Leviathan, Gun Control And The Baleful Legacy Of The 2nd Amendment

Let me be clear from the outset. I vehemently oppose Big Government and Nanny State regulation, but also have no use for guns, find hunting distasteful and wish that James Madison had never dreamed up the Second Amendment while politicking for the Constitution. The so-called right to bear arms is truly a vestigial relic of the 18th century and has precious little to do with personal liberty or public security in the 21st century.

At the same time, I doubt whether any more Federal gun controls are possible or would reduce gun crimes against innocent citizens in a nation where 380 million guns—-40% of the world’s non-military total—-are already in circulation. In that respect President Obama is doing far more harm than good in his ceaseless agitation for tighter gun regulations and his latest feckless gambit to extend them via executive order.

That’s because with zero political consensus for legislative action the only impact of Obama’s provocations is to fuel the conservative anti-gun control crusade. Yet the latter is truly misbegotten; it amounts to a monumental waste of political energies and resources against the wrong target.

The real threat emanating from our Federal Leviathan is not the non-existent boogeyman of gun confiscation or abridgement of the dubious right to bear arms. What is running unchecked like never before is Imperial Washington’s penchant for taxing, spending, borrowing, regulating, meddling, money printing, and foreign intervention and military adventurism.

It’s almost as if the Left has baited conservatives into a diversionary  political battle over guns—–the better to leave Leviathan unhindered in its unwarranted, unjust and unproductive intrusions upon the economic and social life of the American people.

Indeed, by battling for extraneous causes like Second Amendment rights, along with rearguard attacks on the purely private matters of abortion and gay marriage, today’s so-called political conservatives have largely abandoned the battle where it counts. That is, on the essential front line of economic freedom, sound money, fiscal rectitude and the parsimonious extension of state power.

In that respect, rather than falling for a grand but pointless battle over guns, true conservatives would be far better advised to attack the source of gun violence where it might actually make a huge difference. To wit, there is no imaginable regulatory scheme that can prevent the massive inventory of guns in the US from falling into the hands of criminals and psychotics.

Accordingly, the better course of action would be to dramatically shrink the scale of the criminal enterprise by wholesale decriminalization of drugs—-all of them. So doing, Washington would at once rollback the state from an area that is none of its business, while transferring the drug distribution business from El Chapo to Phillip Morris.

Indeed, seconding the drug trade to the non-violent salesmen, deliverymen, warehousemen, and business managers of the tobacco companies would eliminate more crimes and gun violence than any conceivable scheme of background checks, registration and firearms regulation.

The truth is, there are about 10,000 gun based homicides in the US per year, and one recent study by Narco News estimated that up to 10% were directly due to drug trade based killings. But that’s not the half of it.

The giant global network for illegal drug trafficking is like any other state enabled monopoly. The artificial scarcity created by drug prohibition creates monumental windfall revenues that enable the El Chapo’s of the world and their vast networks of distribution to recruit, train, fund and reward the largest private armies of killers and criminals that the world have ever seen.

In many lower income communities especially, the ranks of the drug distribution pyramid amount to an open air crime school. Likewise, domestic prisons populated with up to 500,000 mostly small time distributors or users amount to graduate schools for the same.

In short, the NRA slogan that it’s people not guns which kill surely needs amendment. What really kills is bloviating legislators and Congressmen who keep passing drug prohibition laws which prodigiously fund the heart of organized criminal enterprise in the United States.

Yes, the US Constitution—–as battered and impaired as it is—–is still the bulwark of our liberties and the ultimate restraint on the aggrandizing impulses of the modern state. But the constitution and its 27 amendments contain 7,591 words, and all of them are not created equal.

In fact, the following 27 words are among the very least important and do not rank even close to the First, Fourth, Fifth and Tenth Amendments in the hierarchy of liberty’s safeguards:


A lot has transpired in the 225 years since these words were ratified and duly certified by Secretary of State Thomas Jefferson in 1791——among them the rise of hunting for sport and the public’s fear of criminal intrusion on their person and property. But the second amendment has no more bearing on these contemporary matters than it does on the right to fly a kite.

The tip-off is the governing clause and predicate which makes clear that the amendment is all about assurance of a “well regulated militia”, and, in fact, involves an archaic 1780’s argument between Federalists and anti-Federalists that has nothing to do with the contemporary notions of an individual’s right to own firearms for the purpose of self-protection, hunting or target shooting.

To make a long story short, the articles of confederation had put defense of the nation in the hands of the state militias; the new constitution shifted the power to raise a standing military and arm the state militias to the Federal government (Article I, Section 8); and Madison’s deft Second Amendment compromise was designed to reassure anti-Federalists that the state militias could not be disarmed by an aggrandizing and tyrannical central government.

Indeed, it cannot be emphasized enough that the whole debate was about how to organize the government’s instruments of military violence as between citizen based militias at the state level and a professional standing army at the Federal level.

Thus, the Articles of Confederation had placed this obligation primarily on the former:


By contrast, Section 8 of the Constitution not only authorized the Federal government to raise a standing army and navy, but also empowered it to call up the state militias in order to execute the laws of the union, repel invasions and to even suppress domestic insurrections. Furthermore, it shifted control of the militias to the Federal government, granting Congress the powers of—–


In that context, the anti-Federalists harkened back to King James II, the last Catholic King of England who attempted to disarm the protestant militias in the 1680s, and to British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution.

Against that kind of tyranny, Noah Webster, among many others, explained the reason for the Second Amendment in a nutshell:


The founders’ pre-occupation with preserving the role of citizen based state militias could have not been made more strikingly evident than in a key legislative enactment less than one year after the Second Amendment was ratified. This law provided for the “National Defence” by establishing a “Uniform Militia” throughout the United States, and mandating universal enrollment in the state militias.

The very words of it tell you that it had nothing to do with Ducks Unlimited or the NRA’s soporific propaganda about the Second Amendment:


Folks, a musket, bayonet, two spare flints and a knapsack have nothing to do with either national defense or individual liberty in this day and age. For better or worse, the era of the citizen militia is over and done; and the fact that we even waste public funds on the state based national guards is nothing more than a tribute to nostalgia and pork barrel politics.

So the Second Amendment belongs in a museum along with the muskets and knapsacks of the ancient state militias. No one in the right mind can argue that in the face of the modern state’s insuperable monopoly on high tech military violence that an armed citizen insurrection would lead to anything more than a proliferation of government massacres like those at Ruby Ridge and Waco Texas. Ballot boxes, not bullets, are the only present day recourse against a tyrannical government.

Unfortunately, the gun lobby has ripped the second amendment from its historical moorings and invented out of wholecloth an individual right to bear arms for purposes unrelated to revolutionary era militias. But as former Chief Justice Warren Burger observed as recently as 1991, the idea of an individual right to bear arms is—

one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special-interest groups that I have ever seen in my lifetime.”

Needless to say, that did not stop a 5/4 Supreme Court majority from embracing just that in Justice Scalia’s rambling, incoherent exercise in Constitution writing in the 2008 Heller decision. Against Scalia’s verbose ruminations, Justice Stevens cut to the chase for the minority:

“…..the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”.

And that gets to the next issue——the domestic policing function. Needless to say, the Constitution was not written by anarchists, even if the vast majority of the Founders were imbued with a republican distrust of state power.

Accordingly, they contemplated that the powers reserved to the states included the protection of their citizens’ lives and property by means of criminal statutes and their enforcement by duly constituted officers of the law and courts. Indeed, that is at the very core of the appropriate functions of the state; and along with the common defense against invasion, it is the valid basis for levying taxes.

Nowhere in the constitutional debates or the subsequent practice of the American Republic was there a vigilante do-it-yourself notion of law enforcement or idea that the first line of defense against criminal assault was armed civilians. Even in the frontier west, people banded together to hire a sheriff who was sworn to uphold the laws of the state and to whom the function of protecting citizen lives and property from criminal intrusion was delegated.

Yes, contemporary America is plagued with an inordinate amount of crime against persons and property, but the idea that a gun in every closet is therefore warranted and an indispensable element of public safety and security is wholly specious; it is a product of contemporary NRA and gun lobby propaganda, not historical precedent or even practical assessment.

To be sure, there is no reason for the state to tell Michelle Obama’s lonely farm wife in the boondocks of Iowa that she can’t have a gun for self-protection. Nor for that matter should it deny a Park Avenue lady who lunches the freedom to have a pistol in her dresser drawer——- or the liberty to fly a kite or smoke a joint, either.

But that’s private liberty and much to be treasured. It’s not law enforcement, however, or a meaningful element in improving public safety. For that we need to liberate the cops.

That is to say, clear the criminal code of victimless crimes and social regulation. Enable the police forces and courts to focus their time and resources exclusively on prevention and punishment of crimes against the persons and property of citizens by third parties who violate the law.

The fact is, law enforcement today is drastically overburdened and distracted by the pursuit of innumerable victimless crimes including the classic trio of drugs,  prostitution and gambling. Without the absolute stupidity of the nation’s 45-year war on drugs, for example, the DEA would not even exist, El Chapo would have been chopping chickens in La Tuna, and “Breaking Bad” wouldn’t have lasted even one season.

Likewise, the massive enterprise of enforcing gambling laws and other anti-vice statutes and the underworld of crime it spawns actually gets more preposterous by the day. This very day we have a significant share of the population and media hyperventilating about a $1.3 billion Powerball jackpot where the odds are 380 million to one; and a shameless publicity mongering New York Attorney General who has seen fit to protect the public weal from the apparent scourge of fantasy football—–a game of chance if there ever was one.

So why in the world does a nation of gamblers persist in prosecuting illegal gambling? Again, clear the statutes, eliminate the gambling underworld of violence and free the cops to pursue real criminals.

Finally we get to the truth that there is an arguable police function with respect to guns, but it’s scope is far smaller than Team Obama would have us believe. The fact is, there is not an epidemic of gun violence in America that is any business of the state or that can be fixed by an appropriate exercise of its police powers.

In his town hall last week the President actually clarified the matter, even if inadvertently. The problem is suicide, not homicide. There were 33,000 gun deaths during 2013 in the US, but 21,175 of them were suicides, and another 1,000 or so were due to accidental discharges or other undetermined reasons.

But if people choose to kill themselves or be careless, that is none of the state’s business—–nor could regulation of one means—-firearms—- by which such tragedies are accomplished make any difference. After all, you would need to regulate rope and strychnine, too. The statistics show that each year 7,000 people take their lives by poisoning and another 11,000 by “suffocation” aka, hanging.

In fact, it would appear that in a typical year there are more suicides by hanging than there are homicides by guns. And that comparison is even more telling when you consider that some considerable share of the 10,000 or so annual homicides stem from activities such as drug distribution, gambling and prostitution that would not involve any murders at all had they not been driven into the criminal underground by the proscriptions and prohibitions of the state.

Still, there is one angle on gun control that fully merits exercising the domestic police powers of the state. First, there ought to be a stiff automatic surcharge on the ordinary sentence of anyone using a gun in the commission of a crime against the person or property of another citizen.  Deterrence is a legitimate and necessary component of the law enforcement function.

Secondly, it should be illegal upon a stiff penalty——-whether you are a national sporting goods chain, mom and pop gun shop or doing a friends and family transaction—–to sell a gun to any person who has been adjudicated as mentally ill or is undergoing active psychiatric treatment.

And if you want to be in the gun selling business, the burden of proof is on you! Freedom of commerce is the essence of capitalist prosperity and is to be protected at all hazards. But you are not free to emit poisons into the waters or air, either deliberately or by “accident”. Nor should you be free to sell guns by accident to the next whacko who decides to attack the innocent public at an elementary school, mall or movie house.

Finally, keep Barack Obama and every other Washington official, lobbyist and hanger-on out of the equation entirely. The national debate over gun control is so metastasized that nothing good can come of a single additional word from Washington on the topic.

On this matter, the great American jurist, Louis Brandeis, has the last word. He was right. The states were meant to be “laboratories of democracy”, and most especially in the matter of criminal law and the domestic policing function. And surely it is not beyond their capacity to use such powers to keep guns out of the hands of psychotics or to lock away criminals who turn firearms on innocent citizens.

Obviously, such a sensible path is way too much to be hoped for because what remains of the political Left has thrown in the towel on the Warfare State and foreign military adventurism; when it comes to the scourge of killing and violence, it has effectively retreated to its feckless campaign against guns to rally the troops and raise the political loot.

So the misbegotten liberal campaign to strengthen gun laws will continue and the even more misbegotten NRA and conservative crusade in behalf of the Second Amendment will flourish.

What a baleful legacy!

A feature of the Constitution which was designed to forestall the rise of Leviathan in a different time and place has been transformed by modern day right wing politicians into the helpmate of the 21st century Leviathan that actually reigns, largely unchecked, on the banks of the Potomac.

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