It's not about guns...
It's about citizenship
The Potomac Institute
PO Box 5907, Bethesda, MD 20824-5907
http://www.potomac-inc.org/index.html
Contact: G. Eyclesheimer Ernst
potomac@potomac-inc.org
Press Conference
Murrow Room, National Press Club, Wash, DC, Oct 29, 1999, 9am
Potomac Institute as amicus curiae in US v. Emerson
http://www.potomac-inc.org/emeramic.html
The terms of gun ownership and measures to address gun
violence are not a progun/antigun tempest in a culture war
teacup. They involve the most fundamental issues of law,
government and citizenship. These issues which are as
fundamental as the framing and ratification o the Constitution
itself are at stake in US v. Emerson,
http://www.txnd.uscourts.gov/PDFs/emerson.pdf
In a ruling on the Lautenberg Act, the federal District Court has
found in the Second Amendment a "personal right" to be armed
outside of any military, militia or legally authorized or permitted
purpose. The ruling confounds all precedent. The ruling is now
with the US Court of Appeals, Fifth Circuit, case no. 99-10331.
The docket can be followed at http://www.ca5.uscourts.gov. The
Potomac Institute has filed ts amicus curiae with the Fifth
Circuit in support of the prosecution.
The District Court has based its ruling on a volume of gun
lobby/libertarian specious political advocacy presenting itself as
"scholarship" which fabricates the "personal right" out of a very
false reading of intent and historical context. The ruling is the
culmination of a long, patient effort to put over a fallacious extreme
individualist doctrine of political liberty on the courts and the
public. The Second Amendment was not about a "personal right"
to be armed outside of lawful authority and did not "codify" the right
to revolution into the Constitution as the District Court has asserted
and many gun rights militants sincerely believe. Meanwhile, the true
scholarship on the Second Amendment and 18th century militias,
ignored by the aggressive pursuit of the "personal right" political
agenda, has been produced by a small number of objective,
intellectually honest historians. The Second Amendment and the
Militia Act of 1792 (http://ww.potomac-inc.org/emerappc.html) were
about the disposition, distribution and organization of armed force in
the early republic. The "personal right" cannot claim the Second
Amendment as its source and authority. Militia duty was conscript
duty. The true legacy of the Second Amendment is the citizen
soldier of twentieth century selective service acts which combined
in a national system of conscription the citizen soldier of the
militia with the professional soldier voluntarily enlisted in
the regular army. To "bear arms" has a military meaning.
The Potomac Institute's recommendation for a national firearms
policy is accountability of gun ownership to public authority--
which means specifically registration of ownership--and reporting
of private sales. The purpose would be to shut down the illegal
traffic so local jurisdictions would be empowered to enforce local
rules and regulations. The purpose would be different but the
concept would be much the same as the Militia Act of 1792
which required the states to "enroll"--that is, register--militiamen
and their muskets for militia duty. Accountability to public
authority, however, is the one thing the "personal right" cannot
accommodate and the NRA works hardest to prevent.
Addressing gun violence ultimately is not about public health
statistics, gun safety and/or manufacturer liability. It involves a
reaffirmation of the contours of citizenship under law and
government. If the District Court's "personal right" acquires legal
credibility it will lead to a redefinition of the fundamental
relationship between citizen and state and will reduce the
Constitution from the fundamental law of a government with
"just powers" to a treaty among sovereign individuals who give
no more than their word of honor and promise of good faith.
Gun rights militants are following this case with great attention.
The Fifth Circuit's ruling will be out next spring just in time to
introduce the fundamentals into public discourse during the
election season. The fundamentals come up for renewal every
few generations. They are up for renewal now. Whether or not
they can be addressed is a measure of the viability of the
political culture.
Regardless of how the Fifth Circuit rules, Emerson presents
the opportunity to pose to holders and candidates for public
office the question: Are gun owners citizens under law and
government or are they individual sovereigns, laws unto themselves,
in the State of Nature which is the state of anarchy? With the
follow-up, please explain the difference. Individual sovereignty is
a plank in the Libertarian Party Platform. Stephen Halbrook, who
has argued for the NRA before the Supreme Court, formulates a
doctrine of "libertarian republicanism" in That Every Man Be Armed
(1984). Individual sovereigns by definition do not consent to be
governed. They make a treaty not a government. The
conceptual foundation for firearms policy is found in the
difference between citizenship and individual sovereignty.
Holders and candidates for public office might also explain what
is the obligation of an oath of public office to maintain the
internal sovereignty of the United States against insurrectionist
fantasies and against the hedge on the consent to be governed
contained in the "personal right."
See Potomac Institute's amicus curiae. Other briefs have been
filed. Defense briefs are due at the Fifth Circuit October 29.