It's not about guns...

It's about citizenship


The Potowmack Institute
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http://www.potowmack.org/markKARS.html

June 20, 2016

Mark Kelly
American for Responsible Solutions
PO Box 15642
Washington, DC 20005

Dear Mark Kelly,

You do not have a monopoly on policy advocacy. There are other perspectives and serious proposals. And, as you say, enough is enough. Get real. This is serious business. It demands serious attention. This is where you become seriously political. If you want to make a difference, this where you have to become seriously political. When you fail miserably, you have to be held accountable if not now, then, if we have a future, by history. You seem to have no conscience about the damage you do. Your efforts are not just a foolish waste of time, but are counterproductive. The gun lobby's political fantasy is as childish as it is bloody. The bloody consequences are in the daily news. The gun lobby needs you to be successful. You play your assigned role.

The burden on you is to break out of control by the political powers which include the Obama Administration and find a independent policy objective that makes sense, is effective, will past constitutional muster, and be widely supported. It is ironically the gun rights militants who have proposed the credible policy. Follow their lead. See enclosures.
You ask for donations. I cannot support an endeavor that is so limited and fails so miserably. This not about trigger locks, waiting periods, background checks and other such foolishness that has failed to make a difference for fifty years. The Obama Administration's gun safety agenda is just an expanded version of the gun controllers' trigger lock agenda. Millions are spent on this foolishness. One definition of insanity is to continue doing the same thing over and over again expecting a different result. The gun rights militants, led by the National Rifle Association, know exact what they want and exactly what they are doing. They have been hard at work for 100 years. They will continue to defeat you at every juncture.

The sweep of modern political history over the past 500 years has been the subordination of feudal lords and barons and their private armies to central military command in nation states. There has been a parallel subordination of individual violence to the rule of law. We are in regression. Very simple policy objectives have very large implications. There is a much larger discussion that goes to the very heart of what constitutional government is. We cannot reduce the most vital and fundamental issues of political life to bumper sticker slogans and sound bite demagoguery. At that level the demagogues will always win. An enlightened citizenry capable of self-government has to be, in fact, enlightened.

A citizenry become enlightened when it knows what its opposition wants. Donald Trump says that if President Obama does "not use that term ["radical Islamic terrorism"] he will not solve the problem." Maybe so, but that is a different matter. More generally, if you do not know what your opposition wants you are dealing in your own illusions.
Here it is: What the gun rights militants want is what the NRA argued to the Supreme Court in Perpich (.../perp1990.pdf): A right to maintain the militia as the "armed populace at large", a collection of sovereign individuals who made a treaty not a government. It is a right that can never be had under any viable concept of constitutional government. The NRA was on the right side of the issue with regard to the National Guard. It was a nice try but the Supreme Court ignored the point about the militia that is, the "armed populace at large". The Supreme Court passed up the opportunity to repudiate the anarchic doctrine once and for all time.
The one point of policy the "armed populace at large" cannot accommodate is accountability to a governing authority, accountability to the very legitimacy of a governing authority. That is where the childish political fantasy is most explicitly manifest. Accountability means specifically registration. Registration is the only way guns can be effectively regulated. Registration starts at the point of acquisition. Registration is what the NRA works hardest to prevent. (.../parkappd.pdf, .../park2007.pdf) The constitutional authority for registration is right there in the militia clauses of the Constitution, the Second Amendment and the opinions of the courts. Militia duty in the colonial period and the early Republic was conscript duty. There are no libertarian privacy rights in a conscript military organizaion.
The courts don't belong here, but there is no public knowledge or outrage that what the courts have done is enter into the ignorant, false polarization of a progun/antigun culture war, promote a false concept of citizenship and create a confused constitutional mess.
The NRA, meanwhile, will have its right anyway by defeating legislation. It doesn't make its case in court, the only place that matters in defining the contours of civil rights. It defeat legislation with demagoguery. It succeeds because you fail. The demagoguery makes for much cynical, small-minded, obstructionist politics.
Any hint of a deviation from the core doctrine has to be viciously attacked. Without constitutional protection, any cracks in the fallacious constitutional facade and the whole fallacious constitutional edifice will come crashing down.
At present, the greatest demagogic appeal is to individual self-defense. Self-defense will be raised to an issue that destroys constitutional government. The process to affirm the childish political fantasy is already in the works. (.../chang7th.pdf) Regardless, it is a false argument. The way we defend ourselves as citizens under law and government is to apply the law against the lawless. That is the reason we have law and government. At the same time, there is no conflict in principle between accountability to a governing authority and a right to individual self-defense. The only reason we cannot have laws that apply against the lawless is that the gun rights militants, led by the NRA, work very hard and successfully to defeat any laws that would apply against the lawless because the same laws would apply against the NRA's "armed citizen guerrillas"(.../AK47acgs.pdf) that is, the "armed populace at large," the childish political fantasy and others with insurrectionist fantasies. Insurrection is after all a crime.
Start with the vital and fundamental principle: The Constitution is a frame of government with just powers that derive from the consent of the governed. It is not a treaty among sovereign individuals who give no more than word of honor and promise of good faith. The immediate questions arise with regard to the "armed populace at large":
Are they citizens bound by law?
Do they consent to be governed?
Do they give civic obligation?
Do they give just powers to a governing authority?
Are they registered, as Judge Silberman has written, for
militia service if called up?

The NRA calls itself the oldest civil rights organization. It is also the least successful. The NRA does not want gun rights cases it does not control in court. It worked hard and unsuccessfully to control and sabotage the true believing Cato lawyers' pursuit of Parker. See enclosures. The armed populace doctrine cannot succeed in court. It has not succeeded. It is not within the legitimate powers of the judiciary to reduce the Constitution from a frame of government to a treaty among sovereign individuals. The NRA argued the gun rights militants' case only once in Perpich and failed. That was an amicus brief not a suit filed to challenge any enacted law. When the gun rights militants cannot win the right they want in court, they have to divert attention with other arguments.

To further the appeal, the demagoguery invents a new history. That is not surprising. The demagogues possess the words and give them new meaning (.../roadserf.pdf). That is what demagogues do. What is surprising is that so many other people who should know better accept the arguments. It gets specific. The gun right militants, led by the NRA, have invented a whole preposterous, anarchic, insurrectionist, treasonous doctrine of political liberty largely (but hardly exclusively) out of words lifted out of context from Federalist Paper No. 46 (.../fpno46.pdf). The most ubiquitous words to invent a new history are "the advantage of being armed". When people with college educations, including tenured academics and federal judges, read these words in full context and insist that they mean the very opposite of what they plainly say, we are in a different state of political life. The Second Amendment becomes an article of faith. True belief is not concerned with objective fact. This is who we are. The courts can change the law. They cannot change history. Historic fact is still historic fact.

If objective, historic fact is not the business of our shallow, lazy news organs, you make it your business.
Regardless of what the NRA, a host of gun lobby/libertarian pseudoscholars, the "rabidly antigun Washington Post", NPR's Diane Rehm, and a growing number of anarchic federal judges would have us believe, James Madison in Federalist Paper No. 46 was not describing a civil right of private individuals. The issue was military federalism a federalism which today is anachronistic and irrelevant. The larger context of the Second Amendment is still relevant. It is the republican "right of the people" to participate in the military functions of the state as conscript citizen soldiers, fulfilling a civic obligation, rather than leave those functions up to a mercenary army whether the British Army recently removed or the US Army which as created in the Constitution was explicitly, in the consciousness of the 1780s, modeled after the British Army.

The great apprehension at the time was over an untried supergovernment with a mercenary army at its disposal. It is very far removed from public knowledge, but the Second Amendment only makes sense in those eighteenth century terms. The Militia Act of 1792 was a conscription law albeit enforced by the states. The conscript state militias died a natural death in the early Republic because, unlike in the British Constitution, they served no theoretical purpose, because no one wanted them, and because the US Army did not become an instrument of political intrigue reminiscent of Oliver Cromwell. The original antagonistic relationship between the conscript state militias and the mercenary US Army was combined in the twentieth century selective service acts. The US Army became in a sense a national militia. The United States became a modern nation state.

It is very troubling when we become less than a state at all. The "armed populace at large," as invented history, has made its way into the federal courts. Judge Reinhardt set the record straight on Federalist Paper 46 in footnote 41 of Silveira v. Lockyear (released 2003, Ninth Circuit):

James Madison's real meaning in Federal Paper No. 46 is not addressed by the Supreme Court leaving the conflict in the lower courts on the meaning of words unresolved, but more to the point from Judge Reinhardt:

Silveiva was appealed to the Ninth Circuit en banc and rejected for further review upholding Judge Reinhardt's interpretation. Judge Kleinfeld with concurrence of Judges Kozinsky, O'Scannlain, and Nelson in dissent to a denial of an en banc rehearing of Silveira asserted:

That is, the "armed populace at large". This anarchic assertion is not addressed by the Supreme Court either. There is no end to the invention, more than can be detailed here, of a new history.

Of course, nevertheless, what Judge Silberman has concluded in Parker settles the issue for policy making purposes. The original operating militia concept was civic obligation. The purpose was military preparedness. Military preparedness is the basis of policy now. All that is missing is political leadership. Instead there is more demagoguery which proceeds without opposition yours or anyone else's.
Demagoguery goes far and wide in the present political culture. In the early weeks of 2012 "conservatism" was outlined under the title "The Conservative Tradition in America" in a series of thirteen lectures at Citadel Military Academy of all places (Search "Citadel conservative lectures"). In one lecture David Keene, then president of the NRA (now op/ed page editor of the Washington Times), said nothing about the NRA's anarchic, insurrectionist, treasonous doctrine but devoted himself to describing how William F. Buckley created the "conservative movement" in the 1950s. Keene wants to place himself and National Rifle Association right in the mainstream middle of the "conservative" movement and culture. Unfortunely, Buckley is not around to answer a few simple questions.
According to Keene, Buckley wanted his "movement" to be respectable. He excluded the "crazies" (Keene's word) without ever adequately explaining how their "conservatism" differed from his: the John Birch Society, the Ayn Rand Objectivists, the racists, and the radical libertarians. However, the NRA is crazier than the "crazies". Buckley's "crazies", including even most radical libertarians, accept in some twisted, qualified sense the legitimacy of a governing authority. The NRA's ideologue Stephen Halbrook describes the NRA ideology as being "akin to radical libertarianism" (That Every Man Be Armed, p. 197). Halbrook's radical libertarians the "armed populace at large" are individual sovereigns in the State of Nature which is the state of anarchy. They make treaties not governments. His radical libertarians and the NRA's do not accept the legitimacy of a governing authority. Halbrook's radical libertarians are armed first consent to be governed second (That Every Man be Armed, p. 9) but keep their guns outside of accountability to a governing authority just in case things don't go their way in political processes. Halbrook and the NRA accept no meaningful notion of civic obligation even though throughout the mid-twentieth century the NRA never objected to national as opposed to the original design of state based conscription and represented itself as a virtual auxiliary to the Pentagon. The Pentagon has unwittingly paid the NRA millions through the Civilian Marksmanship Program. The others in the lecture series made no objection to Keene's presence and made no demands on Keene to explain just how akin is his doctrine the NRA's doctrine to Halbook's anarchy. There are no demands that he explain the fallacious fabrication of the gun lobby's anarchic doctrine or what purposes the doctrine serves. This is all part of the same story.

We will have conscription again, whether national or state based, when public necessity demands it. There is no public necessity now for conscription. If there were the legislatures would act as they have in the past. We can have, nevertheless, military preparedness. That is a policy. It maybe that the so called "war on terrorism" will force the issue. War is where a government is most serious. The "armed populace at large" fantasy is not compatible with the serious business of government.

There is much more to the subject than is represented here, but after 25 years of trying to get people to appreciate that what James Madison was really describing in Federalist Paper No. 46, I cannot be optimistic that anything will change. Regardless, nothing convinces me more of the correctness of my arguments and proposals than the condescension, humiliation, mockery, hostility this subject generates across the political spectrum.

I cannot image that you are serious enough to have read this far. I don't expect you to change, but, nevertheless, now is the time. Take control. Find a new path and a new objective for a firearms policy. Hold the gun rights militants to their advocacy. What more could you want. If you need help, ask for it, but PLEASE, PLEASE do expect me to send my money to support your failed, counterproductive efforts.

Your are on record. If we have a future, history will judge severely.

Your truly,
Potowmack

What the gun rights militants want is what the NRA argued to the Supreme Court in Perpich: To maintain the militia as the "armed populace at large" a collection of sovereign individuals who made a treaty not a government. http://www.potowmack.org/perp1990.pdf. A bill of rights, separation of power, checks and balances, regular elections are restraints on sovereignty, but sovereignty is still absolute. The rule of law, the state's monopoly on violence and the state's internal sovereignty all mean the same thing no matter if the state is the dynastic empires of the early modern period, the newly fashioned liberal state of the eighteenth century, or the present social democratic state, which the Marxist-Leninists and the libertarian fantasy never accepted, which the Libertarian Right will dismantle and which Bernie Sanders will expand and which, the rest of us accept and live with.

The NRA only cares about one point of policy: accountability to a governing authority, accountability to the very legitimacy of a governing authority. Accountability means specifically registration. Registration is the only way guns can be effectively regulated. Registration is what the NRA works hardest to prevent.
http://www.potowmack.org/parkappd.pdf
Constitutional authority for registration is right there in the militia clauses of the Constitution, the Second Amendment, how the original militia concept and institution were manifest in the Militia Act of 1792, and in the recent opinions of the courts. Militia duty in the early Republic was conscript duty. There are no libertarian privacy rights in a conscript military organization.

There is nothing in subsequent Supreme Court gun rights cases that contradicts Judge Silberman's conclusion in Parker. None of the amicus briefs filed to the Supreme Court in Heller or McDonald even mention that the Parker case settles the issue for policy making purposes. http://www.potowmack.org/park2007.pdf.

Nothing I say is original. Objective fact has been available to anyone who looked for more than two hundred years. It has been available through my efforts for more than twenty years. Robert Parry of Consortium News and Steven Krulik come late to this subject but make similar points.
http://kryo.com/2ndAmen/Quotes.htm
http://www.globalresearch.ca/gun-control-in-america-the-second-amendments-fake-history/5481031
http://www.opednews.com/articles/The-Right-s-Second-Amendme-by-Robert-Parry-121221-827.html
Krulik's "fake quotes" and Parry's history have been on my website since the 1990s. They have no audience. I have no audience. Objective fact has no audience. The bloody consequences are in the daily news. There is a public to educate.

The great present demagogic appeal now is to individual self-defense. An absolute right of self-defense has been elevated to a constitutional principle which destroys the very legitimacy of a governing authority. An absolute right of self-defense exist in the State of Nature which is the state of anarchy. The way we defend ourselves as citizens under law and government is to create legal categories of gun ownership that can be applied against the lawless. This why we have law and government. The only reason we cannot have laws that apply against the lawless is that the same laws would apply against "armed citizen militias" and others with insurrectionist fantasies. There is no conflict in principle between gun ownership for self-defense and accountability to a government authority, http://www.potowmack.org/chang7th.pdf

Judge Silberman in Parker has resurrected the original civic obligation manifest in the Militia Act of 1792. No one then objective to the inventory requirement of the Militia Act. The operating concept was civic obligation. The purpose as military preparedness.
http://www.potowmack.org/milinv52.pdf

Friedrich Hayek hath said it. http://www.potowmack.org/roadserf.pdf

There is an intellectual argument for vigilante policing. The only Marxist-Leninist advocacy organization in our present political context is the National Rifle Association. If vigilante policing did not work for Lenin why should we think it will work for anyone else.
http://www.potowmack.org/vilenin.pdf

To where do we turn when the NRA's "armed citizen guerrillas" "run amok"? What do we do when "armed citizen guerrilas" become the state? When we do not accept the validity of constitutional government this is where we end up.
http://www.potowmack.org/AK47acgs.pdf

My most cynical observation is that the political power do not want to solve the problem. They don't want the real victims of gun violence, minorities who live mostly in the cities, to become politically energized and active. That could get out of control.
The Senate Judiciary Committee does not ask Kopel to explain himself when he appears before the committee.
http://www.potowmack.org/dkop1988.pdf
The Senate Judiciary Committee does not ask LaPierre to explain himself when he appears before the committee.
http://www.potowmack.org/LaP1994.pdf
My cynicism is fortified when I can go to Sen. Durbin's hearing, sit innocently in the hearing room and have the US Capital Policy come to me and tell me my presence is not welcome. When the hearing broke up they aggressively followed my around and nastily ordered me to leave: "The exit is back there!" They knew who I was. They had to be operating under direct orders from Sen. Durbin himself. You can follow the lead of the Obama Administration's gun safety agenda, or you can bravely unfurl your banners and cast down your gauntlet here. Just ask one simple question.

The people do have a right to take up arms to defeat an oppressive government but is a right in the State of Nature not a civil right that can possibly be secured by government. The Founding Generation understood from John Locke that there is difference between political community, civil society, whatever we want to call it and the State of Nature which is the state of anarchy.
http://www.potowmack.org/LaP1994.pdf

The gun rights militants, led by the NRA, have created a whole preposterous, anarchic doctrine of political liberty largely out of works lifted out of context from this one passage. These are the most frequently printed words from the Founding period in the gun lobby's most reliable asset, the one the NRA calls the "rabidly antigun Washington Post".
http://www.potowmack.org/fpno46.pdf
LaPierre misquotes words from FP 46 four times in his 1994 book (which he did not write).

No further comment. See the editorial pages of Investor's Business Daily.
http://www.potowmack.org/portstan.pdf