The Potowmack Institute's proposal for a national firearms policy dating from 1989 has been validated by the courts. All that is missing political leadership. There is no reason for optimism that we will have political leadership.

The file below was originally written in 1998. It was last updated in 2001. Much has happened since then. True believing Cato Institute lawyers starting in February, 2003, pursued Parker et al. v. DC Government through the DC federal courts receiving an opinion in March, 2007.

The NRA worked very hard to control and sabotage this case. "Battle of the Ban". The NRA does not want gun rights cases in court. It is affraid it will lose and its demagogic gig will be up. It is afraid it will win and lose its fund raising appeal.

Nevertheless, Judge Silberman after many pages in which he disparaged the original civic purpose and sought to invent out of the "penumbra" and "emanations" of Constitution a libertarian privacy right to gun ownership, he arrived at the conclusion that we can have "registration ... for militia service if called up." (The words "penumbra" and "emanations" come from the Justice Wm. O. Douglas' 1965 Griswold opinion. The words set a precedent, but the words themselves have not been used since. The words have been much ridiculed by conservative constitutional scholars and right wing demagogues but that did not seem to deter Judge Silberman.) What Judge Silberman arrived at is the original civic purposes of civic obligation and military preparedness. Those puposes are where firearms policy making begins. Meanwhile,federal judges are still under oath of public office. The Constitution is still a frame of government not a treaty among sovereign in individuals.

From there, Parker has opened the path for policy. The only business of the Federal Government in firearms policy is to control and shut down the illegal traffic between and among juridictions. As states, led by Montana, clamor for a right in the Firearms Freedom Act that "... any firearms made and retained in-state are beyond the authority of Congress...," give them their hearts's desire. Place the civic obligation on the states as in the original Militia Act of 1792. The law could be structured in such a way that it says to the states, You keep your guns within your boundaries and the Federal Government will leave you alone. If not, the Feds will invade your space and do it for you. That is badly needed empowerment policy for state and local jurisdictions. There is a rough precedent for this kind of policy. During the Civil War there was a national conscription law, but because conscription was so unpopular it was never vigorously enforced. It was used as a threat against the states: You deliver your quotas to the Union Army or the Feds will invade your space and do it for you. The states delivered their quotas.

The gun rights ideologies have now made their way through the courts all the way to the Supreme Court in DC Gov. v. Heller and McDonald v. City of Chicago. There is nothing in the Heller or McDonald opinions that invalidates the arguments in this file. There is more discussion on the Potowmack Institute's HOMEPAGE.

Except to update links, the file below is unchanged since 2001.


The Potowmack Institute
HOME
http://www.potowmack.org/nfp.html


1998, 2001

A National Firearms Policy

The context for a national firearms policy is introduced on our HOMEPAGE.

The Potowmack Institute makes a policy recommendation which is very simple. It begins with the fundamental political concept that citizens, gun owners and non-gun owners alike, are citizens under law and government. They are not individual sovereigns in the State of Nature before there is law and government. They consent to be governed. They give "just powers" to government. They accept the legitimacy to a law-giving, law-enforcing authority. They understand that there is a difference between civil society and the State of Nature.

The recommendation is accountability of firearms ownership to public authority which mean specifically registration of ownership. Registration is the only way gun ownership and use can be effectively regulated. Registration or accountability means that gun owners accommodate to a governing, law-giving, law-enforcing authority. It is a recommendation of central relevance because it directly challenges the gun lobby's doctrine of political liberty that the purpose of all those privately owned gun, outside of the knowledge and reach of law and government, unbeholding to any governing authority, is to maintain a balance of powers between a privately armed populace and any and all government. If accountability to public authority is all the gun lobby and the broader category of rightwing ideologies really care about, why argue about anything else? The arguments in support of this policy recommendation are the arguments in support of the rule of law itself. Gun lobby minions in Congress don't hesitate to harrangue us about the rule of law when they want to impeach a president but no one is required to explain what the rule of law is and what it imposes on individual citizens. The Potowmack Institute starts with the fundamental premise that the rule of law, the state's monopoly on violence and the state's internal sovereignty all mean the same thing. The doctrine that rejects this is a hedge against the consent of the governed. It is the ultimate in political cynicism.

Registration of ownership would include the reporting of private sales. The immediate objective, as national policy, would be to shut down the illegal traffic in firearms. It would be empowering policy for local jurisdictions to enforce local rules and regulations, locally agreed upon, to meet locally determined needs. Gun ownership for self-defense is an important demagogic appeal of gun rights advocates. How we defend ourselves under law and government is to create legal categories of gun ownership and use that can be applied against the lawless. That is why we have law and government. Registration provides the mechanism to establish legal categories of gun ownership. To be effective the policy would have to be accompanied by an amnestied buyback of guns that do not qualify for legal ownership. As national policy, the Federal Government need do little more. It means gun owners consent to be governed and assent to the legitimacy of political processes which they participate in, as citizens, once they decide they are citizens, to make laws, including gun laws, and make them work. A long term goal would be to address the climate of fear that motivates many people to acquire guns to begin with.

The most authoritative treatment of firearms policy is William Vizzard's Shots in the Dark (2001). It is essential reading for an expanded treatment of the subject.

The much promoted individual right to gun ownership is the right to maintain the "armed populace at large" that the NRA has argued for in court. See .../nraperp.html. The rights of citizens are central but what is missing is the powers of government. The militia clauses of the Constitution, the Second Amendment and the Militia Act of 1792 were about the disposition of military force in the early Republic. The powers of government are to organize, train and discipline the militia. The gun controllers have not figured out yet that this is the point of entry for firearms policy. The Constitution defines the President as the commander-in-chief of the militia. The commander-in-chief has to know who the militiamen are and what are the militia resources. The Militia Act of 1792, enacted by the same people who ratified the Second Amendment, required the state militia officers to "enroll"— that is, conscript, register— militiamen for militia duty. It also required the state officers to maintain inventories of militia resources, called "Return of Militia," including privately owned weapons and report them to the state governors and the president of the United States. The militia inventory had a different purpose from registration but there was no mention of a right in those days to maintain private weapons outside of militia duty or the militia inventory. The was no concept of the "armed populace at large." There was no consciousness of a civil right to protect the privacy of gun owners.

A few gun rights scholars admit this when they are being intellectually honest. Don Kates writes in "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review 203 (1983):

Kates (with Randy Barnett) goes on to write in "Under Fire" (1996) (p. 1259):

What Barnett and Kates concede may "reasonably be argued" are essential ingredients of firearms policy. The nature and purpose of the right they want remain elusive. There is more common ground for a national firearms policy. The President of Colt Manufacturing proposed a national permitting system in 1997.

This basic knowledge and the political concepts are missing from the very truncated, falsely polarized present policy agendas. The Potowmack Institute makes the point on our HOMEPAGE that the political dimensions are of fundamental importance. Policy objectives are now pursued on the margins by both the gun rights advocates and the gun controllers.

Gun Rights

The gun rights advocates cannot win the right they want in court but not for the want of trying. The most explicit attempt was US v. Francis J. Warin, US Court of Appeals, Sixth Circuit (1976). The claim was unequivocally rejected. It demonstrates the poverty of public discourse that no one has ever heard of Warin. Warin has never been mentioned in the pages of what the NRA calls "the rabidly antigun" Washington Post. During the 1980s and 90s the gun rights advocates with much contribution from libertarian "scholars" produced an enormous volume of "scholarship" to make the gun rights case. These efforts achieved a political victory when the US Court of Appeals, Fifth Circuit, embraced the arguments in US v. Emerson (1999, 2001).

The victory was solely political not legal. It represents an extreme politicization of the federal judiciary to further a very partisan political agenda. The court's obiter dicta was legally meaningless. Emerson had his individual right recognized but was sent back to the district court for trial. [The Ninth Circuit provided a counter politicization in Silveira v. Lockyer (Dec. 5, 2002). More confused obiter dicta was added in Nordyke v. King (Feb. 18, 2003).]

The personal right sought, the right to individual sovereignty, however, has not been recognized either in the federal courts or in Bush Administration's Attorney General John Ashcroft. The issue has become "reasonable restrictions". Individual sovereigns, by definition, do not accommodate to a law-making authority that can impose and enforce legal restrictions, reasonable or unreasonable. What we get is more confused, conflicted, cynical, obstructionist politics.

Meanwhile, unable to win the right in court the gun rights militants will have the right by other means. These mostly involve influencing legislation. The policy efforts have been to employ the self-defense argument to loosened conceal/carry permit requirements in the state legislature. We made the point in our amicus curiae brief in US v. Emerson that there is no conflict in principle between gun ownership for self-defense and accountability to public authority. Permit holders become a constituency to defeat legislation. The ultimate objective is to remove the permit requirement entirely. Many gun rights militants, in the midst of these efforts, will take their conceal/carry chances without the permit because they do not recognized the authority of the government to require the permit.

The permit issue is very confused, but there are other contradictions. The gun rights agenda is fraught with internal contradictions. Another stategy is manifest in the promotion of Project Exile. The NRA does not want the Federal Government to have gun owners' number, but will involve the Federal Government in local law enforcement where historically it has never been. Members of Congress and some gun controllers have gotten behind this new idea without any examination of the implications for state and federal balance or how it tends toward authoritarian justice applied by the Federal Government. The John Birch Society shares the NRA's gun rights ideology and is more explicit in articulating it. See "The Rise of Citizen Militias" in the John Birch Society magazine, The New American, February 6, 1995. The JBS takes strong exception to Project Exile. See "The NRA's Gun Control Schizophrenia," The New American, June 5, 2000,

NRA is under much pressure from other gun rights militants within gun lobby ranks to promote more extreme agendas. An internet search with such key words as "Right Keep Bear Arms," "RKBA," "firearms" will produce dozens of gun rights organizations critical of the NRA.
See for starters:
Firearms Coalition
The Paul Revere Network
Gun Owners of America
Jews for the Preservation of Firearm Ownership
Citizens of America

The Gun Controllers

The other side of the false polarization are the gun controllers. The model and strategies to address gun violence are modeled after public health models and strategies: Sue the gun manufacturers modeled after sue the tobacco companies and promote gun safety modeled after successful efforts over the past fifty year to improve automobile and highway safety. Public health models are what establishment centrist foundations have decided they will support. The gun controllers have tried to establish in court a doctrine of "abnormally dangerous activity" that can be applied to the gun manufacturers. The results so far have been mixed. There is no appreciation that what they are trying to accomplish is political not narrowly legal or scientific. The gun control constituency that has been cultivated has nothing more than an incoherent sentiment that something has to be done. The best example of the failed strategy and failed constituency building was the Million Mom March. If waving placards to give them a message had any efficacy to implement policy the gun rights militants would be down on the Capital Mall every weekend waving placards. The Potowmack Institute was at the Million Mom March and could not find a single person who had heard of US v. Emerson which was more than a year old in May, 2000. The whole effort disappeared in the 2000 election season.

Registration and the Courts

The NRA will trundle out Haynes v. US (1968) to insist that a national policy of registration is unconstitutional. It is remarkable that the case is so rarely mentioned, but the NRA does make use of it. Here is Wayne LaPierre in the January, 2000, edition of American Guardian, an NRA magazine:

But, is it constitutionally possible to regulate the unregulated traffic that makes unregulated firearms available to the lawless to begin with.

The Supreme Court has also decided that anonymous tips for illegal activity are unconstitutional. They are unconstitutional for purposes of prosecution but illegally possessed firerams can still be removed from circulation and possession without prosecution.

In Haynes The Supreme Court reversed a Fifth Circuit ruling on the grounds that for a criminal to register a weapon was self-incrimation. There are numerous cases related to Haynes. They can be found with a search for "Haynes" on the files Cases1 and Cases2

Haynes needs serious examination in the context of the arguments made in the Potowmack Institute amicus brief in Emerson. Neither the Fifth Circuit nor the Supreme Court raised issues related to the competing interests of civil liberties under the Fifth Amendment and the interests of the "just powers" of this government to maintain its internal sovereignty. No internal sovereignty means no "just powers" to secure any rights whatsoever.

Haynes, however, was not decided as a Second Amendment case. It is ironic that the NRA has to wrap itself in a ruling of the criminal-coddling Warren Court (Warren himself dissented in Haynes) to have it's armed populace fantasy. Treason is a crime. Treason, the waging of war (bearing of arms) against the United States, is the only crime defined in the Constitution. Conspiracy to commit treason is also a crime. If dissident groups of convicted felons not only conspire to commit treason but assemble arsenals for that purpose, Haynes means that the "just powers" of government have no powers of enforcement against treason. Rather than an overbearing, tyrannically encroaching government, the real question emerges whether the Constitution of the United States, as currently interpreted, creates a government which is in fact a government at all. Supreme Court Justice Robert Jackson wrote, dissenting in a First Amendment case, in Terminello v. Chicago, 337 US 1, 37 (1949):

A strict gun lobby reading and application of Haynes would indicate that Jackson's conversion has been made. The Supreme Court may have to revisit Haynes as part of the course of actions that arrive at a national firearms policy. The real objective doesn't have to be to prosecute illegal possession but to take illegally possessed guns out of circulation.

The Haynes ruling, the false progun/antigun polarization, the vast ignorance of simple facts, and the false strategies make abundantly clear that before the fundamental issue of the relationship between citizen and state that is at stake in gun ownership can be raised and addressed, there has to be serious, substantive public discourse and there has to emerge a constituency for law and government over anarchy. No one has heard of Warin. Few have heard of Emerson either. We have to decide what we are doing here as a political community and whether or not we have political community at all. There is no serious, substanive public discourse now that raises these issues. This ain't about trigger locks. But just because the politicians (.../397cong.html), news media (.../washpost.html .../news.html), .../196rehm.html, and .../sixtymin.html) and the gun controllers can't engage in substantive public discourse and the gun rights militants can't break out of their rantings and proclamations on internet news groups, does not mean that anyone else has to be restricted.

Commerce Clause and the Militia Clause

In the past constitutional authority for gun control laws has been sought in the Commerce Clause. The Commerce Clause has been under serious attack from the ideologies of the Libertarian Right because it has been the source of federal authority to regulate a national economy. The Libertarian Right wants to undo the New Deal constitutional revolution and return to the golden age of liberty under robber baron capitalism. The agenda behind gun rights ideologies and gun lobby constituency building is much broader. Gun rights become a point of leverage to control political outcomes.

The courts have also sanctioned gun laws under the Commerce Clause, but in US v. Lopez the US Court of Appeals, Fifth Circuit, and the Supreme Court decided limits to the Commerce Clause in Congress' reach to microregulate gun ownership. The Commerce Clause and federal gun control authority came together in the Texas Justice Foundation's amicus brief in Lopez. The Potowmack Institute has provided most of the briefs in Lopez at: .../lopzamic.html. Similar issues have come up in the Violence Against Women Act (Lautenberg Act). See briefs in US v. Emerson. The business of the Federal Government is to maintain the internal sovereignty of the United States not to microregulate gun ownership. Members of Congress enact awkward laws which, by some standards, overextend federal authority into what has historically been matters of state and local regulation (domestic violence, school yards). The Congress enacts these laws because it cannot address the fundamental issues that are really at stake and come up with a proper role for the Federal Government to maintain internal sovereignty through a national firearms policy. It wants to appear to be doing something, but bad laws make bad court decisions. If the courts start striking down the intrusion of federal authority into local police functions, the Congress may be forced to take up fundamental issues. Although politically less convenient, addressing the fundamental issues from a historically correct understanding of the Second Amendment is intellectually and constitutionally simpler than Congress trying to regulate guns in school yards.

It has already been pointed out that there is in the Militia Act of 1792 another basis than the Commerce Clause for governmental authority to regulate gun ownership. The state militias were preexisting institutions to the Constitution. The Constitution created a National Militia to be drawn out of the state militias. (See .../houst2.html) The Militia Act of 1792 has an uncomfortable content for the "armed populace at large" (See the NRA's amicus in Perpich). Militia duty was conscript duty. In the eighteenth century the militiaman's weapon was never regarded as entirely his. The public had a claim for public purposes. It was common to requisition the weapons with or without the militiaman's body. See Thomas Jefferson on this in amicus Appendix L. If the gun controllers based the advocacy on constitutional and historical knowledge, in September, 2001, they would have been advocating resurrection of the original militia concept for homeland security; not with the idea that such a policy would be enacted— the conscript militia institution died in the early Republic because no one wanted it and no one wants it now— but to take the high ground in public discourse. The proposal is not, however, completely farfetched. Former Senator Gary Hart, who spend twelve years on the Senate Armed Services Committee, has made a similar proposal in his recent books.

The militia acts present an interesting circumstance in our present context. If the Congress were to recognize the military purpose of the Second Amendment and define the private weapons in the society as a national militia resource to be called into service to enforce the laws of the Union, suppress insurrections, and repel foreign invasions consistent with the requirement of the Militia Act of 1792, would there be a constitutional difficulty? The militia acts were loaded with rules and regulations for militiamen. When called into service they were subject to the rules and articles of war.

The citizen soldier of the eighteenth century militia, conscripted into service, was combined with the professional soldier, voluntarily enlisted in the regular army, in the selective service acts of the twentieth century. The selective service acts required young men to register their bodies with their local draft board within a few days of their 18th birthday. Failure to register was a serious federal felony with 5-10 years in federal penitentiary and enormous fines (the time and amount varied through the years). The registration requirement is still on the books but it is not enforced because there is no active draft. The draft and enforcement, however, could be activated by the Congress and president tomorrow. In the past, thousands were prosecuted under these laws, but now they can take relief that by the logic of Haynes, their prosecutions were unconstitutional because there were no "just powers" of government supported by the courts to enforce the draft laws or the militia acts. If a young man registered after the required date, he incriminated himself and therefore was immune from prosecution. Gee, no one ever told General Hersey. But really, the ruling in Haynes brings into question enforcement powers for any scheme of registration and licensing whatsoever. The proper arguments need to be put before the courts especially as they involve the instruments of armed force and lethal violence and the enforcement powers of government to maintain its internal sovereignty. In John Locke's The Second Treatise of Government, the primary manual of the American Revolution, when the individual entered into political community out of the State of Nature, he "has given a right to the Commonwealth to imploy his force, for the execution of the Judgements of the Commonwealth, whenever he shall be called to it." That point is not included in the Commerce Clause or the Haynes ruling. It is, however, included in the Second Amendment and the Militia Act of 1792.

For more on public authority and political community see:
Potowmack Institute amicus in Emerson.
For more context see:
"Sentiments on a Peace Establishment", George Washington, 1783.
"A Plan for the General Arrangement of the Militia of the United States", Henry Knox (the first Secretary of War), 1786.
"The Organization of the Militia", the Washington/Knox plan proposed to Congress in 1790.
"An Argument shewing that a Standing Army is inconsistent with a free government..." John Trenchard and Walter Moyle, 1697. The eighteenth century context.
Houston v. Moore (1820) and
Martin v. Mott (1827), with opinions by Joseph Story, otherwise famous for his "palladium" quote.

The proposals that wax and wane in Congress and the state legislature— gun shows and trigger locks— are more of the same incremental and piecemeal proposals we have seen in the past. The politicians grope at policy but without any conceptual foundations in political theory or knowledge of history. These proposals and strategies raise no fundamental issues of the relationship between citizen and state and stimulate no substantive public debate that would enlighten what is really at stake.


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