The Potowmack Institute
(Refused publication by the Washington Post, submitted August, 1993, and again in December, 1993. Adaptations of this were also submitted to the New York Times and the Miami Herald in January, 1994.)
asamicus curiae in
US v Emerson (1999)
The National Rifle Association
What does the NRA really want?
The National Rifle Association
Charlton Heston Speaks
The Founders and the AK47
The NRA's "armed citizen guerrillas" "outflank", Wash. Post 7/6/89
The Washington Post
Guns, Rights, the Libertarian Fantasy, and the Rule of Law
Not Seen in The Responsive Community
Getting Commitment from Congress
The blood on their doorstep
The Libertarian Fantasy on the Supreme Court
Thomas and Scalia
Joyce Lee Malcolm
Ayn Rand, Blackstone
"Palladium of the Liberties"
The Second Amendment in Court
John Kenneth Rowland
LaPierre's List and the Law Reviews
Militia Act, 1792
Mass. Militia Act, 1793
Reviews Ayn Rand
National Review, 1957
Federal agents have been maligned
for excesses in pursuing extremists who possess dangerous
weapons. If federal agents are guilty of bad law enforcement, it
may be because their mission is so poorly defined. The National
Rifle Association denies any connection with extremists,
but the extremists acquitted last summer in Idaho, those arrested
in Los Angeles last July, and Branch Davidians under siege last
spring all act out a fantasy that is the NRA's own doctrine of
political liberty. This fantasy is, by default, the national
In the NRA's doctrine, private arms and arsenals are not just normal but essential to political liberty. On this page, July 6, 1989, Sue Wimmershoff-Caplan, a member of the NRA's National Board, cited the Federalist Papers in "The Founders and the AK-47," to argue that the Founders understood government to be inherently untrustworthy. She strongly implied that they intended some legally undefined concept of "the people" as a rival sovereignty to the legal institutions of government. Through some mystical process all those guns in private hands keep the government under control. This Second Amendment doctrine is widely believed and is a chief obstacle to effective firearms regulations. Carried to its logical end, however, this doctrine sanctions anarchy, vigilantism and paramilitarism.
Anyone can read the Federalist Papers. The Founders of this Republic were experienced, sophisticated political men. They did not create government at the mercy of insurrectionists. The immediate purpose for writing a constitution in 1787 was to create a strong central government which had the capacity, among others, to suppress the numerous rebellions (Shays's, the most famous) that cropped up in the chaotic aftermath of the American Revolution. The armed populace language the gun lobby quotes from that period to support its doctrine describes the 18th century militia. The militias were commanded by state governors. "Suppress insurrections" was almost invariably paired with "repel invasions" to describe the functions of the militia. In context, the original language is clear that the militiamen were armed for the State not against it.
The exercise of armed force, separated from simple gun ownership, defines sovereignty and is strictly the business of government. No State can tolerate within its boundaries a rival armed sovereignty and ensure the validity of its laws, the safety of its citizens, or even its own survival.
We create a democratic constitutional State to put he exercise of armed force under the rule of law where it is restrained and accountable to the people through democratic processes. Lincoln put it in his First Inaugural: "A majority held in restraint by constitutional checks . . . is the only true sovereign of a free people." The other choices are anarchy and despotism.
Lincoln mentioned a "revolutionary right" to overthrow an unacceptable government. A revolutionary right is a moral right not a constitutional right. Constitutional rights are legal rights defined in law protected by an independent judiciary. The signers of the Declaration of Independence exercised a moral right. They knew they were also signing a declaration of war and if they failed in their revolutionary project they would all be hanged. When it came to writing a constitution they had a different purpose. The Constitution is a declaration of governance. Article VI requires all state and federal legislative, executive and judicial officers to take an oath to support the Constitution. That oath is the obligation to the rule of law and denies any right to exercise armed force except as authorized by law. The gun lobby claims such a right--completely without judicial protection--in case legislative and electoral processes produce results "the people"--or just some people--don't accept. There will be no serious progress on gun violence until this purported "constitutional right" is repudiated in the public consciousness.
Once it is established that there is no principle of political liberty in extralegal gun ownership we can have a national firearms policy. It has to begin with the relationship between citizenship and the legal exercise of armed force and have as its central requirement the accountability of firearm ownership. The whole crisis in gun violence turns on this one point. It is the one point the gun lobby's insurrectionist doctrine cannot accommodate. Accountability, as national policy, means specifically the registration of firearm ownership as President Clinton has proposed. Registration, the reporting of private sales, an amnestied buy-back, and subsequent offering of substantial rewards for reporting illegal possession can effectively shut down the illegal traffic in firearms and remove guns from the lawless. Local communities will then be able to establish and enforce publicly agreed upon legal categories for loyal, law-abiding gun ownership.
In arguing for the right of "the people" to be armed outside of the law, the gun lobby indicates how the Nazis were able to confiscate registered guns in Germany. The gun lobby is never required to give documentation that the Nazis ever confiscated guns. The real lesson from the German experience is that private rightwing armies operated freely in preNazi Germany and were instrumental to the German Right's political triumph. When Adolph Hitler went before the Reichstag, March 23, 1933, to demand emergency powers as provided by the German constitution, he brought the Stormtroopers, the Nazi Party's private army, into the legislative chambers with him. The Nazis made sure the legislators knew how they were expected to vote. Hitler ruled by decree with only the appearance of constitutional legitimacy.
The gun lobby also cites examples of when armed citizens have triumphed over tyrannical governments. There are no examples of when this government or any government was ever intimidated by private individuals waving guns. Revolutions are made by revolutionary armies not armed citizens and succeed despite the tyrannical government's prohibitions on private arms.
The political leadership to establish a national firearms policy
does not have to redefine citizenship to deny the gun lobby's
Second Amendment claims. It need only affirm the rights and
limitations of citizenship already defined in constitutional
doctrine. If we cannot function as a political community, we
will perish as a political community.
© Potowmack Institute