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Insert July 5, 2008.

The Heller opinion is at http://www.potowmack.org/hellerSC.pdf.

In his Parker opinion, Judge Silberman cites Judge Kleinfeld's dissent to the rehearing of Silveira,
http://www.potowmack.org/silveira.html
twelve times.

By affirming Silberman's Parker opinion the Supreme Court embraces indirectly Kleinfeld's dissent.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/019661EF3BAAF4C488256D1D00793D3A/$file/0115098o.pdf?openelement

As the Potowmack Institute pointed out in our Parker amicus,
http://www.potowmack.org/parkarg.pdf
the Silveira dissent, speaking of "an amorphous body of the [armed] people as a whole", is sheer anarchy. On rereading, the dissent is much worse than it originally appeared especially since it has received sanction by the Supreme Court. This is all really quite confused and nonsensical. The "amorphous body" is still subject to "reasonable regulations and restrictions" and registered like the jury pool for call-up. The issue is whether there is any political leadership to make sense out of the absurdity.

The DC Gov did not need to take Parker/Heller to the Supreme Court.
http://www.potowmack.org/heller.html
http://www.potowmack.org/parker.html
The gun rights ideologies had already lost in the appeals court.

The gun rights crowd is getting worried. This isn't what they thought and hoped for. There is a reason why the NRA worked very hard to sabatoge Parker/Heller.
http://smallestminority.blogspot.com/
Scoll down to July 2.

It all gets down to a pair of very simple questions. Let's ask these to presidential candidates starting with Republicans who pander to the gun vote, starting with John McCain. No one should be insulated. Disney/ABC had the questions in April when the Democrats were on the platform. What is so difficult about this?:

******************

The DC Court of Appeals released an opinion on March 9, 2007, in Parker et al. v. DC Government. After many pages in which the court fabricated an individual right to be privately armed outside of any militia or military context and struck down DC's gun control law, Judge Silberman arrived at these conclusions:

Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability. These are the makings of a firearms policy. The Supreme Court has affirmed his conclusions. Do you accept and support Judge Silberman's conclusions? Will your administration work towards a national firearms policy based on these conclusions?

************************

Can we now at long last start talking about the civic obligation that was manifest in the original militia concept?


http://www.potowmack.org/vpc-reg.html
updated 03/08/2008

Assaulting Jim Zumbo

The NRA on Extremists

The NRA scams its members

The Lionel Show
AirAm Radio's ignorant, crude, ugly,
air waves barbarian
Dear John Ashcroft
The armed populace doctrine at the DOJ
The Washington Post
cultivating ignorance.
Gun Policy News
news stories compiled daily.
"Sixty Minutes"
Failing its Mission
NPR's Diane Rehm
Civilized without Substance.
A longstanding dereliction.
AFL-CIO
Getting it right but
failing its mission in the
larger struggle
Militia Act of 1792
To enroll— conscript, register

Return of Militia
Inventory of private weapons in
the early Republic reported to the
President of the US
History
John Kenneth Rowland
Lawrence Cress
John K. Mahon
Others
Pseudohistory
LaPierre's list

The Quotes, the Quotes
Fabricating the armed populace doctrine
Libertarians, Conservatives

Tenn. Law Rev., 1995

Chicago-Kent Symposium, 2000
What does the NRA want?


Briefs have been filed in DC Gov. v. Heller to the Supreme Court.
http://www.potowmack.org/heller.html
The Violence Policy brief is included.

Violence Policy Center's licensing and registration page:
Falling in line with the NRA.

Original file at:
http://www.vpc.org/fact_sht/licreg.htm

The title of Sidney Blumenthal's 1986 book is The Rise of the Counter-Establishment. (His chapter 12, "The Second Coming" is now in our "Archive".) The Counter-Establishment is what the Potowmack Institute has called the "The Rightwing Movement". We can also call it the "Libertarian Right". If there is a Counter-Establishment there must be an Establishment. The Establishment is more fully the "Liberal Establishment" or simply the "Political Establishment". The Liberal Establishment is the loose collection of centrist institututions that came together in the mid-twentieth century mostly as a result of the transformations of political institutions and policies during the New Deal, the Second World War and the Cold War. The Liberal Establishment gave us the modern state. The modern state involved at least five transformations of constitutional proportions of American political life in the twentieth century.

We find the dry leaves of the Liberal Establishment now in the Democratic Party and a few fellow traveling moderate Republicans who have not been purged out the Republican Party. The Liberal Establishment stutters and stammers to define itself against the rightwing Counter-Establishment. The Counter-Establishment is the rightwing insurgency that grew out of interests that never accommodated to the expansion of federal authority in the mid-twentieth century to transform the United States into a modern state capable of performing on the world stage as a great power, managing an industrial economy, and securing liberty and justice for all. On sweeping ideological principles not need or national interest, they never really accepted the modern state or even the twentieth century. The struggle between the Establishment and the Counter-Establishment in policy terms is between Austrian School/Chicago School/Milton Friedman/Friedrich Hayek free marker utopian unregulated capitalism and New Deal/social democracy/Keynesian/regulated capitalism. The critical issue is the role of a government authority. There is a parallel between regulating an economy and regulating guns.

The struggle is between elites. We might call them the elites of the "Capitalist Right" (Liberatian Right) and the "Capitalist Middle" (mixed economy, regulated capitalism) ("Capitalist Left" would make no sense). In this struggle the people become an inertial mass that is nudged about ever so slightly in one direction or another by public relations techniques without admitting any issues of substance. The AFL-CIO produced an important paper, " The Right Wing Attack on the American Labor Movement", but it is an internal document. It is not part of public argument.

Elites of whatever pole don't want the people participating in their political destiny. If the traffic on this website and the narrow confines of public consciousness on gun rights in the midst of what is supposed to be a great public debate are any indication, the elites don’t have to worry. The people aren’t engaged in any substantive way. The Potowmack Institute was at the Million Mom March in 2000 and 2004 and could not find a single person out of hundreds asked who had heard of the gun rights cases in court.

What is at stake in gun rights and gun violence, meanwhile, is very simple and obvious. It involves the fundamental relationship between citizen and state. The struggle is now in federal court. It goes back to the US v. Warin case in the 1970s and is now more recently reemerged in US v. Emerson (1999),
Silveira v. Lockyer (2002),
Nordyle v. King (2003),
Parker et al. v. DC Gov. (2003-2007),
Seegars et al. v. DC Gov., Ashcroft (2003-2006).

The Liberal Establishment has apparently decided that the people cannot be trusted with fundamental choices. To escape fundamental political choice, the prevailing models that have been developed for addressing gun violence derive from public health models: "gun safety" modelled after improvements in automobile safety and suing the gun manufacturers modelled after suing the tobacco companies. This is where the establishment, centrist foundations are putting their money. They are not supporting discussions on the contours of citizenship. The New England Journal of Medicine, for its public health contribution, refused to print the submission at .../addressi.html way back in 1994. That submission might have helped elevated debate above the false consciousness, false choices, and false strategies, bumper sticker slogans and sound bite demagoguery we suffer now.

The Violence Policy Center takes a prominent place in the arguments. It does not have a membership. It is supported by establishment foundations. The gun rights militants demonize the Violence Policy Center as "gun grabbers" and "gun haters," but just as Charlton Heston and the NRA owe a debt of gratitude to the news media they demonizes, the gun rights militants owe a debt of gratitude to the Violence Policy Center for evading the real issue. The real issue is what the gun lobby really wants. What it wants is to keep gun ownership outside of accountability to public authority, outside of the knowledge and reach of law and government, so as to maintain the "armed populace at large" fantasy, to maintain a balance of power between a privately armed populace and any and all government. The Constitution is reduced from a frame of government to a treaty among sovereign individuals. The NRA actually argued for the "armed populace at large" in its amicus brief to the Supreme Court in Perpich (1990). The fantasy is that this arrangement is at all viable. At best, it involves a hedge on the consent to be governed that puts the citizen in a civic limbo half in and half out of political community. It gives us political cynicism. The Liberal Establishment and the VPC will avoid the political substance.

Accountability to a governing authority means specifically registration of gun ownership. Registration establishes the relationship between citizen and state. Registration is the one point of policy the armed populace fantasy cannot accommodate. It is what the NRA works hardest to defeat. The fruits of the effort are described in pages 39-43 of the NRA’s Stephen Halbrook’s petition for Sheriff Printz in Printz and Mack (1997). See Appendix D of Potowmack Parker amicus brief

Citizens are under law and government. When individual sovereigns in the State of Nature, which is the state of anarchy, enter into political community they give up precisely the natural right to exercise force except as authorized or permitted by law. See Steven Heyman article in the Chicago-Kent Symposim. See also the Potowmack Institutes amicus briefs in Emerson and Parker. See also Appendix A in Potowmack Parker amicus. This is the Weberian concept of the state's monopoly on violence. Parker is now in the Supreme Court as DC Gov. v. Heller, Sup. Ct case no. 07-290. The Potowmack Institute intends to file a brief in Heller to further develop the arguments in Parker and Emerson. Filing costs money. Please help.

Just because we do not have the political leadership to make the simple point does not mean we cannot make it here. The fundamental right to be privately armed is now in federal court in the cases cited. The VPC, in the midst of this struggle over fundamental concepts, did not file a brief in Emerson. The great problem is that the gun rights claimants have not gotten what they want in the opinions of the courts that have been decided so far. The great hedge is "reasonable restrictions." But, it is much worse. In Parker, after many pages of fallacious pap about an individual right to be privately armed outside of any military or militia purpose, Judge Silberman arrived at these conclusions:

Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability: These are the makings of a national firearms policy. They are also a devastating repudiation of the gun lobby's core doctrine. The gun lobby, led by the NRA, who fight viciously any attempts to implement Silberman's policy conclusions.

Taking up fundamental political issues means— in principle, if the results are to mean anything, actually requires— including the people. We use free institutions to get out all the relevant information, conduct rational, informed public debate, arrive at a consensus on a national firearms policy that makes sense, that is consistent with citizenship under law and government, that is enforceable and which most players including gun owners and gun manufacturers can support. That is the way the system is supposed to work. Arriving at a consensus through rational, informed public debate is completely necessary for firearms policy. We actually have a great opportunity to improve the public health of the body politic. Instead of Judge Silberman's conclusions we get trigger locks, political cynicism, and small-minded culture war politics.

The VPC makes its case:

So far so good.

The VPC sees registration and licensing as a given system not as instruments to achieve policy goals. There is also no appreciation that the Instant Check system was created by the NRA to deflect attention away from what it really wants, to maintain the "armed populace at large". The VPC does not make arguments that are any threat to the armed populace fantasy.

Licensing can impose all kinds of restrictions. Licensing however is the business of state and local government. The business of the Federal Government is to empower local jurisdictions by shutting down the illegal traffic between and among jurisdications and to maintain the internal sovereignty of the United States against the NRA’s "armed citizen guerrillas" who would outflank it. As Judge Silberman says, we can have registration for militia call up. We don't have now a need for militia call up, but that purpose is completely consistent with the Militia Act of 1792. The purpose then was military preparedness. Regardless of the need, there would be nothing unconstitutional about other purposes. Does anyone think that if there was suddenly a great national need for militia call up the Congress would hesitate? When the US went to war, it did not hestitate to enforce national conscription with the Selective Service Act of 1917.

This system could be expanded to include all guns. The VPC seems to endorse the idea but goes on to marginalize its relevance and usefulness in preference to the public health goals its foundation supporters are paying for.

The existing federal registration system was created under the National Firearms Act of 1934. It was upheld in US v. Miller et al. (1939). The constitutional authority for registration was that it is a mechanism for taxation. Most authority for federal gun laws derive their authority from the Commerce Clause. The far more important authority can be found in the original militia concept as manifest in the Militia Act of 1792, enacted by the same people who ratified the Second Amendment. The Militia Act required the states to "enroll"— that is, conscript, register— militiamen for militia duty. It also required the militia officers to maintain inventories of their privately owned weapons and report them to the state governors and to the president of the United States. The Militia Act did not create a system of registration and licensing that we would recognize. What it did establish is that there was no constitutional protection for a right to be armed outside of the knowledge and reach of lawful authority. There was no concern in the early republic to maintain a contingent of extralegal armed force, the "armed populace at large", of private individuals as a balance of power against any and all government. Contrary to present gun lobby claims, there would be no constitutional barrier, accurately understood from early militia practices, today for Congress to declare all the weapons in the society to be a militia resource to be called out for public duty, to require appropriate local authorities to maintain inventories of the weapons in the society, and report those inventories to the president and Congress. The VPC has not educated the public on this simple point.

It would also be a process where we decide if we are citizens under law and government with duties to the common good. See Emerson amicus. and Parker amicus. It would mean that when we pledge allegiance to the flag and to the Republic for which it stands, we surrender up, in John Locke’s words "the executive power of the law of Nature", which is the law of anarchy, which is the law of the jungle. And, we give to the public the right to "imploy" our "force" to "execute the judgments" of the political community. It would mean that we are not individual sovereigns, laws unto ourselves, in the State of Nature who give no more than word of honor and promise of good faith.

The VPC is so completely committed to a "comprehensive" public health strategy that it does not even bother to explain why these are not goals worthy of a "comprehensive" policy.

The benefits of licensing described here, however, are part of state and local police functions. The business of the Federal Government is to shut down the illegal traffic between and among local and state jurisdictions. That can only be accomplished through an enforceable policy of registration and reporting of private sales.

The purpose of this example is to defeat any interest in a firearms policy that is outside of the public health strategy the Liberal Establishment and the VPC have committed themselves to. We can have trigger locks and sue the gun manufacturers but we cannot raise issues of fundamental political choice and affirm that we are citizens under law and government and not individual sovereigns in the State of Nature. According to these figures it cost $327 million (Canadian) to register 142,000 additional guns in Canada. This means it cost $2303 (Canadian) to register one additional gun. Just how inefficient is bureaucracy in Canada? Maybe the Canadians should come to Maryland where the Potowmack Institute is located and study motor vehicle registration. Motor vehicles are not the same as guns but the comparison is useful. There are three levels of motor vehicle registration and licensing. 1) Title: transfer fee is $15 plus a 5% excise tax on the value of the vehicle; 2) Current registration: $83.50 for two years; 3) Operator’s permit: $20 for five years. The VPC needs to explain a little more about its figures and what its real agenda is.

The VPC introduces another excuse not to raise fundamental political issues. As long as there are large numbers of guns in society there will be guns used for suicide and homicide and there will be unintentional shooting and accidents. The large numbers of motor vehicles produce the same outcomes. Does the VPC and the Liberal Establishment think we should abandon all schemes of regulation for motor vehicles? In Switzerland there are more guns in the general population than in other European countries. Although gun related deaths and injuries are miniscule by American standards, they are higher in Switzerland than in other European countries. Deaths and accidents in Switzerland are lower than in the United States because there are strict systems of both military and civilian accountability. There is also a growing movement to limit access to guns. The NRA most certainly and the VPC apparently would oppose any similar systems of regulation here.

Most importantly, however, registration and licensing establish the mechanisms for the "just powers" of government to address the climate of fear the gun lobby preys on to promote gun ownership. Reducing the climate of fear and suspicion which inspire many to own guns for self-defense may be the most effective way to reduce all forms of gun related deaths and injuries. The NRA cannot win its armed populace fantasy in court. It needs a certain level of violence to promote gun ownership so it can then appeal to gun owners votes to defeat legislation.

Still another evasion. What is wrong with bringing every gun owner into the fray? The biggest present cynical gun lobby appeal is to the individual self-interest of self-defense. The way we defend ourselves under law and government is to create legal categories of gun ownership that can be applied against the lawless and the NRA’s "armed citizen guerrillas" who want to maintain the childish political fantasy that they have a civil right, secured by this government, to "outflank" this government— that is, commit treason. Why can’t we have a policy that says we need to confiscate gun from the lawless, the disloyal, and those who threaten treason? That is why we have law and government. Before gun owners can find their security under law and government they first have to decide that they are citizens under law and government and not individual sovereigns in the State of Nature which is the state of anarchy. Has anyone polled NRA members on how much they subscribe to the armed populace doctrine? We also need a government that can decide that it is a government with "just powers" which have to include the "just powers" to defend itself from the "armed citizen guerrillas" who would outflank it.

The VPC’s "comprehensive health and safety regulations of the firearms industry" evades these rather serious matters. The Liberal Establishment is paying for this and puts itself in the same camp with the NRA. The NRA does not want the fundamental political issues raised either. Its biggest problem is to maintain its respectability in the midst of the extremists in gun lobby ranks who really do want to have a right-to-arms as a right to insurrection. Like the NRA, the VPC and its Liberal Establisment foundation supporters will give us struggles over marginal issues like trigger locks. They will give us bad laws, like the DC gun control law now before the Supreme Court, which will give us bad court decisions further compounding the political cynicism. Political cynicism is the arena where the gun lobby is most experienced and most effective.

The VPC has not demonstrated why this is the "comprehensive" approach. The gun manufacturers are part of the problem. They are also part of the solution. Colt Manufacturing has proposed a national system of permitting and training. The proposal gets no mention from the likes of the VPC and has gone nowhere in public discourse but the mere proposal puts Colt Manufacturing way out in front of the Violence Policy Center.

This argument is exactly the NRA argument. The NRA wants the discussion to stop right there.

The three levels of registration and licensing in Maryland described above include taxation. There is 5 percent purchase or transfer tax on a title. It can be a large sum on a new vehicle, but it is really no different from any other sales tax. Title, however, is also proof of ownership and a mechanism to enforce the responsibilities of ownership. The current registration fee is mostly tax but current registration also is a mechanism to enforce mandatory liability insurance. Proof of insurance is required before current registration will be issued. The tags must be physically turned in to the Motor Vehicle Administration the day before insurance is cancelled. Stiff fines are provided for noncompliance. The operator’s permit involves no tax and is a mechanism to enforce some kind of standards for driver competence and responsibility. Driving on a revoked or suspended license in Maiyland will get immediate jail time. The NRA doesn’t want any similar provisions provided with meaningful powers of enforcement for lawful gun ownerships and lawful use. The NRA does not have to worry that there will be any threat from the VPC.

How about forcing some changes in the gun ownership and gun use environment like defining enforceable difference between legal and illegal gun ownership and use?

Mothers Against Drunk Drivers did not have to start out by repudiating the absurd consciousness that rules and regulations are a ban and establish the principle that regulation is constitutional. The legal means were already available through registration and licensing to apply safe and responsible motor vehicle operation standards against drunk drivers. Pages 39-43 of the NRA’s petition on behalf of Sheriff Printz describe the NRA’s efforts to defeat any legislation that would lead to registration and powers of enforcement going back to the 1930s. MADD’s problem was to get the existing laws enforced and in some cases strengthen. The VPC seems to think that the problem was solely with the automobile manufacturers.

The VPC does not even have consumer products safety standards available as applied to guns. Handgun Control's report The Enforcement Fable documents how NRA efforts to defeat any powers of enforcement for guns or gun ownership have also defeated consumer product safety standards. If the VPC wants to have guns included in a comprehensive system of health and safety regulations it has take on the armed populace fantasy. The armed populace fantasy cannot accommodate to any jurisdiction of public authority over guns or gun ownership.

Public health is the Liberal Establishment way. The VPC will elevate public health strategies above all other issues in order to avoid any issues of fundamental political values. Registration and licensing don’t ignore anything however. Registration and licensing are essential to the enforcement of the public health policies the VPC is sold on. Accountability of ownership through sensible, enforceable registration and licensing alone will reduce gun violence, accidents and deaths far more than any public health proposal if these can be used to create a civic culture of public trust and political obligation.

No one says it should substitute. Accountability to public authority is the central issue in the gun lobby’s doctrine of political liberty. It has to be the first requirement for any comprehensive program of firearms regulations.

What is really missing from the VPC/Liberal Establishment public health strategies is a consciousness that we can have any discussion on fundamental political values or concepts at all. That is the biggest source of the problem. Why that is the case should be a primary concern of an enlightened citizenry.


[PotowmackForum], interactive posting
[TOP]
[HOMEPAGE].
[NRA v. Reno (July, 2000)]
[US v. Emerson PAGE]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
[Parker et al. v. DC Gov. PAGE]
[Seegars et al v. DC Gov., Att. Gen Ashcroft PAGE]
[ARCHIVE]. Potowmack Institute Files
[RESOURCES]. Newspaper, magazine, journal articles, books, links

© Potowmack Institute