement torture, terror and police state repression of exactly the sort the gun rights militants need their unregulated guns to defend themselves against. Can we get any clarification here? Right wing ideologues have insisted throughout the twentieth century that to impose and maintain the workers utopia (Stalinist Russia) requires police state repression that the gun rights militants need their guns to resist. Well, we now know that utopian capitalism requires the same police state repression. Where are the NRA's "armed citizen guerrillas"?

If not AirAmerica Radio, then maybe G. Gordon Liddy can be some help. In his interview with Libertarian Party candidate Michael Badnarik, January 25, 2005, G. Gordon LIDDY, informed us:

Is this doctrine what AirAmerica Radio subscribes to? Can we get some clarification? The libertarian fantasy's political cynicism demands a permanent pre-revolutionary situation. The tyranny is the modern state, the social contract, the mixed economy, regulated capitalism— all of which are essential to a modern concept of nationhood in an industrial society— And, all of which AirAmerican Radio seems to be sympathetic to.

Liddy says nothing about the forty hour work week, the Fair Labor Standards Act of 1938, and US v. Darby (1941). Do his working stiff listeners remember that their grandfathers and great grandfather worked 70 hour weeks in sweatshops and coal mines. The forty hour work week, Federal Reserve, national conscription are not enumerated in the Constitution. Do we take up arms or is this all a childish political fantasy with enormous collateral damage?

While a big supporter of Second Amendment rights, Liddy is also a big supporter of military service and martial virtues without any appreciation that national conscription, nowhere enumerated in the Constitution, is part of the twentieth century social contract. It is a coerced "social solidarity" (See David Harvey, p. 23). On one side, there is only the most tenuous accommodation to a governing authority in Civil Society; on the other, complete surrender to military command. In his interview with Badnarik, Liddy mentioned nothing of conscription. There are no libertarian individual sovereigns in a conscript military organization, but there is a latent authoritarianism in Liddy's version of libertarianism.

We don't have to look very far to find the libertarian fantasy and its insurrectionist theory. Former Speaker of the House of Representatives (when he was Speaker), Newt Gingerich, wrote in To Renew America (1994, p. 202).

Yeah. Right. Is a "political right" a right in the State of Nature or a right secured by government in Civil Society. Is it a right in the Declaration of Independence, a charter for revolution, condemned by King George as treason, or a right consistent with what a constitution is?

Newt again before the NRA conference September 21, 2007:

Are these citizens citizens bound by law or are they individual sovereigns in the State of Nature which is the state of anarchy? Does this mean that we can at any time call in the loan and make armed revolution— that is, commit treason against the United States. Is the Constitution perverted? It defines treason as the waging of war (bearing of arms, mind you) against the United States and then secures a civil right to commit the same. Newt is as qualified as anyone else to file his brief to the Supreme Court. We don't want the Court to miss anything.

Is there an active constituency somewhere that can contradict this anarchic nonsense? We do have President Lincoln in his first Inaugural:

As tenuous as the Supreme Court is in our present circumstance, we also have this: The Supreme Court is not bound by its own precedents. v-9/
"Justices to consider gun case Nov. 9"
Wednesday, October 24th, 2007 12:04 pm That is, the Supreme Court could become a constitutional loose cannon to further an anarchic ideology and a partisan political agenda. Left up to AirAmerica Radio, the public will be completely uninformed and completely without vigilance.

Right wing ideologues spent millions sniffing around Bill Clinton's undershorts, to the extreme of an impeachment farse, to discredit a popular Democratic Party president and defeat any possibility he would impose a "socialist" agenda on America— that is, expand the twentieth century social contract. Horror of horrors!

This is all part of the same story. After the experience documented here, I will go back to listening to G. Gordon Liddy. Liddy is far more entertaining and relevant and with Liddy there are no expectations of truth and light.


[More on a Right to Keep and Bear Arms]

A few minutes of transcript from November 2, 2007:

L: Let's get ready to go. Gilbert has been calling every day this week and just driving (unintelligible) crazy talking about, you know, this ad. Its not an ad. I promised (unintelligible) I would take Gilbert's call and this is ventilation Friday.

That is, he will try to manage his contempt.

So Gilbert you are on the Lionel Show.

G: Hello. Am I on?

L: It depends. Do I fear you?

G: No. Can you hear me?

L: Yes. I will cheer you.

Already we have a silly jerk. The silliness and hostility are manifestations of something more troubling. He is afraid of the subject. I did sit in the queue for two full programs to get on the air.

G: You talk about an ad about the Supreme Court and the Second Amendment. You must know there is a case on appeal to the Supreme Court.

L: We talked about it.

G: I am not clear from your comments what message your trying to convey as to whether this is something we have to live with or whether there is something else going on there.

L: Whether live with what?

G: Well, with an opinion that comes of the Supreme Court.

L: We have to live with opinions that come out of the Supreme Court. Yes, I do.

G: But, can we stand in judgement of them. Now, if the case is a very interesting case. If you read the appeals court opinion that came out last March. Judge Silberman who is basically a rightwing hack fabricated the business of an individual right...

L: Well, there are two cases from two different circuits.

G: There are about half a dozen.

L: But, this is based on conflicted jurisdiction and the Supreme Court is going to answer the case whether the Second Amendment actually where they talk about the well-regulated militia and their right to bear arms. They are going to decide what is the Second Amendment about. Do we have an individual right to bear arms or is it some how contingent upon a militia? For the first time the Supreme Court— so listen, so people will understand— for the first time they are addressing this. It is a very critical issue.

G: I understand.

L: But, our listeners might not. So you and I can have this inside chat. I want to rest of the world to know what we are talking about.

G: All right. Okay. You know there is a whole lot of explanation that could go in to this.

This is "progressive talk radio", but enlightened public discourse goes all downhill from here. The loud obnoxious mouth apparently subscribes to the gun lobby "armed populace at large" fantasy and will not allow any challenges. Do he and AirAmerica Radio also subscribe to the policy agenda to dismantle the modern state? Do they understand the world they live in?

If the didactic mouth wants to instruct us on constitutional doctrine he has much more to explain. He might conduct a much needed national civics lesson. But, more to the point, Judge Silberman raises more questions than he answers. There are many shades of meaning and conflicted interpretations in constitutional doctrine. Is the Second Amendment incorporated into Fourteenth Amendment protection as a fundamental right? In fn13 Silberman says incorporation does not apply. What does apply? The constitutional hack, Judge Silberman, doesn't explain. Can AirAmerica Radio's constitutional hack help us out with this? Is there any basis for an individual right other than Fourteenth Amendment incorporation?

Well, is there? Hard right ideologies have not accepted the expansion of federal authority under the Fourteenth Amendment to incorporate selectively any other articles in the Bill of Rights. The Second Amendment has not been selected. If private gun ownership is a fundamental right— that is, incorporated under the Fourteenth Amendment— any law that abridges or infringes on it is subject to strict scrutiny by the courts. That is, the law has to serve a compelling state purpose. Well, has Judge Silberman subjected the DC gun law to strict scrutiny? Judge Silberman apparently thinks registration for militia call up— mind you, completely consistent with original design and intent as manifest in the Militia Act of 1792— serves a compelling state purpose. As the gun rights militants celebrate the advance of their Second Amendment rights in the courts, it has not, shall we say, registered on them yet that Judge Silberman did not give them what they want. The very mention of registration— that is, governing— in gun rights circles provokes frothing-at-the-mouth hysteria. See
for some hysteria. The gun lobby, led by the NRA, will fight viciously any attempts to implement Judge Silberman's conclusions. Where is AirAmerica Radio's loud, obnoxious mouth on this? Where is AirAmerica Radio?

Furthermore, if gun ownership is a fundamental right, in present constitutional doctrine, it cannot be taxed— that is, financially burdened. Judge Silberman says nothing about the constitutionality of the National Firearms Act of 1934, which heavily taxes certain arms. The NRA's "armed populace at large" and "armed citizen guerrillas" can only legally have these arms with a federal permit— that is, obedience to a law. Will the NRA send its "armed citizen guerrillas" into suicidal battle against tanks and napalm air strikes with handguns and hunting rifles. Or, will it be enough that they simply run out into the streets, brandish their weapons, and big bad government will run away? The Libertarian Party Platform wants the National Firearms Act repealed. What does the NRA want? What does "progressive talk radio" want?

The constitutional trick may be limited government. Justice Alito has already made known that the National Firearms Act was an overextension of federal authority. 71.DTL
Justices Thomas and Scalia seem to be of the same opinion. The individual right in these justices' thoughts is simply a restriction on the Federal Government to regulate not a protection against the powers of the state governments to regulate through Fourteenth Amendment incorporation.

The real abomination in Libertarian Right ideologies is a Federal Government which governs. The expanded powers of the Federal Government in the twentieth century are the modern state, the social contract, and governing in national interests and for national purposes. Let's make machine guns and handgrenades on sweeping ideological principals a representative policy issue. Let's turn federal controls back to the states. If only one state allows unrestricted access to machine guns, sawed-off shotguns, hand grenades, heavy artillery, etc., that one state will become a spigot for heavy duty lethal weapons to the whole country. If Alito prevails with his earlier opinion, the Supreme Court truly becomes a constitutional loose cannon and the Constitution truly becomes a suicide pact— all to further a malignant ideology and a partisan political agenda.

Short of a fundamental right, does the right to gun ownership enjoy procedural protection? In Bell v. Burson (1971), Murdock v. Pennsylvania (1943), and Cox v. New Hampshire (1941) the Supreme Court mulled over licensing fees and appeals procedures. The opinions are not very clear— at least not to me. Can we get some more explanation from AirAmerica's constitutional hack? The real question is, Are we to start applying issues and language like "content," "prior restraint," "narrow, objective, definite standards", "narrowly taylored," "financially burdened" to private gun ownership? Is this what we want, to have the courts spend decades sorting out and arguing over these words and concepts as they apply to private gun ownership? And, really how do these words and concepts comport with militia inventories and registration for militia call up? It was a financial burden— that is, a form of tax— that the militiamen were required to provide there own weapons. The militiamen constantly clamored for the state or federal government to provide their weapons. The coerced republican military obligation, whether state or federal, was, nevertheless, much more than a simple financial burden.

In Burson, the Court decided, a license to operate a motor vehicle, once issued, may become essential to functioning in this society: Therefore, the issuing agency has to provide an appropriate appeals process if it revokes an operators permit. If carrying a gun has become essential to functioning in this society, then do we have law and government or some semblance of anarchy? Have we reverted to the State of Nature? Of course, in the State of Nature there is no "consent of the governed" therefore no "just powers" of government to secure any rights. We secure our own rights in a war of all against all.

L: That's what we do. It is called talk radio.

Yeah. Right. Who is this "we"? This is an "I" who loves the sound of himself.

G: Well, listen. Let me go through this individual right to be privately armed outside of any military or militia context.

L: Now, I take it you disagree with that.

G: No. The question is what Judge Silberman really comes up with.

L: Do you agree with that? Let me ask you a very simple question. Do you believe that the Second Amendment gives you the right to possess firearms.

Now on AirAmerica Radio, "progressive talk radio", we have it right from a page of the NRA's Members Guide (insert, American Rifleman, March 1991): "What we share is a belief in a right". Constitutional rights are no longer civil rights secured by the rulings of the courts and enforced by federal court orders but are now articles of faith like the Hereafter and the Divinity of Jesus. Does AirAmerica Radio now conduct Inquisitions? Does AirAmerica Radio torture Infidels?

Bugliosi says keep it simple. Spoon feed the jury. The jury here is the people. So let ME ask a very simple question. This is same question rephrased three different ways:

Is the Constitution a Frame of Government or a treaty among sovereign individuals?

Are citizens citizens under law and government or individual sovereigns in the State of Nature which is the state of anarchy?

Is there a difference between the State of Nature and Civil Society (in the original Lockean sense that the Framers understood)?

The most vital and fundamental issue of political life are very far removed from public consciousness. If we cannot ask and answer the question we survive politically only by force of habit and then only temporarily until a real crisis explodes all social and political relationships.

G: It think it is an irrelevant question. Here let me read, this is at the end of his opinion. He goes through fifty pages of fabrication of an individual right but on page 54 he— you can find this on the internet. It is Parker et al v. ....

L: May I ask you. You are just destroying this program. May I ask you what you think the judge...Please don't read. What do you think? What does Gilbert think. Tell me about you. What do you say?

As AirAmerica Radio self-destructs, it will take the Constitution with it. An enlightened citizenry that is capable of self-government is thoughtful, deliberative, and vigilant. It reads, studies, and judges the opinions of the courts especially when they are political opinions and not legal or constitutional. It dismisses intolerant, raving blowhards.

G: Well, I say there is no individual right to be privately armed outside of a military or militia context and neither does Judge Silberman if you read the ...

L: Okay fine I don't care about Judge Silberman. Tell me what you think.

What we have now resembles the gun lobby's demagogic appeal to the gallery.

The transcript does not convey the decidedly hostile tone. The style and posture are of a bully. Bullies are insecure and scared. What is our grandiose air waves bully afraid of? What is his real agenda? What is AirAmerica Radio's real agenda? The gun rights militants are afraid of something: the dark ominous cloud of the new world order coming over the horizon. Am I on "progressive talk radio" or am I talking to my favorite raving demagogues Michael Savage and David Horowitz who regard anyone who thinks a little differently from them as a totalitarian Stalinist. Horowitz should know. He grew up in a Stalinist household. What kind of household did AirAmerica Radio's grandiose mouth grow up in?

The state of political consciousness is that the Libertarian Right's anarchic ideology has a subscriber and a promoter right here on AirAmeria Radio.

G: Because the whole Second Amendment, the militia clauses in the Constitution, the American State Papers, the Federalist Papers, the Second Amendment and the militia were all about conscription. There are no individual rights of the kind that are sought.

See further discussion below

Regardless, the raving barbarians's only purpose is to offend. There really is a problem here.

L: Well, the Supreme Court is going to decide and I tend to disagree with you. [at about this point GEErnst was disconnected. AirAmerica's air waves barbarian could go off on his rant without question or contradiction. "It is called talk radio". That is what they do.] I do believe you have a right to possess a firearm to an extent. I don't think the Constitution has to enumerate that right. You also have a right to own a TV though it is unenumerated. However, can there be reasonable regulations. Of course, I mean that this case is not as clear as you think. That is why for the first time the Supreme Court is going to be answering this once and for all because the Second Amendment is not what you read. It is what the Supreme Court interprets it to mean.

"Not as clear as you think". What I think and any other enlightenment was blocked out. What does our grandiose mouth think of what Judge Silberman thinks? He seems to share Silberman's opinion. Has he read Judge Silberman's opinion? Does he want anyone else to read it. Can he tell us about it? Or, is he an advocated the gun lobby's childish political fantasy? Can he even tell the difference? This is the style of demagogue, to falsely polarize an issue with a false assumption and a false strawman argument then trample on the strawman. In pursuit of what larger purpose other than self-ego aggrandizement, I know not.

The libertarian fantasy's latent authoritarianism, however, begins to surface. Will the raving air waves browhard tell the Religious Right that they have to accept and live with Roe v. Wade? They have been struggling to undo that ruling for more than 30 years. Have they lost all rights of citizenship to engage in political activism? Do they have to surrender their consciences and their thought processes? Or, do they take their instructions from Liddy and take up arms?

Will the raving air waves blowhard tell Vincent Bugliosi to shut up. He has no right to an opinion. He must accept the Supreme Court's "criminal" interference in politics that in his mind is worthy of jail time? Does Bugliosi have to acquiesce when the Supreme Court leads the unconscious people, as sheep, to constitutional slaughter?

Will the raving air waves blowhard tell us that whatever we hear on "progressive talk radio" is absolute truth and we must surrender our minds, and our consciences and obey even as constitutional government becomes stripped of its legitimacy to further an anarchic political fantasy.

Are we allowed to apply our thought processes to some nonsense about a "civil right" to own a television set? A legislature can prohibit, confiscate, requisition and/or regulate and tax out of existence any commodity it wants. In the case of a television set the courts might find a latent First Amendment right. If it is a constitutionally protected right to broadcast on the public airwaves then there might be construed a civil right to own the television set to receive the signal. Few commodities would be eligible for that kind of protection. Of course, any legislators which implemented such an absurdity would be voted out of office long before the issue came before the courts. There is more than one restraint on sovereignty.

The Eighteenth Amendment did not outlaw alcoholic spirits, a consumer commodity. It gave the federal government the authority to outlaw and severely regulate alcoholic spirits. The law was the Volstead Act. Most states already were dry in 1919 without any objections from the courts, state or federal. There are probably a few dry local jurisdictions in the country even now without any objections from the courts.

In 1933 the United States went off the gold standard. Gold became no longer money but an ordinary commodity. The federal government then outlawed and confiscated private holdings of gold without any objections from the courts.

There are other examples, but we need not belabor the point.

But, let's make this interesting. Let's take the comparison of guns and television sets a step further. If by original design and intent, the "just powers" of government can require gun ownership and put guns on inventories for militia call up, a compelling state purpose, as Judge Silberman seems to say, then can the "just powers" of government require television ownership and put them on inventories for state propaganda purposes? Can in the spirit of Orwell's 1984 the "just powers" of government require a television in every house, like a gun in every house in the Militia Act of 1792, that it be on an inventory, and that it be turned on 24/7 to receive state propaganda and summonses to militia muster? Let's make it a two way television. We the people see and hear the propaganda all day and the state sees and hears our every private action. Even the gun lobby's own pseudoscholars concede, when they are being intellectually honest, that, by original design and intent, there was no privacy right in gun ownership as the gun lobby proclaims today. The original coerced civic obligation of militia duty was transformed and resurrected in the twentieth century Selective Service Acts. Armed forces personnel are subject to the code of military justice not the Bill of Rights. During the Second World War they were prohibited even from wearing civilian clothing. The malignancy of government controlled their private lives as G. Gordon Liddy would have it today.

The rant then goes from the NRA's "belief" in a right to John Ashcroft's, Judge Garwood's, and Judge Silberman's "reasonable restrictions". If the right is a right in the State of Nature, there are no reasonable restrictions because there is no "consent of the governed" and therefore no "just powers" of government to regulate or reasonably restrict anything. What is reasonable to one person is a police state to another. Any and all government becomes a police state. Maybe our grandiose constitutional hack, or maybe just AirAmerica Radio, will file his (or its) own brief to the Supreme Court and explain to the court the validity of Judge Silberman's reasonable restrictions which it would appear are consistent with our air waves constitutional hack's own reasonable restrictions. Then we can hear AirAmerica Radio start advocating what the DC government has not, a national firearms policy that makes sense and to which there can be no constitutional objections. But, of course, AirAmerica Radio will need to be well-armed for self-defense against the gun rights militants. They would not disappear quietly. The bankrupt Democratic Party can suffer the shame of its dereliction and failed leadership. The Republican Party and its candidates can take the hindmost. Everything political will change. The life of the Republic could not be better served.

In the meantime, could AirAmerica Radio, which calls itself "progressive talk radio", please explain what civic values it seeks to promote, what policies it seeks to advocate, what civic purposes and functions it seeks to further, when in gives a mouthpiece to this ignorant, intolerant, thoroughly obnoxious, constitutionally absurd, intellectually primitive, politically unconscious air waves blowhard? When I listen to Michael Savage, Bill O'Reilly, and David Horowitz I know better than to be deceived— and, of course, we have not heard from any of them on Judge Silberman's conclusions either.

A Few Minute of Transcript

More on the Right of the People to Keep and Bear Arms:

The most common political form in history has not been the nation state but empire whether the Persian, Greek, Egyptian, Roman Empires of the ancient world or, in more recent times in Europe, the Austro-Hungarian Empire, Ottoman Empire and Tsarist Empire plus numerous colonial empires and the Soviet Union. Empires maintained their control with mercenary armies and in some cases, when they pretend to be nation states, much resented Draconian conscription in service to an alien political power.

Modern struggles for national sovereignty against the historically recent empires in Europe began with the Greeks against the Ottomans in the 1820s and continued up to the First World War in the aftermath of which the empires fell apart or were broken up. National sovereignty meant that a given national community maintained its own military force comprised of its own citizens. The right of the people was the republican right of the people to participate in the military functions of the state as conscript citizen soldiers rather than leave those functions up to an alien mercenary military force. It was a communitarian right with civic obligations not a libertarian right, as proclaimed today, of unrestricted yahoo individualists. It was the same basic concept in the politically independent Greek and Roman city states in the ancient world as in modern nation states. The city states succumbed to the empires. Modern nation states in contrast liberated themselves from the empires. The gun lobby completely confuses the distinction between a communitarian and a libertarian right to further a malignant view of social and political life. Gun rights today have more to do with furthering a domestic policy agenda to dismantle the modern state social contract than with original design and intent. See Harvey's thoughts on freedom above.

The creation of nation states in Europe had only limited success and nation states were usually not purely ethnically national. With the break up of empires in Central and Eastern Europe, which maintained some semblance of order, Hitler and Stalin killed millions, but the millions also killed each other in ethnic strife. See Niall Ferguson's The War of the World (2005) and also Adam Lebor, "Human, all too Human," What is interesting in the present discussion is that these same ethnic groups came to the United States and lived side by side both in urban neighborhoods and in rural and small town communities in the heartland. They often retained their native languages at least for a generation, but they were not at war with each other. Why is that? First, they had to survive in a new environment. Secondly, they gave up their blood and soil identities and in time gave up there languages. They became Americans. Thirdly and very importantly, there was a sovereign authority that maintained, adequately enough, the rule of law and the state's internal sovereignty.

If the Supreme Court becomes a loose constitutional cannon with a political agenda that weakens a viable concept of nationhood and internal sovereignty, do we go the way of the Austro-Hungarian Empire? If the right in Judge Silberman's and Judge Garwood's opinion is individual, is it also a group right? Do we have the Ku Klux Klan squaring off against the National of Islam's security forces? They each have, after all, in this malignant agenda a right of armed self-defense. Do we all have to find our security not by pledging allegiance to the Flag and to the Republic for which it stands but to hostile sides in organized crime protection rackets and street gang turf wars. Where will AirAmerica Radio and its air waves blowhard take us with this?

Can we take this back to the original American context where militia duty was conscript duty. The state militias were republican institutions with a coerced civic obligation. Madison said in the Virginia ratification debates: "A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all." Madison also wrote in Federalist Paper No. 51: "you must first enable the government to control the governed; and in the next place oblige it to control itself". Would someone tell the NRA, AirAmerica Radio and its air waves blowhard that the militiamen and their privately owned weapons were controlled on the militia inventory.

Then there was the US Army, which, as created in the Constitution, was modeled explicitly after the mercenary British Army recently defeated in the Revolution. The British Army was an army of empire. Its function throughout the eighteenth and nineteenth centuries more closely resemble the function of the French Foreign Legion than a national force. In England, there had always been conscription into local militias and into the posse comitatus, but there was no national conscription into the British Army until 1915. In Great Britain there is a Royal Navy, a Royal Marines, a Royal Air Force, a Royal Keeper of the Apes, but since the seventeenth century the king's army had always been suspect. There is no Royal Army.

In the fall of 1776 when the Continental Congress needed a code of military justice for the Continental Army it took the British Army code verbatim. It is the same code with minor modifications which the US armed forces use today. The conscript militia died a natural death in the early Republic because no one wanted it and, unlike in the British Constitution, it served no theoretical purpose as a constitutional balance against the Crown. The concept of a coerced military obligation was transformed and resurrected in the twentieth century Selective Service Acts. There was nothing in them for sovereign individuals. The US Army (which includes the National Guard) became a national militia and the United States became a national republic— that is, a modern nation state with republican military obligation. That was not well defined before about 1910 and a whole lot less before 1860. The civic obligation parallels the modern state social contract. National conscription was just one of the five fundamental transformations of the United States in the twentieth century that the Libertarian Right's political cynicism has great difficulty with.

National sovereignty also implied the obligation of a national state to rely on its own citizens for its military force. One of the strongest adherents to the gun lobby's armed populace doctrine today, however, is Soldier of Fortune (i.e., mercenary) magazine. The Founding generation certainly understood the concept of private armed contractors. They deputized private vessels to perform naval functions. They were called privateers. The authorization was called a Letter of Marque and Reprisal. The practice was banned by international treaty in the 1850s. Privateers may have docked at domestic ports but their functions were strictly offshore. The Founding Generation would have been horrified by the prospect of mercenary contractors in a local community. The US Army was then to be composed of voluntarily enlisted mercenaries, little different in public perception from private contractors. The militia right (and also the Third Amendment and the two year limit on military authorization clause) was guaranteed in the Constitution as a protection against exactly that kind of possibility. The Second Amendment is cryptically worded because the relationship of the state based militia force, which politically the Federalists could not eliminate, to the supreme law of the land in the Constitution was then controversial. The Framers and Ratifiers left it up to the deliberations of time, experience and an enlightened citizenry to work out the controversy. We have failed them. AirAmerica Radio has failed them. AirAmerica Radio and its air waves blowhard will block out any enlightenment. In the end, the original controversy was one that history forgot. What is resurrected now, in a hundred fallacious law journal articles, is preposterous. If the NRA were really concerned with the constituition and original design and intent, it would be howling loudest against private military contractors as opposed to reliance on a conscript militia or military obligation. Jeremy Scahill has provided the recent reporting on Blackwater private military contractors some of whom were seen on the streets of News Orleans after hurricane Katrina.

The New Deal Constitutional Revolution, Blackwater contractors, the loose political cannons on the Supreme Court, the impeachment of President Clinton, the gun rights agenda, Judge Silberman's conclusions in Parker are all part of the same story. We don't get the story from the Tavis Smiley Group, the "rabidly antigun" Washington Post, NPR's Diane Rehm, CBS News, or AirAmerica Radio. Failed political consciousness has plenty of company. Nevertheless, there is history to be made.