Introduction
Addressing gun violence is not a tempest in a progun/antigun culture teacup. It involves the most fundamental issues of law, government, and citizenship. A commentator described the recent attempt at constituency building in the Million Mom March as an "emotional force" to counter the gun lobby's emotional force. Making policy on fundamental issues requires knowledge and conceptual foundations as much as conviction and emotional force. The knowledge and conceptual foundations are provided here. The Potomac Institute (Md.) hopes that a long overdue, emerging constituency is educating itself.
Efforts to address gun violence up until now have derived from public health strategies: gun safety modeled after improvements in automobile safety and sue the gun manufacturers modeled after sue the tobacco companies. The efforts although enjoying enormous political and financial support evade the fundamental issues and in the end promote the political cynicism the gun lobby thrives on. The Violence Policy Center's statement on registration and licensing is an example of where the public health models lead.
Extreme individualism is at the center of contemporary American rightwing politics. In his 1984 book That Every Man Be Armed the NRA's Stephen Halbrook formulates a doctrine of "libertarian republicanism." We can take libertarian republicanism as the unofficial, if not the official, doctrine of the National Rifle Association. The operating concept of libertarian republicanism is individual sovereignty. The personal right to arms is the right to individual sovereignty. Individual sovereignty is a plank in the Libertarian Party Platform. Individual sovereigns by defintion do not consent to be governed. The Constitution is reduced from a frame of government with "just powers" that derive from the consent of the governed to a treaty among sovereign individuals who give no more than word of honor and promise of good faith. Positive law become a code of ethics— we hang the Ten Commandments on the wall— without powers of enforcement until the code has been violated. We then apply draconian punishment as an example to others who might stray. It is a prescription for authoritarian justice. The extreme individualism leads exorably to political cynicism. Political cynicism is nowhere more evident than in gun rights politics.
The antidote to political cynicism is public enlightenment. We use free institutions to get out all the relevant information, conduct rational, informed public debate that arrives at a consensus, and let policy follow. The personal right to arms outside of any legally authorized or permitted purpose is now seeking certification in US v. Emerson on appeal in the US Court of Appeals, Fifth Circuit. Oral arguments were held June 13. The ruling should be out by September. The Potomac Institute raises the fundamental issues in its amicus curiae brief in Emerson. This is where the gun lobby has met its opposition. Regardless of how the court rules, Emerson is an opportunity to open public debate and raise public consciousness on what is really at stake in gun rights, extreme individualist ideologies, and the gun lobby's armed populace fantasy.
The ideologies are full of unobserved contradictions. It should be no consolation to the gun rights militants that the rightwing agenda in the federal judiciary has been a more mundane libertarian concern with the expansion of federal authority under the Commerce Clause than the incorporation of individual gun rights under the Fourteenth Amendment as a defense against the oppression of any and all government. See amicus brief.
The children of anarchic darkness have nothing to fear as long as no one has heard of US v. Emerson or what is at stake in the courts. The Million Mom March, an emerging constituency, advocates reasonable gun laws based on registration and accountability. This is an improvement over public health strategies, but the public health strategies still have a pervasive presence. When the politicians speak of solutions they cannot get away from gun safety. The advocacy for registration has not yet defined itself and formulated an agenda for effective, consciousness-building legislation.
Registration is the only means by which gun ownership can be effectively regulated. Registration means accountability to public authority. It means accommodating to the existence of public authority. It means the consent to be governed and accommodating to the fundamental relationship between citizen and state. Accountability to public authority is the one point of policy the armed populace fantasy cannot handle. Registration is the one thing the National Rifle Assocation works hardest to prevent. The strategy is sophisticated. It can be observed in pp. 38-43 in the NRA's Stephen Halbrook's petition in support of Sheriff Printz in Printz and Mack (1997). See also the Citizens Committee for the Right to Keep and Bear Arms' amicus brief in Emerson and the NRA's petition to the US Court of Appeals, DC Circuit, in NRA v. Reno (July, 2000). These arguments derive from Stephen Halbrook's ariticle "Congress Interprets," U. Tenn. Law Rev., Summer 1995.
Failure to appreciate what the gun lobby wants and what it fears is to pursue illusions. Addressing gun violence is not for softees and soft heads with an incoherent sentiment that something has to be done. It won't be address by sneaking a nice sounding bill through Congress.
Addressing gun violence has to be polarized around a strong position on accountability or not and build and educate a constituency around the position. There are three handgun registration bills in Congress for the next session. The Feingold-Meehan Bill in the House and Senate and the Jack Reed Bill in the Senate. The texts of these can be found by searching http://thomas.loc.gov for "SB-2525", "HB-4915", and "SB-2099" These bills will be big items in the next session. The present need before any enactment has to be to build a constituency for law and government by conducting public debate over what is really at stake. The present bills are long on federal regulation and short on public education. The bills will likely fail. As they stagnate they will open the possibility to pursue what we need for a national firearms policy. What is needed is much simpler and more practical and has more solid political and constitutional foundations. What is needed for political leadership is much more aggressive.
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