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

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http://www.potowmack.org/supct2.html

Intro:The Libertarian Fantasy on the Supreme Court

Thomas and Scalia

Joyce Lee Malcolm, Stephen Halbrook, Don Kates, Joseph Story's "palladium of the liberties of a republic," Blackstone's Commentaries

G. Eyclesheimer Ernst

[Halbrook]
[Blackstone]
[Joseph Story]
[Supremacy of Law]

Clarence Thomas lists Don Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review 203 (1983), #14 on LaPierre's list. The "personal right" in Kates does not include a right to be armed outside of accountability to public authority. He wrote p. 265:

Kates' intellectual honesty that the militiamen were accountable to public authority and were armed for the state or as the state not against the state causes apoplexy in gun lobby extremists like Stephen Halbrook. Kates has three articles on LaPierre's list second to Halbrook's five. Halbrook denounced the passage from Kates above in "To Bear Arms for Self-Defense: Our Second Amendment Heritage," American Rifleman, Nov., '84. Halbrook's problem with political authority is quite explicit. Joyce Lee Malcolm, Van Alstyne, Clarence Thomas, and Scalia, in their devotion to the "personal right," show no appreciation of the conflicts within the gun lobby itself.

Clarence Thomas cites the pseudoscholarship of Stephen Halbrook who argued Printz and Mack for the NRA before the Supreme Court and to whom the Potowmack Institute has given much attention (See .../196rehm.html, .../196fp46.html, and .../196locke.html) as one proponent in what Halbrook describes as a public debate. Thomas also lists Van Alstyne, Robert Cottrol, Sanford Levinson, and Don Kates. (See Wayne LaPierre's list in Guns, Crime, and Freedom and all quote James Madison's words from Federalist Paper No. 46 out of context to mean something very different from what they mean in context.


None mention the true scholars of the Second Amendment, militias, and citizen soldiers:

John Kenneth Rowland, .../potowmack/1197row.html, previously unpublished PhD dissertation, Ohio State, 1978.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 (jus militiae) and professional 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. Now in our Archive
John K. Mahon, History of the Militia and the National Guard, (1983)

Also, a very readable, informative, historically accurate perspective from a politician who is not a professional historian but who did spend many years on the Senate Armed Services Committee:
Gary Hart, The Minutemen (1998), chapter 4, "The Republic and the Militia."


Thomas and Scalia also list the pseudoscholarship of Joyce Lee Malcolm. Malcolm's review of Halbrook's That Every Man Be Armed is #10 on LaPierre's list. LaPierre does not mention that Malcolm's is a very critical review, but she is not critical because Halbrook is a fraud and a charlatan who repeatedly lifts words out of context and gives them new meaning (See .../196fp46.html, and .../196locke.html). She is critical of Halbrook for not making a better case. Malcolm does not examine Halbrook's intellectual dishonesty and offers no critique of his "libertarian republicanism." By not challenging Halbrook's doctrine she gives it her endorsement.

[Kates]
[Blackstone]
[Joseph Story]
[Supremacy of Law]

Halbrook's doctrine is found on p. 9 of That Every Man Be Armed:

According to this doctrine the citizens have to be armed first then they consent to be governed. Presumably they keep their guns outside of the reaches of the political community which means they never consented to be governed at all. Is this what Malcolm endorses? A little explanation is in order.

One of Malcolm's favorite quotes is from Blackstone's Commentaries. She put it this way before the House Subcommittee on Crime April 5, 1995: "[Blackstone] saw the people's right to be armed as their protection when 'the sanctions of society and laws are found insufficient to restrain the violence of oppression." These words are used by Halbrook and many others. It is as important to look at these words in full context and the context of their time.

Blackstone's Commentaries was published in 1763, a quarter of a century before the American Revolution. An overview of the transformation from the political concepts of the pre-American Revolution British Constitution to the concepts of the US Constitution of 1787 is provided in .../1197row.html. This transformation is described in great detail by Gordon Wood in The Creation of the American Republic (1969). Blackstone's "violence of oppression" was in the context of the rulers and the ruled as separate estates of the realm in the British Constitution. In the US Constitution the rulers and the ruled became one and the same (.../1197row.html) and Blackstone's "violence of oppression" lost its meaning and its context.


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[Kates]
[Halbrook]
[Joseph Story]
[Supremacy of Law]


Blackstone's Commentaries

The Rights of the People

Blackstone defines the three absolute rights of Englishmen as the rights to personal security, personal liberty, and private property. "[T]o protect and maintain the[se] three great and primary rights," there have been "established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers." Blackstone's observations only make sense in the context of concepts of the British Constitution where the rulers and the ruled were separate estates of the realm. The King's army was a standing army composed of mercenaries, foreigners (Germans in the American Revolution), and social outcasts and misfits. They only knew the military life and were regarded by the people with suspicion although no one questioned the royal prerogative to maintain a regular army. The militia were the local, rooted people led by respectable men of rank and property. Blackstone's rights are described in this context, Book I, p. 141:

    1. The constitution, power, and privileges of parliament, of which I shall treat at large in the ensuing chapter.

    2. The limitation of the king's prerogative, by bounds, so certain and notorious, that it is impossible he should either mistake or legally exceed them without the consent of the people....Of this also, I shall treat in its proper place.

    3. A third subordinate right of every Englishmen is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty and property, courts of justice must at all times be open to the subject, and the law be duly administered therein....

    4. If there should happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course of law is to defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances....

    5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2. c.2, and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression [by the rulers].

    In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank and property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having not other object upon which it can possibly be employed. To preserve these from violation, it is necessary, that the constitution of parliament be supported in its full vigour; and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attached, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of laws; next, to the right of petitioning the king and parliament for redress of grievances; and lastly, to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gently and moderate, as will appear upon farther inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens...

Blackstone's consciousness requires cognizance of other passages in the Commentaries. Book I, page 415:

    To prevent the executive power from being able to oppress, says baron Montesquieu, it is requisite that the armies with which it is entrusted should consist of the people and have the same spirit with the people; as was the case at Rome, till Marius new- modelled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. Like ours, it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; soldiers also should live intermixed with people; no separate camp, no barracks, no inland fortresses should be allowed. And perhaps it might be still better, if by dismissing a stated number and enlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together.

    To keep this body of troops in order, an annual act of parliament likewise passes, "to punish mutiny and desertion, and for the better payment of the army and their quarters." This regulates the manner in which they are to be dispersed among the several innkeepers and victuallers throughout the kingdom; and establishes a law martial for their government. By this, among other things, it is enacted, that if any officer or soldier shall excite, or join any mutiny, or knowing of it, shall not give notice to the commanding officer: shall desert, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands: such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself.

Blackstone wants a strong connection between the citizenry and the soldiery but does not have much tolerance for the mutinous "armed citizen guerrillas" the NRA would have outflank their own government. Blackstone's consciousness was a balance of power between the people, the ruled, and the royal prerogative, the rulers, within the eighteenth century British Constitution which had lost its relevance to the American political system in 1787.

When Joyce Lee Malcolm cites the fifth and last auxiliary right above she leaves out the part about "the natural right of resistance and self-preservation." Natural rights and civil rights are two different things. Malcolm appears to be giving her support to the right to self-defense the gun lobby uses in its present appeal to defeat legislation. Self-defense is already a right guaranteed and protected in law, but it is not an excuse to be armed outside of the law. The right of resistance is still a natural right subject to "necessary restraints" and to be exercised in extremis as the Second Amendment Foundation described it in Warin. It is not a civil right that can be guaranteed by government. Having arms for their defense was a right "suitable to their condition and degree" which meant that it was class based. It was also as allowed by law.

Joyce Lee Malcolm's "decent respect for the past" does not require that she mention the militia acts of the early republic or the Whiskey Rebellion. These should be of interest to Thomas and Scalia. Malcolm does describe the "origins of an Anglo-AMERICAN right." Malcolm had the conceit to tell the House Judiciary Committee's Subcommittee on Crime on April 5, 1995, that there were no historians to argue with any more. Malcolm is a professional historian. Her truth seeking responsibility is to know the literature on the subject she examines.


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[Kates]
[Halbrook]
[Supremacy of Law]


Joseph Story, Commentaries, (1833)

Many people who lived through the American Revolution and participated in it did not understand the transformation in political concepts the Revolution achieved. It would not be remarkable if many others failed to understand the transformation in political concepts. By citing Blackstone it is not clear that Story fully understood what had happened either.

Story goes on from his description of the "palladium of the liberties of a republic" to lament that the militia was falling into disuse because the people were losing interest in the right to participate. The decline of the militia was expected by the Federalists. They wanted to build a viable nation with national power. They knew the military force had to be based on a national military force and the militia was useless to that purpose. The transformation in political concepts that was achieved in the US Constitution also meant that the militia no longer served its theoretical function as a balance of power between the rulers and the ruled as separate estates of the realm as it had in the British Constitution and in the consciousness of Blackstone and the Anti-Federalists. There was no longer a right of the people to consent through Parliament to be ruled by royal prerogative now that the rulers and the ruled were one and the same. The Federalists could concede the Second Amendment as a political accommodation to the Anti-Federalists because they knew it would have disappearing relevance in the new nation. See .../1197row.html. The struggle for the Federalists was over ratification of the Constitution not the definition of words. The disappearance of the militia did not mean the disappearance of liberty. The true legacy of the Second Amendment was embodied in the Selective Service Act of 1917 which for the first time combined the citizen soldier of the militia through a national system of conscription with the regular army. In the twentieth century we have described are armed forces as being composed of citizen soldiers and been proud of the condition and performance as such. The American anti-military tradition which survived up to the Second World War meant that American armed forces have usually been small in peacetime and composed of citizen soldiers in times of war. Even the NRA embraces the armed forces of the United States and describes itself as an auxiliary to the military. Witness the Civilian Marksmanship Division.

Story on the Second Amendment

Story's words "system of militia discipline" and "to be rid of all regulations" imply that the militia was a military organization and the discipline and regulation were imposed from above by law. They do not emerge from the militiamen themselves. The natural defense against "domestic insurrection" refers more explicitly to the NRA's "armed citizen guerrillas." Story does not give any more instructions on how to address the circumstance when the usurpation and arbitrary power comes from the these "armed citizen guerrillas" when it becomes their design to subvert the government. We saw it in the twentieth century with the Nazi Party's Stormtroopers.

Story on Treason

Story describes how the "history of England itself is full of melancholy instruction on this subject," and goes on to explain that:

So what is the difference between violent factions and potentially violent factions like the NRA's "armed citizen guerrillas" who insist upon a personal right to be armed outside of the law and offer us nothing more than their word of honor that they are not violent or potentially violent?

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[Kates]
[Halbrook]
[Joseph Story]

Story on The Supreme Law of the Land

In citing these sources, Thomas and Scalia reveal uncritical thinking and the predisposed gullibility of true believers in the libertarian fantasy. Their version of the libertarian fantasy and the personal right appears to be more directed at a limitation on the federal government than the authority of the states to regulate gun ownership. They don't seem willing to extend Fourteenth Amendment protection to the personal right they find in the Second Amendment that would protect gun ownership from the confiscation the gun lobby fears if it is undertaken by the states. The issue has not come up yet whether the Federal Government following from the Militia Act of 1792 can treat the guns in the society as a national resource and require the states to make inventories of— that is, make a registries of— gun owners and their guns for militia duty. The Potowmack Institute makes a policy recommendation along those lines.


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[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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