The Rightwing Movement, Second Amendment, Gun Control

It's not about guns...
It's about citizenship

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The Rightwing Movement

[The Gun Lobby, NRA]
[The Gun Controllers]
[A National Firearms Policy]
[The Rightwing Movement]
[The Pseudoscholarship]
[The Socialist Agenda]
[Individual Sovereignty and Libertarian Fantasy]
[The Liberal Collectivist Leviathan State]
[The Road to Serfdom]
[Restoring Law, Government, and Public Trust]

2nd Am in Court
US v. Emerson
Silveir v. Lockyer
Nordyke v. King

Search for "gun control"
for bills in Congress.
The Rule of Law

National Rifle Association
What does the NRA want?
Charlton Heston Speaks

The Washington Post
Cultivating Ignorance

Sixty Minutes
failing its mission.
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
Joseph Story's
"Palladium of the Liberties"

John Kenneth Rowland
Lawrence Cress
Leon Friedman
Garry Wills
Saul Cornell
D. Higginbotham
Michael Bellisiles
John K. Mahon

LaPierre's List and the Law Reviews
Revolutionary Militia

Militia Act, 1792
Mass. Militia Act, 1793

Libertarians & Conservatives
Whittaker Chambers
Ernest van der Haag
Frank S. Meyer

Addressing gun violence is not a tempest in a progun/antigun culture war teacup where some people love guns and just want to go duck hunting and other hate guns and want to confiscate them. Addressing gun violence involves the most fundamental issues of law, government and citizenship; and, it has a more immediate impact. Gun rights play a very critical role in present politics. It is the point of leverage where the Libertarian Right controls political outcomes. Al Gore, if he was anyone's candidate, and the bankrupt Democratice Party, if it has any vision for the country and any competence to lead, lost the 2000 election on the gun vote alone in at least four states.

The vital dimensions, nevertheless, are missing from public consciousness and discourse. See our Homepage. What passes for public debate is a false progun/antigun polarization around false issues, false definitions, false choices and false strategies. The Potowmack Institute seeks to break out of the false polarization and introduce fundamentals. The difference is between politicking (electioneering) and politics (the fundamentals). This is where we receive our political education and find our political adulthood for the twenty-first century.

The Rightwing Movement

The "vast rightwing conspiracy" is a misnomer. Conspiracy implies secrecy and illegality. The rightwing movement is more than the narrow obsession of Religious Right Clinton haters, Democrat haters, or some other haters fed by malignant suggestions and generous financing from Richard Mellon Scaife, the foremost of the rightwing "conspirators." It has developed outside of the political parties and advances over a broad, well-financed front. It is not secret or illegal. The activities of rightwing foundations are wide-ranging and in plain view for anyone who looks. Three reports in the 1990s provided an important picture of rightwing funding activity:

"Buying a Movement, Right-Wing Foundations and American Politics," People for the American Way, (202-467-4999, $7.95)

"Moving a Public Policy Agenda: The Strategic Philanthropy of Conservative Foundations," The National Committee for Responsive Philanthropy (1997), (202-387-9177, $25).

"Feeding Trough; the Bradley Foundation, the Bell Curve, & the Real Story behind W-2, Wisconsin's National Model for Welfare Reform," A Job is a Right Campaign, PO Box 06053, Milwaukee, WI 53206. Send check for $12.

Michael Lind's book on the rightwing movment provided more background:

Michael Lind, Up From Conservatism (1996). Paperback.
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Other earlier works that are still very useful:

Sidney Blumenthal, The Rise of the Counter-Establishment: From Conservative Ideology to Political Power, 1986.
His Chapter 12 is in our archive.
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John S. Saloma III, Ominous Politics, 1984.
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Major players among the rightwing foundations include:
John M. Olin Foundation
Sarah Scaife Foundation (controlled by Richard Mellon Scaife)
Charles and David Koch Foundation
Lynde and Harry Bradley Foundation
Smith Richardson Foundation
Adolph Coors Foundation

The battle ground is culture wars. Many who would "fight the right" have let the right they want to fight choose the battle ground.

What is at work is "the libertarian revolt against the modern state," from Stephen Newman's descriptive subtitle. The revolt against the modern state has its roots in the New Left as much as in the Libertarian Right although the respective branches of revolt have different targets. The overarching ideology is libertarianism. In political theory there is no clear distinction between libertarian and liberal. There is a Libertarian Left and a Libertarian Right. They both have their roots in the Liberal Tradition. It is conservative constitutional scholars who have characterized ideology under the contemporary libertarian rubric as a "caricature" of American liberty.

Newman is a very useful primer on libertarianism and the Libertarian Movement:

Stephen L. Newman, Liberalism at Wit's End: The Libertarian Revolt Against the Modern State, Cornell University Press, 1984.
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Another critique is:

Peter G. Brown, Restoring Public Trust, Beacon Press, 1994. Brown gives discussion to the rightwing movement and the inadequacy of any opposition.
His chapter 1, "The Sources of Disillusion," is in our Archive.
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Even though the libertarian revolt spans the political spectrum, it is still the rightwing insurgency in the Republican Party and its militant libertarian individualism that is the driving force in American politics. A perspective on the failed consciousness of identity politics to fashion an opposition is provided by Todd Gitlin in Twilight of Common Dreams: Why American is Wracked by Culture Wars,
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Other references can be found in Resources. The references provided here and in Resources are not intended to be exhaustive.

For another description see William Greider, "Rolling Back the 20th Century," The Nation, April 24, 2003.

In the twentieth century there were five transformations of the United States of constitutional proportions that made it into a modern state capable performing on the world stage as a great power and managing a modern industrial economy:
1) The creation of the Federal Reserve, 1912. A central bank had been a controversial issue in the early Republic. The Second Bank of the United States had been abolished by Andrew Jackson in 1836.
2) The Sixteenth Amendment, 1912, which constitutionalized income tax. The courts had previously struck down income tax. Income tax gave the modern state its most important revenue source.
3) The Selective Service Act of 1917. In original constitutional design and in the practices of the early Republic conscription had only been into the militia. See the Militia Act of 1792 and the "Return of Militia". The Selective Service Act of 1917 combined the opposing and antagonistic concepts of the citizen soldier conscripted into the pre-existing militia and the voluntarily enlisted professional soldier of the regular army created in the Constitution and modeled after the British Army.
4) The New Deal which expanded federal authority to regulate financial, banking and labor markets.
5. The Civil Rights Movement in which the federal judiciary expanded federal authority to establish national standards for the protection of civil rights against the states.

Of these, the most radical departure from original design and intent was the Selective Service Act of 1917. See Leon Friedman's Conscription and the Constitution.

All of these transformations involved expansion of federal authority to address national needs and interests. The Libertarian Right would substantially or entirely dismantle all of these transformation.

The pressures for reform and transformation build under industrialization after the Civil War, but war and depression provided the political leverage to erect the modern state. Historian H. W. Brands in The Strange Death of American Liberalism
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describes how the Cold War was the justification for much of the expanded role of the Federal Government in the 1950s and 60s into many areas of policy where it had never been before or had only been on a small scale. From the New Left's rejection of the modern state's authority to conscript to the Libertarian Right's hostility to US v. Darby (1941) which upheld the Fair Labor Standards Act of 1938 which established the forty hour work week as national law, it is the modern state that is at issue. What we have lived in since the 1930s is the mixed economy. Robert Kuttner has give a recent endorsement in Everything for Sale (1997).
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Rightwing/libertarian ideologies regard the The New Deal and the mixed economy as radical departures from the path toward true liberty. Edward Crane president of the Cato Institute told a conference in Moscow in 1990: "When looking to the west you must reject those who promote democratic socialism, ...or even the so-called mixed economy of the United States. Yours is a unique opportunity to reject all forms of statism, whether in its most pernicious form, communism, or in its more insidious form, the mixed economy." (Quoted in "Sources of Disillusion".) True liberty means a return to the domestic policy arrangments of robber baron capitalism and the political stucture of the Articles of Confederation.

So how did we get to this point? The rightwing movement started in the 1930s, weakly to be sure, and is a response to those changes in public policy.

The Libertarian Right discovered with the Goldwater candidacy and the George Wallace insurgency in the 1960s that it could build an electoral base in the Deep South. We get the Southerization of American politics. The Wallace candidacy demonstrated that demagoguery on race and culture could also divide the American working class even outside of the South. This was the working class that had voted for Roosevelt and the New Deal. The state of Alabama and industrial working class neighborhoods in the Midwest and Northeast had voted for Roosevelt in 1936 by margins of ninety percent. The organizational structure that got Wallace's American Independent Party on the ballot in 50 states in 1968 was provided by the White Citizens Councils in the South and the John Birch Society outside of the South. Even the Wallace people referred to their "nut cases." (See Dan Carter, The Politics of Rage.)
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Wallace abandoned the American Independence Party and ran again as a Democrat in 1972. The American Independent Party standard bearer in 1972 was John Schmitz, a John Birch Society extremist. The 1970s saw computer mass mailing technologies, the involvement of corporate business interests, enormous but largely invisible funding from tax-exempt rightwing foundations, and the contributions of hyperactive libertarian intellectuals.

The movement culminated in the 1994 congressional Republican Revolution and the impeachment of President Clinton. The crusade against Clinton was motivated by the fear of the possibility of activist government. The movement falter with the political demise of Newt Gingrich but is now back in power with BushTwo. There is still no credible opposition. The rightwing movement's biggest problems are that its intellectual foundations are not independently viable without enormous rightwing funding and that the great majority of the American people do not reject the modern state and do not share the extreme individualist agenda, the economic agenda, the fundamentalist moral agenda or the passions that motivate them. They are not sympathetic to a return to pre-New Deal robber barron capitalism which has now gone global. The rightwing movement with enormous financial backing has to succeed with a sophisticated public relations strategy and rely on passionate minorities like the Religious Right and the gun lobby. The formula produces cynical, small-minded, obstructionist politics. Its success depends on the absence of any political leadership that would define an opposition and offer a different political vision.

Political leadership should not be difficult. The rightwing movement has been full of internal conflicts and contradictions from the beginning. The John Birch Society, for example, preaches that the original design of the US Constitution was a "constitutional republic" which is defined against "democracy." Democracy in this formulation is the social democracy of the forty hour work week and other worker protections. A constitutional republic implies a conservative regime of property with a layer of representatives between the people and the formulation and implementation of policy, but the John Birch Society then cites the gun lobby's pseudoscholarship (See "Citizen Militias, The New American, Feb., 1995) to embrace the doctrine of armed democratic anarchy which was rejected as early as the 1790s (See Saul Cornell, "Commonplace or Anachronism," Constitutional Commentary, Oct., 1999).

The career of George Wallace is another illustration of contradiction. Wallace started out as a New Deal Democrat. He became a rascist demagogue for 15 years from 1957-1972 and then when he had to withdraw from presidential politics, went back to Alabama, apologized for his racist demagoguery and became a New Deal Democrat again. Wallace's political descendants are Pat Buchanan and Ross Perot, who are populist demagogues usually perceived as rightwing, but whose economic nationalism is in conflict with libertarian free market utopia of the capitalist right's global capitalism or new world order. The internal conflict in the rightwing movement since the 1960s has been between libertarians and conservatives. If the agenda is anarchy and antigovenment disruption, the ideologies don't have to make sense.

See our Resources file for a sampling of the contraditions. The contradictions have been debated within the rightwing movement but not much anywhere else. See also:
"Seducing the Left,", Mother Jones, 1980.
"Libertarianism or Libertinism?", Frank Meyer, National Review, 1969.
"Libertarian Movement in America,", George Friedman and Gary McDowell, 1983.
"Libertarians & Conservatives", National Review, 1979.

The ideological passions have not seriously been examined but interesting observations do emerge. On NPR's "Talk of the Nation" program June 16, 1999, (This is available in the NPR archive through RealAudio), Paul Weyrich, a prime mover of the rightwing movement made, in the context of a discussion on transportation policy, a distinction between libertarians who will fit the world into an ideology and conservatives who just want a way to live. He even went so far as to compare libertarians with Marxists in their blind ideological zealotry. The comparison was especially noteworthy coming from Weyrich. The conflict between libertarians and conservatives provides a large perspective on contemporary American politics.

Further comment will enlighten the comparison with Marxists. The introduction to the Croft's Classics edition (1955, editor Samuel Beer), The Communist Manifesto, observes:

    In time, however, as "cultural lag" was overcome, even this form of state [the dictatorship of proletariat] would no longer be needed. Then in Engels' expressive phrase, it would "wither away."19 [Anti- Duehring] Force would vanish from the relations of men...After having been so long alienated from his true self, man would at last through the grace of the iron law of history enter into his earthly paradise, where all live together in perfect freedom and community.
    This final vision of Marx is ancient and in no sense ignoble. His is, however, a vision— a dangerous vision. To teach that evil arises only from economic institutions is false. Men may be corrupted by power as well as by property and in any society pride will find ways of distorting human nature. To found a movement or a state upon a doctrine which does not recognize these possibilities is an invitation to tyranny.

It is equally false to teach that evil arises only from government and public authority. Historian Richard Tawney (Religion and the Rise of Capitialism (1924), p. 39, Mentor Book edition) described Marx as "The last of the Schoolmen," the medieval theologians who made moral pronouncements on society, for his embrace of the labor theory of value; but, alas, Marx was a mere transitional figure. He was, ironically, the first of our Libertarian Deliverers. Marx and Engels at least required a historical process for the state, public authority, to wither away. Our Libertarian Deliverers will wish it away. Most libertarians even in our present context are minimal statists accepting the principle of the nightwatchman state which has to mean that the state maintains the monopoly on violence. The possibilities of tyranny, however, are the same in the more extreme libertarian anarchic utopia.

The true belief will undo New Deal collectivism and return to nineteenth century robber baron capitalism, the movement has gone so far as to resurrected and make an alliance with the Confederate theory of the Constitution. It is no accident that the most rabid Clinton haters had their political base in the states of the old Confederacy. Both Rep. Bob Barr (Georgia) and Senate Majority Leader Trent Lott (Mississippi) have had associations with the Council of Conservative Citizens, an organizational descendant of the Citizens Councils of America (dating from the 1950s and more popularly known as the "White Citizens Councils"). The shared world view that cuts across the whole rightwing movement is rebellion against political authority and the degrading of any institutions of government that might involve any meaningful concepts of "just powers". Not even the minimal statists are very articulate on this. The ideological continuum ranges from private militias and Republic of Texas lunatics, acting out in armed rebellion the libertarian fantasy, to the Republican Revolution, the shutting down of the government and the impeachment of a president. The movement comes together in meetings of the secretive Council on National Policy which is supposed to be an alternative to the Council on Foreign Relations. There, respectable Republicans like House Majority Leader Dick Armey and House Majority Whip Tom DeLay (two major impeachment zealots), Trent Lott and others mix with the Christian Coalition's New World Order conspiracy theorist Pat Robertson and Gun Owners of America Executive Director Larry Pratt who unabashedly denies the sovereignty of the rule of law and the legal institutions of government.

The Pseudoscholarship

The rightwing foundations spent $100s of millions in the 1990s alone to shape public policy and consciousness in just about every area of public concern. The Potowmack Institute is concerned with firearms policy. Firearms policy is where the ideology and the strategy to put over a passionate minority agenda is most explicit. It is the model for understanding the ideology, strategy and tactics of the larger rightwing agenda.

There is no research on why an enormous volume of gun lobby/libertarian pseudoscholarship, most of it independent of the identifiable gun lobby, has appeared in recent years. The NRA has sponsored some of it through the Firearms Civil Rights Legal Defense Fund, but the Potowmack Institute is confident that when the full story is finally told it will come out that much of this pseudoscholarship has been sponsored or promoted, directly or indirectly, publicly or privately, in all cases or in just enough to give momentum, by the same network of rightwing foundations (or people connected to them) that have been so active in other areas of policy. The rightwing movement needed the constituency, the ideology was much the same, and the true believing libertarian ideologues were readily available.

There are objective, intellectually honest historians and scholars who have written on the Second Amendment, militias, and citizen soldiers:

John Kenneth Rowland, .../1197row.html, previously unpublished PhD dissertation, Ohio State, 1978.
Jerry Cooper, The Rise of the National Guard (1997). Chapter 1 treats the period from colonial America to the Civil War.
Russell F. Weigley, History of the United States Army (1967). Weigley's theme is the dual system of citizen soldiers rooted in the militia system and the professional soldiers of the regular army.
Lawrence Cress, Citizens in Arms (1982)
Lawrence Cress, "An Armed Community: The Origins and the Meaning of the Right to Bear Arms," J. Am. Hist., 1984; in our Archive
John K. Mahon, History of the Militia and the National Guard, (1983).
Leon Friedman, Conscription and the Constitution,Mich. L. Rev., 1969.
Don Higginbotham, "The Second Amendment in Historical Context," Saul Cornell, "Anachronism or Commonplace." Michael Bellesiles, "Sucide Pact."

Also, a very readable, informative, historically accurate perspective from a politician: Gary Hart, The Minutemen (1998), chapter 4, "The Republic and the Militia." [Order From Amazon Today]
Hart was on the Senate Armed Services Committee for 12 years.

The literature, published mostly in law journals, has given enormous respectability to gun lobby claims and posturing. These are not yahoos holed up in a farm house on the prairie in defiance of all authority. The authors of these articles appear before legislative committees (.../cong6.html), are called on as authoritative sources by the news media, and have now been cited in very ominous and instructive developments by at least two members of the Supreme Court and have been embraced by a few judges in the lower federal courts. .../emeramic.html .../nordyke.html
Kopel wrote in "Trust the People," Cato Institute Policy Analysis No. 109 (1988): "The tools of political dissent should be privately owned and unregistered." See Cato Institute website.

Lott responded to a Potowmack Institute inquiry that his research is paid for out of his salary. He did not respond to the subsequent inquiry, Isn't your salary paid for by the John M. Olin Foundation? He did not respond to the assertion that if all citizens are armed for self-defense, the armed predators will simply ambush their victims.

There are two demonstrated examples of rightwing foundation involvement in establishing gun lobby credibility. One is David Kopel, a prolific gun rights militant. His homebase is the Independence Institute in Colorado which is funded by the Adolph Coors Foundation. See briefs in Emerson. The other is John Lott, formerly the John M. Olin Professor of Law and Economics at the University of Chicago, now at Yale. The "law and economics" movement is a major area of rightwing foundation funding and the University of Chicago is the largest academic recipient of rightwing largesse. Lott's recent book, More Guns, Less Crime, has received much attention. The gun lobby has to cultivate a constituency to defeat legislation and this kind of contribution is very useful in assuring those with a will to believe. John Lott has had a long career supported by rightwing largess. He started out as a Weaver Fellow. But, nowhere does he address the fundamental relationship between citizen and state. Lott's credibility has suffered recently.,2522,561876,00.html
The John M. Olin Foundation also funds the Federalist Society (, a rightwing alternative to the American Bar Association. The most famous recent member of the Federalist Society is Independent Counselor Kenneth Starr. Another presumed member of the Federalist Society and the rightwing network is libertarian deliverer Daniel Polsby. He is the Kirkland and Ellis Professor of Law at Northwestern University. Kenneth Starr is a partner in the Kirkland and Ellis law firm. No one ever asks Polsby to explain who if anyone funds his objective scholarship. Still another is William Van Alstyne who is #1 (in no particular order) on LaPierre's list in Guns, Crime, and Freedom. He was the law professor of Kenneth Starr.
(Other members of the Federalist Society are Federal Judge David Sentelle (who dissented in NRA v. Reno (July, 2000)), attorneys James Moody and George Conway who were instrumental in delivering the Linda Tripp tapes to the Starr investigation.)
[The Gun Lobby, NRA]
[The Gun Controllers]
[A National Firearms Policy]
[The Rightwing Movement]
[The Pseudoscholarship]
[Individual Sovereignty and Libertarian Fantasy]
[The Liberal Collectivist Leviathan State]
[The Road to Serfdom]
[Restoring Law, Government, and Public Trust]

[PotowmackForum] interactive posting [ARCHIVE], Potowmack Institute files
[RESOURCES], Newspaper, magazine, journal articles, books, links

The Socialist Agenda

The crisis in gun violence and present gun lobby posturing around firearms policy cannot be separated from rightwing reactions to the New Deal. Half of the e-mail received at the Potowmack Institute denounces touching guns with laws as "socialist." See .../197coop.html for a very illustrative example. (We respond that we support the socialism of the forty hour work week. See below.) Other less frequent denunciations are "statist", "collectivist?, and "communist" ( (in that order of frequency). These same words were applied to attack the New Deal starting in the 1930s. Friedrich Hayek (1898-1992) dedicated his influential The Road to Serfdom (1944) to "the socialists of all parties." When President Eisenhower did not dismantle the New Deal, the newly formed John Birch Society denounced him as a "card-carrying communist." The language culminated in "liberal collectivist Leviathan" (— Frank Meyer (1909-1972), "What is Conservatism?," 1964.) The passion and dread are brought forward to the present in G. Gordon Liddy's and Rush
Meyer like so many rightwing ideologues was a Communist Party activist in the 1930s. Reading Hayek in the 1940s converted him. He was an editor and columnist at National Review after 1955. See "Libertarianism or Libertinism?", 1969, in our Archive.

Limbaugh's rabid hatred for President Clinton that anyone could have tuned into. A caller to Liddy's program may have indicated the source of the hatred best when he denounced Clinton for wanting to "impose a socialist agenda on America." Clinton's welfare reform policy, meanwhile, was adapted from a pilot program in Wisconsin that was developed under the auspices of the Bradley Foundation. See "Feeding Trough" above. Clinton's "socialist agenda" nevertheless continued the upward redistribution of wealth begun in the 1970s and the downward redistribution of the tax burden begun in the 1980s.

Individual Sovereignty and the Libertarian Fantasy

The operating concept is individual sovereignty. The NRA's individual right is the right to individual sovereignty. In the real world states are sovereign. Individuals are citizens under law and government (synonymous with subjects— subject to law and government). In the brave new world of rightwing individualism, socialism becomes anything that infringes on individual sovereignty. Here is where we find the real polarization. Individual sovereigns by definition do not consent to be governed, do not put themselves under law and government, do not give "just powers" to government, do not create a higher law that they are governed by. They do not surrender up "the executive power of the law of nature" (— Locke) which is the law of the jungle. Government becomes a matter of voluntary association; the Constitution, a treaty among sovereign individuals. They can take it or leave it. Individual sovereignty and the right to political secession, applied even to individuals, are planks in the Libertarian Party Platform.

Individual sovereignty IS the libertarian fantasy that we dissolve political community and return to the State of Nature. Just as members of the Heaven's Gate cult shed their physical containers to join an alien space craft, we will shed our political containers and walk around in a state of out-of-political-body levitation. Two and a half millennia ago Aristotle described man as a political animal who lives in political community. To live outside of political community was to be a god or a beast. A god does not need political community. A beast is incapable of political community. James Madison wrote in Federalist Paper No. 51, "If men were angels no government would be necessary." Our libertarian deliverers have decided that they are angels and will give the rest of us the lives of beasts. The dangers have already been pointed out in the comparison with Marxists. The libertarian fantasy expresses a demoralized public mood and a defeatist retreat from political life,

The libertarian fantasy subsumes the armed populace fantasy and brings together firearms policy, the Libertarian Right and the extreme right. The February 6, 1995 issue of the John Birch Society magazine The New American contains the cover story The Rise of "Citizen Militias," repeating the gun lobby's right-to-arms arguments, and then near the end of the same issue is an obituary in glowing tribute to libertarian deliverer Murray Rothbard the primary formulator of the libertarian fantasy. The libertarian horror that there is government in this world is an integral part of rightwing ideologies.

The NRA's Stephen Halbrook in That Every Man Be Armed (1984) formulates a doctrine of libertarian republicanism. Halbrook does not explain and no one has asked if his libertarian republicans are citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature, who made a treaty. The Libertarian Right is the biggest support of individual rights but the rights are not civil rights secured by government but rights in the State of Nature that the individual secures for him/herself. That is why they need a gun in every pocket. The NRA's goal of putting a gun in every— or just any— pocket, out of the reach of government, completely outside of any powers of enforceable regulations, fulfills the anarchic fantasy.

The Liberal Collectivist Leviathan State

Since rightwing passions are directed at the socialism of the New Deal collectivist Leviathan we can gain perspective on the substance of the passions by looking at one important illustrative achievement of the New Deal. The Fair Labor Standards Act of 1938 established as national law the forty hour work week, originally proposed by the Socialist Party in the early twentieth century. The Supreme Court held it constitutional in United States v. Darby (1941). Darby was a reversal of Lochner v. New York. (1905) in which the Supreme Court struck down, on good libertarian principles, a New York law limiting the work week in bakeries to sixty hour as a violation of the sanctity of contract between employer and employee. Edward Corwin's constitutional law text, The Constitution What it Means Today (1978 edition), describes Darby as the "very essence" of the New Deal constitutional revolution where the power of Congress "to regulate commerce" had shifted from the earlier emphasis on "commerce" to a new emphasis on "regulate." Because of decisions like Lochner, the laboring classes in the early twentieth century regarded the Constitution as an instrument of oppression that protected the rights of property against demands on the state for legal protection of workers' rights. The Texas Justice Foundation amicus in US v. Lopez makes scant mention of the Second Amendment but devotes much attention to the expansion of federal authority under the Commerce Clause in Darby without mentioning what Darby upheld.

An older characterization that embodies the transformation from Lochner to Darby is the John Birch Society's "constitutional republic" which is defined against democracy or mob rule. Without a constitutional republic operating by fixed rules to restrain democratic ("socialist") aspirations, democracy could become unlimited. When the New Deal wedded the laboring classes to the national government there was no longer a constitutional barrier against the collectivist Leviathan. The Leviathan is still encroaching, but the John Birch Society is very confused on whether it wants the rule of law under a constitutional republic or armed populace anarchy as the last ditch defense against the collectivist Leviathan.

The connection to the John Birch Society is not imaginary. Charles and David Koch are activists and funders of the libertarian right. Charles Koch provided the funds to found the Cato Institute in the 1970s and David Koch put up half a million to buy his candidacy for vice president on the Libertarian Party ticket in 1980. Their father, Frederick Koch, who made the money, was one of the founders of the John Birch Society. See "Seducing the Left,", Mother Jones, 1980, in our Archive.
Harry Bradley whose fortune is the basis for the Bradley Foundation was another early supporter of the John Birch Society.
If the NRA does not want to be marginalized to the fringe like the John Birch Society, the NRA should distinguish its armed populace doctrine from the John Birch Society's articulation of the same. The demagogic appeal to the individual sovereignty of gun owners, meanwhile, builds a constituency by separating gun owners from their interests not just as citizens but as workers. In the state of anarchy there is no consent to be governed which means no state with "just powers" to secure either the rights of workers or property. We have not heard from the AFL-CIO or the US Chamber of Commerce on this.

The 40 hour work week used to be settled in constitutional doctrine and no one has yet proposed repeal, but this maybe changing. It is not clear that Richard Epstein and Richard Posner would not declare the New Deal unconstitutional and restore Lochner over Darby. We have not heard from the AFL-CIO on this either. Epstein is a fellow at the Cato Institute and another professor of law and economics at the University of Chicago. Posner is a federal judge and lecturer at the Chicago Law School. See "The Chicago Acid Bath," Jedediah Purdy, American Prospect, Jan/Feb, 1998.

The Road to Serfdom

Friedrich Hayek's The Road to Serfdom (1944), seminal to the consciousness of the rightwing movement, has won many converts, but it does not support the more extreme perceptions of the collectivist Leviathan. Hayek's great dread was central planning. The United States experimented with central planning in the War Industries Board during the First World War, the voluntary associations of Herbert Hoover first as Secretary of Commerce and then as President, and the National Industrial Recovery Act of the early New Deal. The early New Deal experiments failed to restore prosperity and were abandoned (declared unconstitutional in fact) never to be tried again. Hayek may have objected to many aspects of the mixed economy that came out of the New Deal and the Second World War but he, nevertheless, basically accepted in principle the domestic policy achievements of the New Deal Leviathan. Hayek accepted limitations on work hours, regulation of financial markets (another enduring policy achievement of the New Deal), and even accepted succor for those "who for various reasons cannot make their living in the market, such as, the sick, the old, the physically and mentally defective, widows and orphans." (— Law, Legislation, and Liberty, p. 54-55) John Birch Society's "constitutional republic" is a vulgarization of Hayek's "constitution of liberty." The armed populace fantasy, whether from the John Birch Society or the NRA, is completely incompatible with Hayek's conception of the rule of law. The distorted perceptions of reality, held with the convictions of religious zealots, motivate the rightwing forces to be reckoned with in contemporary American politics. As described by Michael Lind in Up From Conservatism (1996),
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the Republican Party has had to embrace passionate minority constituencies of "crackpot fundamentalists" and "storm trooper militias" for its electoral base.

Restoring Law, Government, and Public Trust

To have again the utopian age of robber baron capitalism, the libertarian right with its Religious Right obstructionist and gun lobby insurrectionist constituencies will dissolve government itself. Government is the administrative apparatus of the state. The state is public authority or public power. The first function of a state is maintain its sovereignty— both internal and external. A state with no obligation to maintain is internal sovereignty raises the very serious issue of whether or not we have a state and a government at all. No state, no government, no laws, no political obligation, it turns out, are what some people want. To have civilized society the rest of us have to clarify the fundamentals. This is not about culture wars. It is about fundamental political concepts.

We can start with the first libertarian, Thomas Hobbes (1588-1679). We cannot separate "libertarian" and "liberal" in political theory, but we can separate them from "conservative." Before Hobbes all political theory was conservative: Individuals were born into political community with obligations. They received whatever rights when they fulfilled their obligations. In Leviathan (1653), Hobbes started with the premise that individuals are born in the State of Nature with natural rights and created political community for self-preservation (self-defense). John Locke (1632-1704) started from the same premise in The Second Treatise of Government (1689). In Locke individuals enter political community to secure lives, liberties, and estates which mostly meant (capitalist) property. Hobbes and Locke founded the liberal (libertarian) political tradition (See our amicus in Emerson) which runs through the Declaration of Independence and the US Constitution and is the major political influence today in a world that is still largely conservative. Halbrook puts Locke and Hobbes on opposite sides of his preposterous divide between authoritarian absolutists and libertarian republicans, but Hobbes and Locke along with everything American are in the same libertarian/liberal tradition. There is no conservative tradition in America. Everything American is in some sense liberal or libertarian. The Potowmack Institute cannot be anti-libertarian. Our concern is the malignant direction of the Libertarian Right where class interest mixes with dangerous and destructive fantasy.

Locke's The Second Treatise was one of the primary manuals of the American Revolution. Locke's concern was to find a source of political authority different from the ruling conservatism of patriarchy and scripture. (See our amicus in Emerson) The new source was the consent of the governed (not original to Locke). Government, nevertheless, was still government. As Alexander Hamilton put it in Federalist Paper No. 33, government is about "POLITICAL POWER AND SUPREMACY" (caps in original). It was not a "treaty" based on "good faith." Chief Justice John Marshall in McCullough v. Maryland (1819) wrote, "We must never forget this is a constitution we are expounding here." The constitutional covenant was weighty and perpetual. President Lincoln put it in his First Inaugural, "Perpetuity is implied, if not expressed, in the fundamental law of all national governments." Locke uses "perpetual" throughout in The Second Treatise.

The consent to be governed creates sovereign public authority to which the individual owes allegiance rather than to an absolute ruler or to immediate tribe, family and friends. Common agreement on sovereign public authority creates the rule of law and public trust which is the basis for not only modern political life but also modern economic life. A civic culture of public trust is strongly anticipated in Locke. What we are having a hard time with now is that the individual gives up something to enter political community— to become a citizen. If we give up nothing we create a political culture of fear and suspicion which is no political culture at all. In Max Weber's famous definition of the state as the monopoly on violence (Das Monopol der legitimer Gewaltsamheith) the state did not confiscate all the weapons. The exercise of force was authorized by or permitted by the state which means by law. See amicus, Appendix H. Self-defense, the NRA's present demagogic appeal, is a permissible use of force long recognized in law. We put before the Fifth Circuit that there is no conflict in principle between gun ownership for self-defense and accountability to public authority. See .../emerarg.html#III. Creating legal categories of gun ownership that effectively disarm the lawless and the disloyal is how gun owners defend themselves under law and government. That is why we have law and government. No common agreement on sovereign public authority produces a domestic arms race. A domestic arms race fulfills the anarchic libertarian fantasy and provides the gun lobby opportunity to prey on fear and suspicion to promote gun ownership for individual self-defense. There can be individual gun ownership on the slippery slop to anarchy. There is no individual self-defense in the state of anarchy. See amicus, The Rule of Law,

The eighteenth century militia was a very different civic concept from the malignant, extreme individualist vision the armed populace doctrine will force on us now. When there was a threat to the community in the eighteenth century the political leaders commanded every man to be armed, undergo training, be on a roster and be available to guard, usually without pay, against the threat. The King had required the same before the Revolution as the Militia Act of 1792 required after. The gun lobby's own pseudoscholars admit this when they are being intellectually honest. See .../196gnd.html and Kates in our Appendix I in Emerson. The militia gave structure and the militiaman gave obligation to the community. The NRA would rabidly oppose any proposals to implement such practices now.

So how do we get there? The great libertarian fear is government coercion. The way we minimize government coercion is to use free institutions. We use free institutions to get out all the relevant information, conduct rational, informed public debate, arrive at a consensus and let policy follow. That is the way the system is supposed to work. Participation in free institutions is the antidote to malignant individualism. We don't cynically sneak in an agenda through demagoguery and fraud. The conceptual foundations of firearms policy are very simple: There can be no constitutional right to outflank this government with "armed citizen guerrillas". Because the conceptual foundations for firearms policy have been neglected for so long, the system has to work the way it is supposed to work to produce a national firearms policy. Citizens have to decide that they are citizens. We have to get citizenship right first. Intellectually the choice is rather simple. There has to be common agreement on the contours of citizenship as part of a viable legal political order. Common agreement is a matter of fundamental law. It is as fundamental as the Constitution itself. Common agreement cannot be decided in legislative committees or in the legal technicalities of court decisions.

The armed populace doctrine brings the libertarian fantasy and whether or not we have political community at all into full relief. This is where we address the fundamentals which the politicians, the news media (.../news.html, .../sixtymin.html, .../bcabcnra.html, .../washpost.html), the gun control organizations and the public health lobby have demonstrated their inadequacy to bring up. Concerned citizens have to take up the burden on general principles and become a constituency for law and government. It starts here. There are also two directly affected important constituencies. One is respectable republican businessmen when they realize that they need law and government more than they need the NRA's "armed citizen guerrillas" patrolling their neighborhoods. This constituency is misled by the Wall Street Journal which is now the biggest promoter of gun rights ideologies among the national media even ahead of what the NRA calls the "rabidly antigun" Washington Post

The other is minorities who live in crime ridden neighborhoods where public authority, if present at all, is an occupying force. See .../398respc.html. The need for serious political discourse is urgent among both, but the political leadership that will articulate the fundamentals for either constituency has yet to emerge. See .../cong5.html.

One of the great lessons of the Potowmack Institute has been that only passionate minorities are energized and involved. The Potowmack Institute has not heard from much from anyone else. Some hot debate. An unenlightened public, however, cannot be blamed as long as the NRA calls the "rabidly antigun" Washington Post refuses to print what James Madison was really describing in Federalist Paper No. 46. If we cannot get this one right, we prove the maxim of the conservative French political philosopher Joseph D'Maistre, toute nation a la gouvernement qu'elle merité, "Every nation has the government it deserves." Which is better in amended form: "Democracy guarantees that every people get the government they deserve." Getting citizenship right is where we receive our political education and find our political adulthood for the twenty-first century.

[The Gun Lobby, NRA]
[The Gun Controllers]
[A National Firearms Policy]
[The Rightwing Movement]
[The Pseudoscholarship]
[The Socialist Agenda]
[Individual Sovereignty and Libertarian Fantasy]
[The Liberal Collectivist Leviathan State]
[The Road to Serfdom]
[Restoring Law, Government, and Public Trust]

[PotowmackForum], interactive posting
[NRA v. Reno (July, 2000)]
[US v. Emerson PAGE]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
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