Comments on the Potomac Institute's National
Firearms Policy
Part 2: Second Amendment Scholarship and the Historical Record
Part 1: "Individualism" -- Tocqueville, the Framers, and "soccer
moms"
Part 3: "The People" -- Rowland, Gordon Wood,
and the Second Amendment
By John Crouch, Attorney at Law, Arlington, Virginia
Copyright John Crouch 1998
Other Crouch Articles
Amendments 1 through 8 all are directed at the things governments do FIRST
when they set out to become tyrannical and unaccountable to the majority
-- silencing religion and the press, mass disarmament, quartering soldiers
in homes, lawless searches and arrests, kangaroo court trials without due
process, fair procedure or juries. Emphasis is of course given to the kinds
of things the British Crown did right before the Revolution. If the Founders
had been doing this in 1946, the list would have been longer.
The Founders had no interest in returning to a violent "state of nature".
They
believed a widely-exercised individual right to keep arms was necessary
as a
civic function, for the good of society as a whole, and of course believed
that people with arms, like anyone else, were subject to law, to
civilization, and to basic rules of behavior, and had duties as citizens
to
protect each other's freedom and safety. However, these were obligations
whose
existence did not depend on the particular government that the people had
chosen. In fact, the government was subject to these things just as much
as
individuals were. The Potomac Institute, conversely, appears to assume that
all rules and social organization were wholly invented and made possible
by a mythical single, unitary, eternal
Government, to which there is no alternative but the lawless chaos of a
"state of nature".
The Institute is right in criticizing the various militia crazy groups which
are
out there doing their own thing and setting up their own competing governments
on our territory. The only thing is, hardly anyone agrees with those guys
except themselves. There's no connection between them and people publishing
books and law review articles. The Freemen get their ideas from non-lawyers
trying to do legal research and coming up with whole systems of "common
law" based on some judge's offhand comments about something totally
else in one case from the 1790s. They use the same techniques as the people
who send out junk mail offering, for a very small fee, to prove that you
don't have to pay income tax or parking tickets or can shelter all your
assets in a "common law trust." The Institute, however, acts like
it's a great coup when it discovers that the NRA, libertarians and law professors
"admit" that they don't agree with the militiamen on key questions.
Of course they don't.
The Institute's stuff about 18th-century militias being state-controlled
is solid, but
again, nobody contests that. The point is not relevant as a criticism of
the
pro-gun mainstream unless he can demonstrate that the 2nd Amendment only
protects militias.
The Institute doesn't seem to have any substantial criticism of second amendment
legal scholars. It calls them pseudoscholars instead of debating them on
a
scholarly level, says they are connected to foundations it doesn't like,
and
gets them mixed up with guys in compounds in Montana. There certainly are
psudoscholars, but they're out there starting republics, printing money,
and running newsgroups
and web sites, not teaching at Top 20 law schools.
The written record indicating what the Founders believed -- not about the
legal nature of particular institutions and entities, not about philosophical
"natural law" doctrines, but their practical beliefs on what was
necessary to preserve democracy and ordered liberty -- is just huge and
undeniable. It overwhelmingly supports the second amendment scholars. The
Founders wrote about this issue all the time, and it's unmistakenly clear
what they believed, no matter how much or how little context you include.
The record reflects consensus on this basic
maxim of political economy, and this is not called into question by the
fact
that the Founders had myriad differences on legal and fiscal provisions
concerning militias and how to accomodate Quakers without disarming them.
(My commentary draws on what I learned as a American History major concentrating
on the eras of the revolution and the constitution in Brown University's
very rigorous
and book-heavy program under Gordon Wood, Bill McLoughlin, and Jack L. Thomas.)
Part 1: "Individualism" -- Tocqueville, the
Framers, and "soccer moms"
Part 3: "The People" -- Rowland, Gordon Wood,
and the Second Amendment
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