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

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http://www.potowmack.org/supct1.html

Intro: The Libertarian Fantasy on the Supreme Court

Clarence Thomas and Antonin Scalia

Their Sources

G. Eyclesheimer Ernst

[Rand]
[Hayek]
[Thomas in Printz]
[Scalia, A Matter of Interpretation]

Brief mention can be made of Thomas' ideological origins. In "Ayn Rand Was Wrong: It Turns Out There Is An Afterlife After All," the lead story on the front page of the Style section of the Washington Post, August 25, 1996, staff reported William Powers wrote:

But even Ayn Rand had a great appreciation for civil society, the requirements of a viable legal political order and organized protection against force. The Virtues of Selfishness (1963), p. 108-109:

The Potowmack Institute while not subscribing to Rand's Objectivist ideology, can nevertheless claim Rand as high authority for the national firearms policy it recommends. Ayn Rand understood that her beloved capitalism needed law and government and a civic culture to function. The demand that gun owners be armed outside of the law, which the gun lobby works so hard to have as its policy goal but which no court has ever sanctioned, carried to its logical conclusion, as Rand makes clear, is a prescription for anarchy— and Hobbesian lives that are "solitary, poor, nasty, brutish and short."

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[Rand]
[Thomas in Printz]
[Scalia, A Matter of Interpretation]

Even Friedrich Hayek would agree. Hayek, the same as Ayn Rand, is on every libertarian reading list. His The Road To Serfdom (1944) was a seminal warning on the encroachments of "collectivism" that are the source of much rightwing apprehension. The Road to Serfdom contains a chapter titled "Planning and the Rule of Law." For Hayek the rule of law meant fixed rules, as in John Locke's "known settled standing law," as opposed to arbitrary power. Hayek wrote:

The armed populace fantasy does not necessarily remove the coercive power of the executive organs from fixed law but puts along side that power a rival power in arbitrary private hands with no guarantee and protections other than good faith and word of honor.

The personal right is making progress in the courts without public examination or contradiction. Thomas and Scalia absorb the gun lobby/libertarian pseudoscholarship but with qualifications. Their understanding does not offer the protection from confiscation that the gun lobby seeks. Consistent with libertarian concerns about central authority but not all authority, they will only limit the regulatory schemes of the Federal Government not the states. The states in these opinions could impose severe gun control restrictions and gun owners could expect no Fourteenth Amendment protection from the Supreme Court. What would be missing are powers of enforcement. If Thomas and Scalia would get it right they would find the powers of enforcement in the Second Amendment and the Militia Act of 1792. The Second Amendment, "properly understood," as Scalia wants it but fails to get it, was about military organization not personal rights. To "bear arms" describes a military function. The Militia Act of 1792 ordered the states to "enroll"— that is, register— gun owners for militia duty. The right guaranteed was the republican jus militiae, the right of the people, as citizen soldiers, to participate in the military functions of the state rather than leave those function up to the regular army. A national firearms policy that required the states to register gun owners and enforce reporting of private sales would provide enforcement powers to local jurisdications by shutting down the illegal traffic. Although the purpose would be different, the policy would be in concept consistent with the Militia Act of 1792, "properly understood."

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[Rand]
[Hayek]
[Scalia, A Matter of Interpretation]

Printz v. Mack, Thomas, concurring


The Supreme Court of the United States

Nos. 95-1478 and 95-1503

JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA, PETITIONER
v.
UNITED STATES

RICHARD MACK, PETITIONER
v.
UNITED STATES

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT

[June 27, 1997]

JUSTICE THOMAS, concurring.
The court today properly holds that the Brady Acts the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory program." See ante, at 25. Although I join the Court's opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited powers. See e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819)("This government is acknowledged by all to be one of enumerated powers"). "[T]hat those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only where the Constitution authorizes it to do so. Cf. New York v. United States 505 U.S. 144 (1992).

In my "revisionist" view, see post, at 3, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power "to regulate Commerce...among the several states," does not extend to the regulation of wholly intrastate, point-of-sale transactions. See United States v. Lopez, 514 U. S. 549, 584 (1995) (concurring opinion). Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must "temper our Commerce Clause jurisprudence" and return to an interpretation better rooted in the Clause's original understanding. Id., at 601; (concurring opinion); see also Camps Newfound/Watonna, Inc. v. Town of Harrison, 520 U. S. ___, (1997) THOMAS, J., dissenting).

Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that "substantially affect" interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress's regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from "prohibiting the free exercise" of religion or "abridging the freedom of speech." The Second Amendment similarly appears to contain an express limitation on the government's authority. That Amendment provides: "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. (note1) If, however, the Second Amendment is read to confer a "personal right" to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. (note2) As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries 1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Second Amendment.

note 1: Our most recent treatment of the Second Amendment occurred in Unites States v. Miller, 307 U. S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to posses a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.

[But the lower courts have and the Supreme Court has let the lower court rulings stand as valid and of no further interest. Thomas mentions no Fourteenth Amendment incorporation which the "personal right" would have to involve. He mentions no limitations on regulatory schemes by the states. The real issue as national policy is the role of the Federal Government in providing enforcement powers to the states. See A National Firearms Policy.]

note 2:Marshalling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984); Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. See., e.g., Bogus, Race, Riots, and Guns 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L. J. 551 (1991); Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989); Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 j. Am. Hist. 22 (1984). Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate.


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[Rand]
[Hayek]
[Thomas in Printz]

Antonin Scalia, A Matter of Interpretation (1997)

Text, pp. 42-43: Properly understood the Second Amendment does not add up to a "personal right" to be armed outside of accountability to public authority. Even Scalia's proper understanding does not help out the gun lobby with a fundamental right to protection from confiscation by state government, and as long as the Constitution defines treason as the waging of war against the United States its provisions for rights cannot help out the armed insurrectionists. The Second Amendment has to be understood and interpreted as a civil right under law and government not a revolutionary right in the State of Nature.

Neither Scalia nor Thomas demonstrate any appreciation that citizens with arms are under law and government not individual sovereign in the State of Nature which is the state of anarchy. Scalia does not explain if his "right to bear arms for self-defense" is a right under law and government or a right in the State of Nature. The right to personal self-defense is the basis of the gun lobby's most successful present demagogic appeal. The insurrectionists interpret the right to self-defense as a right against the goverment itself. Regardless of whether the regulatory scheme is imposed by state or federal authority there has to be a "balance between individual freedom and social order." How the personal right Scalia seeks in the Second Amendment comports with the "social order" he does not explain.

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[Rand]
[Hayek]
[Thomas in Printz]
[Scalia, A Matter of Interpretation]


[PotowmackForum] interactive posting


Second Amendment in Court, Index
Emerson, Hale, Wright, Nelson, City of Renton, Eckert, Rabbitt, Pencak, Warin, Miller, Oakes
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