The Potowmack Institute

The Gun Lobby's Problem

G. Eyclesheimer Ernst

(Refused publication by the Baltimore Sun, submitted May 31, 1995. No response.)

For a recent prespective on the NRA's problem from the John Birch Society see The NRA's Gun Control Schizophrenia, by William F. Jasper, The New American, June 5, 2000.

I am a gun owner. I have owned guns all my life. Although I have not been a member for years, I grew up in National Rifle Association programs.

By listening to the NRA now, following news reports, and examining the gun lobby's source material, I have to conclude the NRA has a problem.

What motivates the NRA leadership is a doctrine of political liberty. The problem is the doctrine has no validity.

The doctrine is not difficult to find. In the aftermath of the Tiananmen Square tragedy, Sue Wimmershoff-Caplan, a member of the NRA's National Board, wrote in "The Founders and the AK-47," Washington Post, July 6, 1989: "Twentieth Century military machines are far from invincible when outflanked by armed citizen guerrillas." The NRA isn't worried about the military machine of the People's Republic of China. The NRA wants to outflank this government.

Wimmershoff-Caplan expresses what the NRA reads into the Second Amendment which is the right of private individuals to keep and bear arms as a "barrier" against tyrannical government. These privately armed individuals are called the "sedentary militia." The purported individual right serves to maintain the sedentary militia. To perform its function the sedentary militia has to be armed outside of accountability to public authority.

The problem with the doctrine is that the courts have thoroughly rejected it. The most comprehensive Second Amendment case is US v. Francis J. Warin (1976), US Court of Appeals, Sixth Circuit. The Second Amendment Foundation's amicus curiae brief in the Warin case is a reasoned formulation of the gun lobby's doctrine. Presaging Wimmmershoff-Caplan, the brief contains the more explicit statement, "What Amicus asserts is a basic right of freemen to take up arms to defeat an oppressive government." The Warin case judges explicitly rejected individual right claims, Ninth Amendment unenumerated right claims, and legal status for the sedentary militia.

The judges went on to explain that even fundamental First Amendment rights are not absolute. They pointed out that in Cox v. New Hampshire (1941) the Supreme Court upheld a parade permit law reasoning, "Civil liberties, as guaranteed by the Constitution imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses." If the Supreme Court holds constitutional a law regulating peaceable assemble, it is not going to strike down a law regulating assembly under arms. The Supreme Court let the Warin ruling stand.

The NRA leadership gets around its constitutional problem by declaring a victory, which few vigorously contradict, and has its doctrine anyway by defeating legislation. To defeat legislation the NRA leadership has to win the votes of gun owners, who are always "loyal" and "law-abiding." To win the votes of gun owners it has to gain respectability for its doctrine by putting over the other major fraud that the Framers of the Constitution intended an individual right.

The most commonly quoted words to prove the Framers' intent are ". . . the advantage of being armed. . ." from James Madison's Federalist Paper No. 46. In his recent book, Guns, Crime, and Freedom, the NRA's Executive Vice President Wayne LaPierre quotes these words out of context twice (p. 8, 17). He lists 32 law review articles to prove his individual right case. Of the 24 articles I have consulted, 13 quote these words out of context. The typical distortion is in the NRA Member Guide (American Rifleman, March, 1991): "Alluding to 'the advantage of being armed which the Americans possess over the people of almost every other nation,' James Madison adamantly defended the individual right. . ." Well, not exactly.

The Federalist Papers were written in 1787-88 to argue for ratification of the Constitution to which there was strident opposition. Madison wrote: "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed forms a barrier [!] against the enterprises of [federal] ambition." In context the militia was the armed force of state government. Madison's "barrier" was a balance of power between state and federal government not "armed citizen guerrillas" and any and all government.

To defeat legislation, the frauds are not enough. To win the votes of gun owners gun lobby strategists have to appeal to individual self-interest. One persuasive appeal is self-defense. Though widely received, the appeal is irrational.

Rules and regulations are not a ban in which only outlaws have guns; and, if all citizens are armed for self-defense with no rules and regulations to disarm the lawless, the insecurity becomes absolute. The armed predators will simply ambush their victims.

Maintaining respectability to defeat legislation is a big part of the strategy and has caused the NRA leadership internal turmoil. Citizen militias are the "sedentary militia" the gun lobby seeks to maintain, but they are not respectable. LaPierre, whose book expresses latent hostility to public authority, has repudiated the citizen militias. The NRA rank and file, as reported from its recent convention, echo the repudiation, but the real issues have not been put to them. The reports quote NRA members as proclaiming their law-abiding disposition and their desire to make laws not break laws.

Bringing gun ownership under the rule of law is the true test of NRA members' law-abiding commitments and makes the gun lobby's doctrine the issue. Bringing gun ownership under the rule of law requires accountability to public authority— that is, specifically, registration of ownership. Accountability of ownership is the one point the gun lobby's doctrine cannot accommodate. No accountability means no rules and regulations. To be armed outside of the law is, at best, a politically childish inability, which can be found in many unthinking gun owners, to accommodate to public authority; but, at worst, it provides support for malignant conspiracy theories and private armies.

Private armies are a threat to the rule of law and the viability of democratic constitutional government, but at present the real killer is gun violence. Addressing gun violence is a matter of bring gun ownership under the rule of law. Consciousness on the gun lobby's doctrine and its problem can lead to an effective policy that even NRA rank and file can support.

A national firearms policy requiring the registration of ownership of all firearms and reporting of private sales would have the immediate objective of shutting down the illegal traffic in firearms so that local communities can set and enforce their own publicly agreed upon legal categories for loyal, law-abiding gun ownership.

Acceptance, if not advocacy, of this policy can be found ironically in LaPierre's law reviews. Don B. Kates, Jr., a prominent Second Amendment lawyer, writes, "Colonial and subsequent militia law required virtually every male of military age to appear periodically with his arms for inspection. Therefore, . . . [I] concluded that gun registration and licensing are not per se repugnant to the second amendment." Kates' intellectual honesty that the militiamen were armed for the state not against it is an abomination to gun lobby extremists.

National firearms policy proposed here would have to enjoy wide support and include a grace period with an amnestied buy-back to be effective. It could be financed through registration fees. Only the Federal Government can establish this policy. It is the only major function with regard to firearms the Federal Government need perform. The policy would establish a much needed clear mission for maligned federal authorities.

The Federal Government, however, cannot microregulate gun ownership. Licensing would be a local issue determined by local needs. Some states would do no more that comply with federal law. States could still guarantee a constitutional right under their state constitutions.

Registration is a policy gun owners can support because it is in our interest. My security as a gun owner is not clutching guns in fear but constructive participation in the political process. I petition my government to create legal categories for gun ownership that can disarm the lawless. That is among the first reasons we have a government. If there are objections that registration will enable tyrannical government to confiscate guns, the response has to be: We need to confiscate guns from the lawless and the disloyal and we want any confiscating to be conducted as authorized by law and not conducted by "armed citizen guerrillas" who may be the real tyrants.

The gun lobby's doctrine is its weakness and its problem. We can make the problem conspicuous in 1996 by asking presidential candidates, "Is there a principle of political liberty that prevents gun ownership from being brought under the rule of law?" A "yes" would invite follow-up questions that could put any public official in violation of his/her oath of office and thereby eligible for impeachment.

Many gun owners are as confused by the NRA leadership's posturing as everyone else. Raising consciousness on what "loyal" and "law-abiding" really mean can clarify the issue and provide the first step to winning support for a national policy whose purpose is to ensure domestic tranquility.

© Potowmack Institute