Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition (1/3)

[Note on the hypertext version of this document. The hypertext version differs from the original print version of this document in the following ways: 1. A few small typographical errors are corrected. 2. Two endnotes contain boldface correction of statements made in the original. 3. Most importantly, the hypertext edition is loaded with hyperlinks. If a person, group, or event is mentioned in the text or endnotes, there is often a link to a relevant webpage. If a Supreme Court case or a statute is cited, there is link to the full text, if the full text is available on-line. If a cited law review article is available on-line, there is a link to the article--usually at the Second Amendment Law Library. If a book is mentioned, there is link to the full text of the book (if the book itself is available on-line), or to the Amazon.com page for the book. The majority of links are in the endnotes, rather than the main text. Of course the existence of a link should not be taken as an endorsement of everything said on the linked page. We hope that the rich links enhance your experience.]

Introduction				439
I.	The Communitarian Network and Domestic Disarmament			441
		A.	The Communitarian Agenda	441
		B.	The Communitarian Movement	443
		C.	The Case for Domestic Disarmament	445
II.	The Feasibility and Communitarian Implications of Domestic Disarmament			450
		A.	Guns and Other Dangerous Items	454
			1. Noncompliance of Law Enforcement Personnel	456
			2. Resistance	458
			3. Overwhelming and Ruining the Criminal Justice System	460
			4. "Nasty Things May Happen": Armed Resistance	461
		B.	Country, Court, and the Crisis of Legitimacy	469
		C.	Summary	474
Advance to Part Two
Advance to Part Three

Introduction

It is high time for the federal government to outlaw gun possession by anyone except the police and the military, and to round up all firearms currently in private hands. Millions of Americans think so, but even the most aggressive of America's gun control groups have not been willing to advocate such a policy. Into the breach has stepped the Communitarian Network, arguably the most influential think tank in Washington. In a lengthy position paper, The Case for Domestic Disarmament (Domestic Disarmament), [1] the Communitarian Network presents a forceful law-and-policy case for a gun-free America.

Domestic Disarmament is noteworthy because it is almost the only scholarly document arguing at length for confiscating all guns, [2] rather than merely outlawing the future production of certain "bad" guns (such as handguns and so-called "assault weapons"). [3] Domestic Disarmament is particularly important because it is a product of the Communitarian Network, the think tank that, far more than any other, has the ear of President Clinton and many other leading Democrats (and *440 some Republicans). [4] Moreover, Domestic Disarmament offers an entirely new vantage point from which to view the firearms issue--from the communitarian context, in which the individual's responsibilities to society are seen as more important than the unlimited exercise of rights. [5]

This Article evaluates and responds to Domestic Disarmament and the Communitarian Network's gun prohibition agenda. In addition to discussing Domestic Disarmament, this Article considers David C. Williams's Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, [6] which calls for a somewhat different communitarian approach to gun policy. Williams argues that (1) the Second Amendment poses no impediment to any form of gun control on individuals, [7] and (2) in the long term, the government should revive the "well regulated Militia" [8] and encourage citizen proficiency with arms and participation in communal defense organizations. [9]

Part I of this Article provides an overview of communitarianism and the Communitarian Network and summarizes the argument of Domestic Disarmament. Part II inquires into whether domestic disarmament is enforceable and what communitarian problems may be raised by enforceability issues. Part III sketches a variety of possible solutions to the American gun dilemma, including the communitarian militia proposals of Williams. [10] Part IV briefly reviews the contribution that firearms ownership may make to public safety, and Part V closely scrutinizes *441 Domestic Disarmament's conclusion that the Second Amendment presents no barrier to firearms confiscation. [11]

For too long, the American gun control debate has avoided the most fundamental issues. The progun and antigun lobbies both agree that there are "good" gun owners and "bad" gun owners; the main issues concern drawing a line between the two and determining what kinds of measures should be used to keep the two groups separate. In addition, the antigun lobbies argue that there are good guns (many types of rifles and shotguns) and bad guns (handguns and assault weapons) and that no gun control policy should deprive good Americans of their good guns. [12] Nevertheless, none of the major policy groups participating in the American gun debate argues, as does the Communitarian Network, that America's gun policy should be modeled on Japan's, in which communitarian values prevail, guns are almost entirely prohibited, and gun violence is rare. [13] By forcefully raising the issue of whether any Americans should have guns at all, the Communitarian Network performs a great service by inviting inquiry into the most fundamental premises of the American gun control debate. In this Article, the authors hope to advance the inquiry begun by Domestic Disarmament.

I. The Communitarian Network and Domestic Disarmament

A. The Communitarian Agenda

The Communitarian Network is a public policy think tank founded upon the philosophy of sociologist Amitai Etzioni, a professor of American Studies at George Washington University. [14] Dr. Etzioni is joined by a number of like-minded academics, many of whom *442 enjoy close connections to the Washington political establishment. [15] The Communitarian Network's mission is to address what it considers the baneful societal effects of an imbalance between individual rights and social responsibilities. [16] The United States, argue communitarians, has become a place where responsibilities no longer accompany rights to the extent they once did, resulting in a fragmented society in which irresponsibility, selfishness, and violent crime run rampant. [17] These socially deleterious effects of an unrestrained individualism must therefore be reversed through the advocacy and implementation of new policies designed to further the common good. [18] The Communitarian Network's slogan is "strong rights presume strong responsibilities." [19]

Communitarians also argue that parents should forsake consumerism, personal advancement, and greed. [20] Workplace reforms such as paid parental leave and flex schedules should be mandated. [21] Additionally, communitarians propose making it more difficult for couples with children to divorce. [22] Advocacy of an increased emphasis on moral education in the nation's schools is another element of the communitarian message. [23] Schools should "teach those values Americans share," [24] such as "the values of civility, sharing, and responsibility to the common good." [25]

The Communitarian Network also advocates a number of other public policy ideas to increase public virtue and advance the common good. Included among these are campaign finance restrictions and a heightened emphasis on the importance of voting, jury duty, and paying taxes. [26] Among the most controversial proposals are the implementation of widespread sobriety checkpoints, [27] less privacy for HIV *443 carriers, [28] and mandatory organ harvesting from deceased persons who had not expressly forbidden the government from appropriating their organs. [29]

B. The Communitarian Movement

The Communitarian Network does not exhibit the scholarly indifference of the ivory tower. "Like a scientist in a laboratory," writes the Philadelphia Inquirer, Professor Etzioni "has a three-step formula for changing society. Step One, create the message. Step Two, spread the message. Step Three, organize a grassroots movement." [30] The Communitarian Network has created an activist arm to implement its ideas on a grassroots level: the American Alliance for Rights and Responsibilities. There is also a communitarian journal, The Responsive Community. The journal's subtitle includes the communitarian mantra "rights and responsibilities." [31] The communitarians have written several books. [32]

Professor Etzioni's movement has especially piqued the media's interest because the communitarians exercise a great deal of influence on the Clinton Administration. [33] Indeed, candidate Clinton's "New Covenant" speech was drafted in part by communitarian philosopher *444 William Galston. [34] Dr. Etzioni opines that President Clinton is a communitarian to the core. [35]

Communitarians insist that they are not majoritarians and that any scheme to further the cause of community rights must be constitutionally sound. [36] Critics, however, accuse them of being disingenuous. Many skeptics charge that communitarians are actually apostles of a new statism and that the Communitarian Network is misleading *445 its readers when it denies that majoritarian coercion will be necessary to achieve many of its goals. [37] Whatever communitarians are, they are something new to the American political scene. [38]

C. The Case for Domestic Disarmament

The Communitarian Network's papers on gun control call for severe firearms legislation, based upon the premise that the right of individuals to keep and bear arms (which really is not a right at all, it is argued) is outweighed by the right of the public to be safe. The position is summarized in The Responsive Communitarian Platform: Rights and Responsibilities (Platform): [39]

*446 This position is developed in the Communitarian Network position paper dedicated solely to the issue of gun ownership, Domestic Disarmament. The paper's argument is summarized in five propositions:

1. Legal analysis shows there is no individual right to keep and bear arms guaranteed in the Second Amendment to the United States Constitution; [41]

2. Permitting individual gun ownership in this country causes thousands of injuries and deaths every year and, therefore, poses an inordinate threat to public safety; [42]

3. Polls indicate that the vast majority of Americans want some forms of additional gun control legislation; [43]

4. The gun control proposals currently advocated (waiting periods, registration, and the like) will not adequately mitigate the damage gun ownership causes to the American community; [44]

5. Therefore, because there is no constitutional right of individuals to keep and bear arms, America must adopt laws even stricter than those in Europe, Canada, and Japan. [45]

As a first step, Domestic Disarmament calls for a ban on the sale and possession of handguns and so-called "semiautomatic assault weapons," as well as a prohibition of all ammunition that can be used in *447 these firearms. [46] (This latter requirement would outlaw virtually all ammunition, because handguns and assault weapons come in a nearly limitless variety of calibers.)

Making some breathtaking assumptions about the ease with which the government will collect more than 200 million guns and many billion rounds of ammunition from at least 50 million gun owners, [48] Etzioni proposes the following experiment designed to set the policy in motion:

Thus, to Etzioni, the answer to gun crime is simple: implement a national policy that entails the virtual prohibition of most firearms and ammunition, beginning with a ban on assault weapons and handguns, and eventually encompassing all firearms and ammunition in private hands.

There are some indications that the Clinton Administration, following the communitarian lead, is thinking along similar lines. Although President Clinton has stated his opposition to a ban on hunting weapons, he has at least indicated support for most of the rest *448 of the Communitarian Network's agenda on guns. In particular, he put an immense amount of political capital into passing the 1994 federal ban on assault weapons. [50] After that year's elections, he opined that the assault weapons ban had cost the Democrats twenty seats in the House of Representatives, thereby giving control of Congress to the Republicans. [51] Nevertheless, said President Clinton, he would sacrifice his own reelection to maintain the federal ban. [52]

In addition, President Clinton ordered Attorney General Janet Reno to draft a comprehensive proposal for strict national handgun licensing. [53] A White House working group outlined a proposal for highly restrictive licensing of all handguns and all semiautomatic long guns that have not already been banned, and much more stringent controls on all other firearms. [54] In a 1993 interview, President Clinton *449 stated that he favored a ban on all handguns, but that he recognized such a ban was not currently politically feasible. [55] The Federal Bureau of Investigation (FBI) and President Clinton have begun pushing for broad new restrictions on ammunition. [56] Finally, Henry Cisneros, the Secretary of the Department of Housing and Urban Development (HUD) during President Clinton's first term, was a signer of the Platform manifesto before accepting his post in the Clinton Administration. [57] Were his views sharply out of step with those of the President (for example, had he signed a document calling for a complete ban on abortion), it is doubtful that he would have remained in the Cabinet.

II. The Feasibility and Communitarian Implications of
Domestic Disarmament

Communitarians, including President Clinton, argue that the presence of so many guns in America makes it the most dangerous country in which to live. [58] Rhetorical flourish is employed to drive the point home: "[T]he danger that our cities be turned into Beiruts or Dubrovniks must be averted." [59] The gun control proposals that have been enacted into law and those that are currently the subject of political discussion are but "vanilla-pale measures," according to Etzioni; to him, the only truly effective measure to end gun violence is domestic disarmament. [60]

Many criminologists agree that the enactment of laws that Etzioni calls vanilla-pale measures will do little to stem the tide of gun-related violence in this country. The leading criminological studies, those done by James Wright, Kathleen Daly, Peter Rossi, and Gary Kleck, conclude that the measures currently proposed will, at best, only slightly mitigate the level of criminal misuse of firearms. [61] One of the Wright-Rossi studies, a National Institute of Justice survey of felons in state prisons, concluded that criminals will always get guns and use them, no matter what gun control laws are passed. [62] Indirectly supporting the viewpoint of Domestic Disarmament, Kleck observes that, in a country awash in guns, such as ours, no gun control policy--short of universal confiscation--"is likely to have a dramatic impact on violence in America. Because gun availability, even among high-risk individuals, seems to have at best a modest impact on violence rates, gun controls only nibble at the edges of the problem rather than striking *451 at its core." [63] Thus, Etzioni's repudiation of vanilla-pale gun control measures is well supported by scholarly research on the gun issue.

Most European nations (Switzerland and a few others excepted) impose stricter firearms controls than does the United States. [64] The typical model is a strict licensing system for handguns and a somewhat milder licensing system for most long guns. [65] There is a great deal of variation in this model, from countries with the most rigorous laws and the most aggressive enforcement against ordinary gun owners (such as Spain, Germany, and Great Britain) [66] to countries with more relaxed attitudes (such as Norway, France, Italy, Belgium, Latvia, and the Czech Republic). [67] Actual bans on handguns (Ireland) [68] are rare, and bans on all guns (Romania under Facism and Communism) [69] are rarer still. Thus, Domestic Disarmament goes far beyond where most European nations have trod, at least during their periods of democratic rule. Nevertheless, Domestic Disarmament springs in part from what might be termed a European sensibility toward an armed populace. [70] In a 1976 Public Interest essay, The Great American Gun War, [71] historian B. Bruce-Briggs described the combatants of what he called a "low-grade war" [72] fought over gun ownership by social factions representing "two alternative views of what America is and ought to be." [73] Advocates of strict gun control are usually

In most of Europe, gun ownership is not a right but a state-granted privilege. [75] Likewise, the Communitarian Network views gun ownership in America as a privilege rather than a right, a privilege that should now, due to the level of gun violence, be denied. [76]

Ironically, despite the Communitarian Network's emphasis on the importance of individuals yielding to the will of the majority of the community, the Communitarian Network's gun prohibition policy actually deviates greatly from what a large majority of Americans favor. Polls indicate that most Americans believe the Second Amendment does protect an individual right to arms, [77] although many Americans do support what they see as moderate gun control measures. [78] Most Americans do not favor firearms prohibition; rather, they view self-defense [79] and the recreational use of firearms as obvious benefits to be retained. [80] A ban on handguns is favored by only twenty-seven percent. [81] A ban on long guns garners only eleven percent support. [82]

Because, in all likelihood, Americans will not support a policy of gun prohibition, why even take this particular proposal of the Communitarian Network seriously? Although the case for domestic disarmament is at the moment a pipe dream, there are important reasons why the Communitarian Network's argument deserves serious attention.

*453 First, the gun rights lobby has long argued that the eventual goal of gun control legislation is gun prohibition. [83] Procontrol voices have pointed to this allegation as evidence of the lobby's "paranoia." [84] We now witness an important think tank, one that strongly influences the present Administration and many members of Congress, openly calling for gun confiscation. Second, while the communitarians serving in the Clinton Administration do not believe that total disarmament is possible, they clearly hope to achieve a high degree of disarmament. [85]

Serious reflection on the argument for domestic disarmament raises the question of how wise such a policy would be, particularly from the standpoint of communitarianism. Might the attempt to seize as many firearms as possible create more communal problems than it would solve? This question is faced squarely by Washington, D.C., attorney and former Justice Department official Ronald Goldfarb, who follows Etzioni in calling for domestic disarmament "beginning with a model program." [86] Disarmament should be implemented in three phases, avers Goldfarb: (1) increasing regulation of firearms sales, (2) registering firearms once the sales of such have been efficiently regulated, and finally (3) confiscating as many weapons and as much ammunition as possible. [87] Goldfarb seems troubled, however, over problems arising from such a controversial and herculean endeavor:

A. Guns and Other Dangerous Items

No approach to gun control can claim to be rational without first putting gun violence in perspective. There are at least 50 million gun-owning families in America. [89] Of the roughly 200 million guns they own, about a third are handguns. [90] There are at least one million so-called assault weapons. [91]

There are approximately 30-35,000 gun-related deaths in America every year. [92] Viewed in light of how many guns and gun owners there are in America, the numbers reflect that only a very small fraction of gun owners misuse their guns. This fact has led sociologist James D. Wright to note that, in sum, "gun ownership is apparently a topic more appropriate to the sociology of leisure than to the criminology or epidemiology of violence." [93]

It is undisputed that firearms are used for defensive purposes at least several tens of thousands of times per year. [94] Yet the Communitarian Network does not propose banning a product that is involved in more deaths every year than guns, a product that does not prevent any crimes. That product is alcohol, which is in some ways a close analogue to guns.

*455 Though a legal drug rather than a manufactured tool, alcohol, like guns, is used recreationally by millions of Americans. [95] Although the manner in which harm is wrought by drinking (alcohol-related diseases, accidents caused by drunks, and criminal violence perpetrated by the disinhibited) is not exactly the same as with guns (suicide, firearms accidents, and crimes perpetrated with guns), alcohol, like guns, is a material cause of harm to many Americans. [96] Further, because alcohol disinhibits potential criminals and lowers the defensive awareness of potential victims, it contributes to a much larger fraction of violent crime than do firearms. [97] The use of alcohol is a material cause of approximately 100,000 deaths every year in America, nearly three times as many deaths as caused by firearms. [98] The parallel between alcohol and firearms is also reflected by the fact that the same agency supervises the two items: the Bureau of Alcohol, Tobacco and Firearms (BATF), which might aptly be called the "Bureau of Semi-Licit but Morally Suspect Consumer Products."

In contrast to the expansive gun control arguments of Domestic Disarmament, the Communitarian Network limits its attention to the societal costs of alcohol to vanilla-pale measures such as drunk driving roadblocks. [99] Where is the Communitarian Network's argument for additional "alcohol control" laws analogous to those they advocate for guns? Why not impose a ban on distilled liquor on the basis that "no one needs" that much alcoholic firepower to have a good time? (This is the usual line of argument for laws banning assault weapons.) [100] More important, where are the Communitarian Network's position papers on the reinstitution of domestic prohibition? Why are we to *456 accept the toll exacted on society by the easy availability of alcohol, but not that of the less-easy availability of guns, especially when the former kills nearly three times more than the latter?

Communitarian advocates of prohibitive gun control laws--most of whom, it is safe to assume, imbibe on occasion--apparently accept the cost to society of the ease with which alcohol is procured and consumed, most likely because drinking is pleasurable and the large majority of drinkers are responsible. Thus the Communitarian Network does not apply the same logic to gun ownership as to alcohol, even though the vast majority of gun owners take pleasure in owning firearms and exercise that right responsibly. Guns are singled out for prohibitionist legislation, while a relatively blind eye is turned toward the much heavier toll exacted by the sale and consumption of alcohol.

This analogy between guns and alcohol is not intended to minimize either the annual tragedy of 35,000 firearms-related deaths or of 100,000 alcohol-related deaths. It is only intended to put matters in perspective and to highlight that, as a matter of course, Americans accept the social costs of potentially dangerous substances such as alcohol, or potentially dangerous objects such as automobiles and guns, because of the benefits those things afford. One may certainly argue that alcohol actually provides little benefit to society, but the experiment with alcohol prohibition during the 1920s demonstrated that millions of Americans found the recreational benefits of alcohol consumption to be sufficient justification for resistance to that policy. It was this stubborn refusal of Americans to give up their freedom, combined with the observation of how alcohol prohibition lined the pockets of gangsters, [101] that led to the repeal of Prohibition. [102] Few today, communitarians included, would argue for the resurrection of the failed Prohibition experiment, even though alcohol actually inflicts greater harm on society than do firearms. [103]

1. Noncompliance of Law Enforcement Personnel.--Proponents of gun prohibition sometimes forget that America's law enforcement community, which would obviously be needed in the effort to confiscate all firearms, includes many "gun culture" types. This is all the more true in the nation's vast rural areas, where a disproportionate *457 fraction of the nation's guns are possessed. [104] Surveys have indicated that the rank-and-file of the law enforcement community possess a deep-seated belief that law-abiding citizens have a constitutional right to own firearms. [105] It is therefore likely, as firearms instructor and former police officer Massad Ayoob suggests, that many members of the law enforcement community would either openly refuse to carry out a gun confiscation law or would at least contribute to its subversion in some way. [106]

One such law enforcer is Richard Mack, former Sheriff of Graham County, Arizona. Sheriff Mack has gained national attention because of his successful federal lawsuit that blocked implementation of the Brady Act [107] in his state. [108] Mack believes that law enforcement *458 officials and military personnel are bound by their oath of office to refuse to enforce any unconstitutional gun law:

2. Resistance.--As Ronald Goldfarb and other gun prohibitionists realize, a successful policy of domestic disarmament must be preceded by a federal attempt to register all firearms currently owned. [110] In fact, the German Nazi regime used registration records as a precursor to, or as a means of, confiscating guns within its own borders and within its territorial acquisitions, and many gun owners are aware of this historical precedent. [111] Fear of confiscation is one reason for such little compliance with current registration laws where they have been enacted in America. New York's "Sullivan Law," [112] the first major licensing and registration scheme imposed in twentieth-century America, is ignored by millions of New Yorkers. [113] In Illinois it is estimated that about 75% of handgun owners are in noncompliance with the state's registration law. [114]

There has also been substantial resistance to laws that require registration of so-called assault weapons. California was the first state to pass a ban on military-style semiautomatics. [115] The California law requires *459 mandatory registration of all such weapons owned prior to the enactment of the ban. [116] A group called Gun Owners React openly called for those who owned such arms to disobey the registration requirement. [117] Nearly 90% of the approximately 300,000 assault weapon owners in California refused to register their weapons. [118] A few months later, Denver passed a similar ordinance. [119] Only 1% of the estimated 10,000 assault weapons in that jurisdiction were ever registered. [120] Other municipalities that have passed similar ordinances have seen about the same percentage of guns registered. [121] New Jersey was the next state to enact an assault weapon ban. [122] Out of the 100,000 to 300,000 assault weapons in that state, 947 were registered, an additional 888 were rendered inoperable, and 4 were turned over to the authorities. [123]

If the Morton Grove, Illinois, handgun ban is any indication, gun owners appear to be even more disobedient to decrees requiring them to turn their firearms over to authorities. [124] The Morton Grove police wisely adopted an "honor system," whereby guns would be confiscated through the owners' voluntary compliance with the ban, rather than by searching the residences of known handgun owners. [125] Only a handful of handguns were turned in. [126] Noncompliance with such laws in more libertarian areas of the nation, such as the West and *460 South, may be higher. Indeed, noncompliance is legitimized by vocal progun police such as the implacable Sheriff Richard Mack and his journalist cohort, Timothy Robert Walters:

3. Overwhelming and Ruining the Criminal Justice System.--Criminologist Don Kates observes that even if only half of all handgun owners defied a confiscation law, the criminal justice system would simply not be able to cope:

Add to a handgun ban the attempt to enforce a law banning all firearms, or virtually all firearms, and enforceability problems become immense.

Just as alcohol prohibition in the 1920s and drug prohibition in modern times have spawned vast increases in federal power, as well as *461 vast infringements on the Bill of Rights, another national war against the millions of Americans who are determined to possess a product that is very important to them is almost certain to cause tremendous additional erosion of constitutional freedom and traditional liberty. Legal and customary protections against unreasonable searches and seizures, invasion of privacy, selective enforcement of laws, and harsh and punitive statutes would all suffer. [129] Attempting to disarm Americans would likely result in widespread police corruption, increased wiretaps, and other evils associated with enforcement of laws against consensual possessory offenses, [130] thus encouraging public contempt for the law.

Of course, the problem of citizen noncompliance could be partially avoided by simply banning the production of new firearms or by adopting a Morton Grove-type "honor system" [131] to enforcement of a law against gun possession. These vanilla-pale approaches, however, would leave most of America's 200 million guns in private hands, hardly domestic disarmament.

4. "Nasty Things May Happen": Armed Resistance.--More alarming than simple noncompliance with gun prohibition is the apparent willingness of many gun owners to fight, if necessary, for their right to bear arms. [132] The rhetoric of resistance is not confined to gun magazines, but also appears in scholarly journals. [133]

*462 How seriously should the possibility of a civil war over gun prohibition be taken? The emotions over gun control today run extremely high. The "militia movement" that is much in the news these days is a reaction, in part, to gun control legislation. [134]

The number of those currently involved with citizen militias is at least in the tens of thousands nationwide, and possibly higher. [135] Most mainstream gun owners, including most of the "hard core," do not currently belong to these militias. This is largely because many of the militias are motivated as much by other political concerns (some of them truly bizarre, such as United Nations invasion conspiracies) as they are by gun control legislation, and these concerns are not generally shared by mainstream gun owners. [136] Some analysts believe, however, that the militias are even now drawing an increasing number of mainstream gun owners to their ranks. [137] If the federal government actually attempted to disarm Americans, not only would many Americans *463 likely fight back, but the number of those who would do so could conceivably be in the millions. [138]

*464 As the specter of myriad American civilians fighting their own government to retain their gun rights were not troubling enough, there is evidence that at least some members of the armed forces would join the resistance. Many members of the armed services are gun culture types: they own firearms themselves, are convinced that Americans have the inalienable right to keep and bear arms, and they take an oath to defend the Constitution from every enemy, "foreign or domestic." [139] It is therefore likely that at least some in the military would not simply look the other way as the government attempted to enforce a policy of domestic disarmament. [140] A master's thesis studying the attitudes of American soldiers found that the large majority would not obey orders to fire on citizens who resisted gun confiscation. [141]

Contrasting these hard-core members of the gun culture with the advocates of prohibitionist gun legislation "who take bourgeois Europe as a model of a civilized society," Bruce-Briggs describes the former as

"Nasty things" would likely ensue if the government attempted to enact and enforce gun prohibition. It was, after all, government attempts to confiscate "weapons of war" at Lexington and Concord that sparked the American Revolution [143] and the Texan rebellion against Mexico. [144] If it is true, as Bruce-Briggs implies, that millions rather than mere thousands of gun owners would be involved in fighting for their gun rights, then those who foresee a speedy quashing of this rebellion are probably deluding themselves.

Many people will be incredulous, even scandalized, over the proposition that many gun owners would resist attempted disarmament. Nevertheless, a number of notable constitutional scholars have shown that this type of disobedience is not only characteristically American, but that the Second Amendment's very reason for being is to enable American citizens to resist even their own government when their civil liberties are thus assailed. [145] It was the Framers of the Constitution and the revolutionary generation, and not the 1990s "Militia of Montana," who first insisted that the only reason a government would seek to disarm its population would be to enslave it. [146]

*466 Virtually all legal scholarship on the Second Amendment from the last two decades acknowledges as much. Sanford Levinson so concluded in his famous Yale Law Journal article, The Embarrassing Second Amendment. [147] Levinson is not alone. Constitutional scholarship on the Second Amendment shows that one of the major reasons the Amendment was included in the Bill of Rights was to ensure the perpetuation of a force of armed citizens that could resist domestic tyranny when--but only when--it was absolutely necessary. [148]

*467 Although most gun owners have not, of course, kept up with the Yale Law Journal, the ideology of forceful resistance to a gun-banning central government has been transmitted--from American gun owners in 1776 to American gun owners in 1997--quite effectively. Many gun owners believe that it would be perfectly legitimate--even morally required--to oppose gun prohibition by force of arms. [149] When we celebrate the Fourth of July, we remember that America was, after all, born through what the British perceived as "insurrection"; our Founders enjoined us never to lose that "spirit of resistance." [150] Millions of American gun owners, rightly or wrongly, still heed that message.

Predictably, proponents of gun control have responded bitterly that the conclusion of Levinson and other legal scholars represents nothing less than an "insurrectionist" interpretation of the Second Amendment. [151] Such a criticism ignores the important distinction between *468 unjustifiable resistance--insurrection--and justifiable resistance to government tyranny--a right that Americans exercised in the Revolution and one that the Founders declared to be an inalienable right. [152] To criticize the notion of rebellion and resistance per se is to criticize the theory of government embodied in the Declaration of Independence. [153]

"It would be useful," Bruce-Briggs concludes, "if some of the mindless passion, on both sides, could be drained out of the gun control issue." [154] On the communitarian side, Etzioni and others must ask themselves the following question: If the passage of the Brady Act [155] and the assault weapon ban [156] have caused such alarm and have triggered plans of resistance in the minds of many otherwise law-abiding gun owners, what is bound to happen if such an extreme proposal as domestic disarmament is made the law of the land? The worst case scenario would be a civil war, while the best case scenario would be a massive conflict and breakdown of law and order, reminiscent of the era of alcohol prohibition. In neither case would a more harmonious, *469 unified, communitarian society result. Moreover, it is not only law-abiding citizens who would not give up their guns, criminals would not either.

B. Country, Court, and the Crisis of Legitimacy

Prohibitionist solutions, whether they involve the banning of alcohol, firearms, gold, or other goods, serve in the long run to diminish "legitimacy"--the popular sense that the government exists to serve rational, pragmatic ends and, therefore, ought to be obeyed. Historian William Marina, who has written extensively on the American Revolution, has argued that successful firearms prohibition will never become a reality in the United States and is doomed to fail internationally as well. [157]

With the benefit of historical perspective, Marina made two points, both stemming from his study of resistance and revolution in the modern world. The first was an empirical observation about repressive regimes: Oppressive states are inherently unstable, and most of them eventually give way to populist forces of reform or revolution. [158] This is especially true in the modern era, which may aptly be dubbed the "era of revolution." (Marina made these predictions in the wake of Watergate and Vietnam, long before the collapse of the Soviet Empire.) [159] When states become tyrannical they lose legitimacy, and hence their legitimate authority to govern. Marina focused on the American Revolution as one of the clearest examples of what happens when there is a "crisis of legitimacy" that pits the people against their government. [160]

The American Revolution was the product of what Marina called the "Country" ideology, which stresses popular sovereignty and republicanism, as opposed to the "Court," or centralized, statist ideology. [161] "Here," noted Marina, "the authority emanated from the people upward, versus the standing army, where authority rested with the state. *470 Participation in the people's militia was thus an integral aspect of citizenship in what was perceived as a republican culture." [162]

America, partly by design, has avoided the most intense country versus court conflicts. The national capital was deliberately chosen to be far removed from the finance and trade centers (New York and Philadelphia at the time). [163] Yet it is still true that Washington, D.C., is in many ways quite different from the rest of the United States. A demographic survey of various American cities focused on what their inhabitants liked to do for fun: was a good time to them a night at the ballet, cooking a gourmet meal, a morning of Bible reading, or a weekend of hunting? [164] The survey results revealed that the most aberrational city was Washington, D.C.; its inhabitants had less in common with the "average American" than those of any other American city. [165] (Among other things, the percentage of hunters was very low.) [166] Thus, it should not be particularly surprising that a think tank located in the court city, a think tank that has the Executive's ear, should simply fail to understand how intense the resistance to its proposals would be out in the "country," nor would it be surprising for the court to fail to foresee that an attempt to disarm the populace, and further centralize armed force under court control, could literally start a civil war. That was how the English Civil War was started. [167]

Just as it is predictable for the court to underestimate the intensity of the country's likely resistance to court's demands for disarmament, it is also predictable that the court will overestimate its ability to control the country. [168] (This miscalculation also contributed to the English Civil War.) This realization leads to Marina's second historical point: Powerful states have rarely been able to control revolutions in arms technology, [169] nor have they been able, historically, to prevent the people from obtaining that technology, especially when it comes to small arms. [170] Even modern superpowers have been largely incapable *471 of disarming or vanquishing targeted armed populations. [171] Support for Marina's thesis can be seen in the inability of powerful modern states to defeat the North Vietnamese and Viet Cong, the Irish Republican Army, the Afghan mujahedin, and the Somali militias.

Marina analyzed the impotence of powerful states not only in terms of the inherent lack of military flexibility created by reliance on superweapons, but also in terms of the eventual societal decline that "imperial" nations have historically suffered (among which he numbers America). [172] The Founders were also aware that, historically, nations that became empires became both morally and politically corrupt, and, therefore, impotent. Thus, the Founders consciously sought to establish a general government of specified, limited powers that would not excessively involve itself in foreign entanglements, and whose authority emanated upward from the states. [173] Nevertheless, this vision did not prevent America from passing into its own imperial phase, just as the Roman Republic had done. This drift toward empire on the part of America has only led, once again, to a global crisis of legitimacy. [174] Witness, for example, the impotence of the United Nations in the former Yugoslavia and elsewhere throughout the world where various states have reconfigured themselves or asserted their former sovereignty. [175]

Stagnation created by the drift toward empire has resulted in what Marina has called "the emergence of a new paradigm. In many ways this paradigm is an updating of the 'Country' ideology, yet bridges a spectrum from left to right and includes many who would view themselves as nonpolitical . . . ." [176] This new paradigm, with its attendant ideas of people participation, decentralization, smallness of scale, and obtaining appropriate intermediate technology such as small arms, may lead adherents to bypass or ignore the government, "despite the efforts of imperial centralizers to stop the process." [177] *472 Thus, "the larger philosophical outlook underlying the Country interpretation of the Second Amendment takes on a new meaning and relevance. In today's international context, any such effort at arms prohibition by the state against the individual, in violation of the Second Amendment, is bound to fail." [178]

Failure to heed the argument that gun prohibition is futile "is apt to have far more serious repercussions on the legitimacy of those seeking prohibition than upon the actions or existence of those whose lives they seek to regulate." [179] Moreover, a return to "decentralization" and "smallness of scale" in America and elsewhere may be inevitable. [180] Such a return to a "republican culture," as shall be argued below, is the most plausible cure for gun-related violence in America.

Solutions to America's plague of violence are most likely to be found if all Americans, whatever their feelings about guns, heed the words of Isaiah: "Let us reason together." [181] Etzioni and the communitarians do attempt to reason with the public concerning the types of rights beloved in the "court" at Washington. Although the communitarian agenda for selective censorship, [182] drug testing, [183] and the like [184] may not comport with strict construction of the Constitution, there is a recognition that freedom of speech and privacy are tremendously important, and that First and Fourth Amendment rights should be infringed only when there is a compelling reason to do so. Etzioni formulates a four-part test for when rights may be infringed: (1) clear and present danger, (2) no alternative way to proceed, (3) "adjustments" should be as limited as possible, and (4) infringing policies should minimize harmful side effects. [185] His respectful hesitancy toward infringing rights of journalists vanishes, however, when the object of regulation becomes the one-half of American households that own guns. Consider the Communitarian Network's "accommodation" of gun owners: rendering collectors' guns "inoperative" and limiting hunters to long guns "without sights or powerful bullets, making the event much more sporting." [186]

*473 There is an important ethical case to be made against hunting, but that case is properly made within the context of animal rights (a cause for which Etzioni's book displays absolutely no sympathy), [187] and vegetarianism. While dismissing the idea that hunting could be a true "sport," Etzioni displays a truly cosmopolitan ignorance about hunting, and about the interests of animals. The statement about denying hunters "powerful bullets" obviously comes from someone who has never thought about hunting in a serious manner. If hunting is to be tolerated, it is desirable that the hunted be killed as painlessly and rapidly as possible. Accordingly, hunters today are trained only to take a shot that they are confident will bring the animal down almost instantly (typically, a shot to the heart or the lungs). No ethical hunter would fire at the general mass of a deer, hoping to hit a leg or some nonvital organ. To the extent that hunters are deprived of "powerful bullets" (that is, bullets that have been found suitable for bringing the animal down) or deprived of scopes (which make the shot more precise), hunters would use inferior, less capable bullets, and would shoot them less accurately. As a result, many animals would be wounded rather than killed. Fleeing, some would escape, only to die a lingering, painful death after days or weeks, as a result of infection or other complication from the bullet wound. Persons who have strong ethical objections to hunting per se, but who also believe that hunting, to the extent allowed, should be done as humanely as possible, should prefer that animals be hunted with powerful and accurate rifles, rather than with other weapons, such as bows or inferior firearms, which risk causing an especially slow and agonizing death.

Etzioni's snide accommodation of gun collectors--by allowing them to keep their guns if they employ his "favorite" technique of pouring "cement in the barrel" [188] --is likewise explainable only as a product of condescending ignorance. Most automobile collectors would find little value in a car that was rendered inoperable, as by pouring cement in the piston cylinders. Even if a collected car spends all its time in a garage, or a collected gun resides in a wall-mounted display case, it is still important to the collector to know that his object could serve its purpose. Rendering the object inoperable--especially through internal destruction such as cementing vital parts--also destroys most of the economic value of the collected object. Many law- *474 abiding gun collectors would lose tens of thousands of dollars, in collections built up over decades, if Etzioni's scheme were enacted. One wonders if Etzioni has ever viewed a friend's gun collection, or has ever thought seriously about the real impact his gun confiscation proposal would have on the millions of good citizens who are gun collectors. Perhaps an argument could be made that gun collecting presents such a risk of harm to society that even licensed collectors with registered collections should be forced to destroy (by disabling) their collections. Etzioni has not made such an argument. He has simply sneered at the cretins whom he imagines compose the ranks of the nation's gun collectors and hunters. [189]

If Etzioni were H.L. Mencken, sneering at the booboisie beyond the Beltway or the Bos-Wash corridor would be understandable, [190] but Etzioni proclaims himself a communitarian, a man who wants to (in Richard Nixon's words) "bring us together." [191] The Americans who live more than half an hour from a Metroliner stop are hardly going to be persuaded to put down their guns by a man and movement that hold them in contempt and view them as cretins to be subjugated, rather than as fellow citizens with whom to begin a dialogue. [192]

C. Summary

If domestic disarmament became policy in this country, tens of millions of Americans would simply hide their guns from the authorities. The majority of these guns are now, and would remain, unregistered. Thus, the majority of firearms would remain in the hands of *475 their owners, or on the black market. Just as organized crime is able to smuggle tons of drugs into the country every year, it would be able to do the same with illicit firearms. Even if illegal imports could be entirely eliminated, guns are not particularly difficult to manufacture in a basement workshop with tools that can be obtained at a hardware store. [193]

The vigorous attempt to enforce domestic disarmament would entail systematic violations of fundamental rights enjoyed by American citizens. Even if it proved possible to catch and prosecute only a small fraction of the projected number of those who would refuse to comply with registration or relinquishment requirements, both the courts and the nation's jails would almost certainly be overloaded. [194] Attempted enforcement of domestic disarmament would also likely result in law enforcement oppression, corruption, resistance, or rebellion (depending upon the officer). [195] This, in turn, could very well lead to a breakdown in respect for the law and the institutions that make it. [196]

There is an alarming potential for violence that would result from a serious attempt to disarm Americans. Many Americans are already preparing to meet force with force should gun prohibition laws be passed. The size of the militia movement is sure to increase should it become clear that the federal government intended to embark upon the wholesale disarmament of its citizens.

Domestic disarmament could be a cure worse than the disease. It would therefore be preferable, as Bruce-Briggs suggests, to drain the "mindless passion" out of the gun control debate [197] and begin to discuss rationally what might realistically lead to a diminution of gun violence among a people that has historically been armed and will almost certainly remain so.

[*] Research Director, Independence Institute, Golden, Colorado. B.A., Brown University; J.D., University of Michigan.

The authors would like to thank Eugene Volokh, Don Kates, Joseph Olson, Glenn Harlan Reynolds, Bob Dowlut, Paul Blackman, and William Tonso for their helpful criticism. Errors are the authors' alone.

[1] Amitai Etzioni & Steven Helland, The Case for Domestic Disarmament (1992) [hereinafter Domestic Disarmament].

[2] Id. at 9. Domestic Disarmament is willing to make some concessions to gun collectors and hunters. See infra note 47 and accompanying text.

[3] This Article uses the term "assault weapons" as gun prohibition advocates use it. This usage, however, is a misnomer. For a critique of this misuse of the term, see David B. Kopel, Rational Basis Analysis of "Assault Weapon" Prohibition, 20 J. Contemp. L. 381 (1994).

[5] Cf. The Communitarian Network, The Responsive Communitarian Platform: Rights and Responsibilities, reprinted in Rights and the Common Good: The Communitarian Perspective 11, 19 (Amitai Etzioni ed., 1995) [hereinafter Platform] (contending that "each member of the community owes something to all the rest, and the community owes something to each of its members").

[7] Id. at 587-88. Williams contends that an individual right to own arms was "a peripheral issue in the debates over the Second Amendment. This secondary status is critical because ... under modern conditions an individual right to arms is positively counterproductive to the goals and ideals implicit in a collective right." Id.

[8] The words "well regulated Militia" come from the text of the Second Amendment, which states in its entirety: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.

[9] Williams, supra note 6, at 607-08. Williams states: "The most obvious way to secure the functions served by the old militia would be to reconstitute a universal militia along republican lines." Id. at 607. As we detail below, Williams is not advocating the sort of independent militias that have been so much in the news recently. See id. at 607-14; see also infra notes 210-224 and accompanying text.

[12] Cf. Daniel Abrams, Ending the Other Arms Race: An Argument for a Ban on Assault Weapons, 10 Yale L. & Pol'y Rev. 488, 500 (1992) ("Licenses should be granted only for those weapons that are particularly suited to hunting or some other valid purpose, and only to individuals who have passed a background check. This would allow 'honest citizens' the privilege of owning a hunting weapon, and possibly, a licensed handgun for self-defense.").

[13] See David B. Kopel, The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? 20-23 (1992) (discussing gun possession and gun-related crime in Japan).

[14] See Mike Capuzzo, Idea Man, Phila. Inq., June 16, 1992, at E1, available in LEXIS, News Library, Philinq File ("As the father of Communitarianism--he coined the word in 1990--Etzioni is being called an innovator."). For a statement by Etzioni about the Communitarian Network, see Amitai Etzioni, Preface: We, the Communitarians, in Rights and the Common Good: The Communitarian Perspective iii (Amitai Etzioni ed., 1995) [hereinafter We, the Communitarians].

[16] See id. at iv ("We adopted the name 'communitarian' to emphasize that the time had come to attend to our responsibilities to our communities.").

[17] See id. (lamenting that "many Americans are rather reluctant to accept responsibilities").

[19] Domestic Disarmament, supra note 1, at i. For a concise statement of the Communitarian Network's objectives, see Platform, supra note 5. This and other materials may be obtained from The Communitarian Network, 2130 H Street, N.W., Suite 714-J, Washington, D.C., 20052 (1-800-245-7460).

[29] See Mandatory Organ Donation Sought, N.Y. Times, Dec. 23, 1992, at C1, available in LEXIS, News Library, NYT File.

[31] See We, the Communitarians, supra note 14, at v. The journal began publishing in 1991. See id.

[32] A number of those books are cited elsewhere in this Article. See also, e.g., Robert N. Bellah et al., Habits of the Heart: Individualism and Commitment in American Life (1985) (discussing American individualism and community commitment); Community in America: The Challenge of Habits of the Heart (Charles H. Reynolds & Ralph V. Norman eds., 1988) [hereinafter Community in America] (contributing to the ideas developed in Bellah et al., supra).

[33] See Capuzzo, supra note 14; see also R.A. Zaldivar, Clinton Embraces Communitarianism, Denv. Post, Feb. 7, 1992, at A24 (revealing striking parallels between several of President Clinton's speeches and certain proposals found in communitarian literature).

Communitarian rhetoric frequently emanates from the Clinton Administration. For example, the President called for "community policing networks so that they'll know their neighbors and they'll work with people not simply to catch criminals but to prevent crime in the first place. We want to put more power in the hands of local communities ...." President William J. Clinton, Radio Address to the American People (Oct. 23, 1993), in 29 Wkly. Comp. Pres. Doc. 2157 (1993) (also available at various White House sites on the Internet). President Clinton also stated that America's Founders "wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans." Remarks by the President in MTV's "Enough Is Enough" Forum on Crime (MTV television broadcast, Apr. 19, 1994) [hereinafter Remarks by the President in MTV's "Enough Is Enough" ] (responding to the second viewer question). That "radical" amount of freedom that the government, in Clinton's view, "gave" to the American people was based on the assumption that "people would basically be raised in coherent families, in coherent communities, and they would work for the common good." Id. Today,

In his book, Earth in the Balance, Vice President Al Gore wrote: "The emphasis on the rights of the individual must be accompanied by a deeper understanding of the responsibilities to the community that every individual must accept if the community is to have an organizing principle at all." Al Gore, Earth in the Balance 277 (1992). He further asserted that "we have tilted so far toward individual rights," and that this alleged imbalance has caused both the community and the ecology to suffer. Id. at 278.

In an interview with Parade magazine, First Lady Hillary Rodham Clinton complained: "We have not done a good job in expecting people to exercise their rights responsibly and to be held accountable." Dotson Rader, 'We Are All Responsible,' Parade, Apr. 11, 1993, at 4, 4. During a commencement speech to the graduating class of the University of Pennsylvania, she asked: "How do we create a new spirit of community given all the problems that we are so aware of? Regrettably, the balance between the individual and the community, between rights and responsibilities, has been thrown out of kilter over the last years." Robert Pear, Hillary Clinton Gives Plea for Unity at Penn, N.Y. Times, May 18, 1993, at A17, available in LEXIS, News Library, NYT File. "The spirit of community," the phrase used by Mrs. Clinton, happens to be the title of a book on communitarianism by Etzioni. See Amitai Etzioni, The Spirit of Community: The Reinvention of American Society (1993) [hereinafter The Spirit of Community].

Secretary of Housing and Urban Development Henry Cisneros was one of the original endorsers of the Platform. See Platform, supra note 5.

[34] See Paul Starobin, Snow Drifted but Not This Conversation, Nat'l J., Jan. 20, 1996, at 125, available in LEXIS, News Library, Ntljnl File. University of Maryland political philosopher and communitarian writer William Galston has served as a White House domestic policy aide and is a part-time speech writer for Clinton. See id. The broad themes of President Clinton's 1996 State of the Union speech and his 1996 reelection campaign were shaped in part by a January 7, 1996 private White House conference between the President and a group of academics. See id. The conference was arranged by Galston at the White House's request, and the academic participants included Amitai Etzioni. See id.

[35] See Zaldivar, supra note 33; see also William A. Galston, Clinton and the Promise of Communitarianism, Chron. Higher Educ., Dec. 2, 1992, at A52 (arguing that journalists have noted communitarian strands in the President's public utterances). It therefore came as no surprise when an issue of The Communitarian Reporter stated that the White House was apparently "seeking to move along communitarian lines." Amitai Etzioni, To Stay the Communitarian Course, Communitarian Rep., Fall 1992, at 1 [hereinafter To Stay the Communitarian Course].

[37] Libertarian political philosopher Tibor R. Machan, for example, calls communitarianism an attempt to present a "palatable collectivism" to the American people. Tibor R. Machan, Individualism Versus Classical Liberal Political Economy (unpublished lecture), at 1 (on file with author). Nadine Strossen, president of the American Civil Liberties Union (ACLU), faults communitarians for employing "rhetoric [that] is very slippery" in an attempt to introduce a number of liberty-threatening measures into the body politic. Peter Steinfels, A Political Movement Blends Its Ideas from Left and Right, N.Y. Times, May 24, 1992, � 4, at 1, available in LEXIS, News Library, NYT File. Conservative Burton Yale Pines of the National Center for Public Policy Research characterizes communitarianism as "just the latest incarnation to get the government meddling in people's affairs." James A. Barnes, The New Guru of Communitarianism, Nat'l J., Nov. 30, 1991, at 2931, 2931.

[38] As Seymour Martin Lipset notes: "The rsecent efforts, led by Amitai Etzioni, to create a 'communitarian' movement are an attempt to transport Toryism to America. British and German Tories have recognized the link and have shown considerable interest in Etzioni's ideas." Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword 37 (1996).

[40] Id. at 20-21. The actual number of accidental firearms deaths for the entire American population in 1993 was 1600. See National Safety Council, Accident Facts 5 (1994). The number of accidental firearms deaths of children aged 0 to 14 was 220. See id. In a different context, Etzioni writes: "As Sigmund Freud would say, there are no accidents." The Spirit of Community, supra note 33, at 226. Indeed, that is one reason why firearms prohibition is unlikely to have much of an effect on the accidental death rate. Many firearms accidents are the result of recklessness. The perpetrators are "disproportionately involved in other accidents, violent crime, and heavy drinking." Philip J. Cook, The Role of Firearms in Violent Crime: An Interpretative Review of the Literature, in Criminal Violence 236, 269 (Marvin E. Wolfgang & Neil Alan Weiner eds., 1982) (citing G.D. Newton, Jr. & F.E. Zimring, Firearms & Violence in American Life 19 (1969)); see also Gary Kleck, Point Blank: Guns and Violence in America 282-83 (1991) ("[Data suggest] that there are some common predisposing factors shared by participants in accidents and participants in acts of intentional violence."); Roger Lane, On the Social Meaning of Homicide Trends in America, in I Violence in America 55, 59 (Ted Robert Gurr ed., 1989) ("[T]he psychological profile of the accident-prone suggests the same kind of aggressiveness shown by most murderers ...."). Thus, without guns, many gun accident victims might find some other way to kill themselves "accidentally," such as by reckless driving. Indeed, they tend to have a record of reckless driving and automobile accidents. See Kleck, supra, at 294 (citing Julian A. Waller & Elbert B. Whorton, Unintentional Shootings, Highway Crashes and Acts of Violence, in 5 Accident Analysis & Prevention 351 (1973)). Banning just one type of dangerous object can accomplish little for this group.

[50] See David B. Kopel, Assault Weapons, in Guns: Who Should Have Them? 159, 160-61 (David B. Kopel ed., 1995). The federal ban on assault weapons was codified at 18 U.S.C. � 922(u), (w) (as amended 1994).

[51] See Evelyn Theiss, Clinton Blames Losses on NRA, Plain Dealer (Cleveland), Jan. 14, 1995, at A1 (quoting the President as saying, "the fight for the assault-weapons ban cost 20 members their seats in Congress"); see also Brad O'Leary, Fire Power, Campaigns & Elections, Dec./Jan. 1995, at 32, available in LEXIS, News Library, Mags File (arguing that the NRA backed Republicans in the 1994 election, thereby contributing to Democratic defeats). Of the 55 House races and 10 Senate races identified, 38 House races and 7 Senate races resulted in a progun Republican taking the seat away from Democratic control (by defeating an incumbent or, more typically, by winning an open seat from which a Democrat was retiring). See Theiss, supra. Ten Senate races also involved a progun candidate winning by less than the number of self-identified NRA members in the state. See id.

[52] "'Jim Florio gave up his governorship for it. If I have to give up the White House for it, I'll do it."' Theiss, supra note 51 (quoting President Clinton).

[53] See Joe Battenfeld, Clinton Vows Full-Scale War on Crime Next Year, Bost. Herald, Dec. 10, 1993, at 1, available in 1993 WL 6293677; Pierre Thomas, Clinton Mulls Registration of Handguns, Wash. Post, Dec. 9, 1993, at A1, available in 1993 WL 2084315.

[54] A White House Interdepartmental Working Group on Violence recommended stringent new restrictions on gun rights. See Interdepartmental Working Group on Violence, Report to the President and the Domestic Policy Council 21-25 (1994) [hereinafter Report to the President]. Although the report was intended to be kept secret, it was uncovered and discussed in, among other places, National Review magazine. See Don B. Kates, Jr., Shot Down, Nat'l Rev., Mar. 6, 1995.

The Clinton proposal would regulate all secondary firearms transfers (transfers between private individuals). See Report to the President, supra, at 22. Every firearms transaction would be required to be routed through a licensed gun dealer and recorded by the federal government. See id. Failure to register an already-owned "restricted" handgun with the government would also be a federal crime. See id. Firearms purchases would be limited to one per month. See id. at 23. A license would also be required to purchase ammunition. See id. at 22. New "performance standards" would ban guns that hold too much ammunition or fire too rapidly. See id. at 24. These new performance bans would be in addition to the current assault weapon law that bans over 200 guns because they are said to fire too fast. See 18 U.S.C. � 922(v), (w) (1994). The White House memorandum predicts that such regulation would make illegal "[m]any handguns now manufactured in the United States for civilian use." Report to the President, supra, at 24. Even stricter laws would apply for the group of handguns and semiautomatic long guns that remained legal. See id. at 22. All handguns and all semiautomatic long guns--even a Marlin Camp Carbine--would become "restricted weapons." Id. Owners of restricted weapons could only possess them at home, at work, or at a target range or in transport there. See id. Thus, it would be a federal crime to go bird hunting with a Remington 1100 shotgun. It would be a federal crime to carry a handgun in public for protection--even if the carrier had a state license authorizing handgun carrying. See id. at 23-24. (Thirty-one states currently make handgun carry permits readily available to ordinary citizens who pass a background check, and sometimes a safety class.) See John R. Lott & David Mustard, Crime, Deterrence, and Right-to-Carry Concealed Handguns, 26 J. Legal Stud. 1, 4 (1997). In addition, the White House memorandum recommends consideration of a federal law to outlaw "the carrying of firearms in ... work sites." Report to the President, supra, at 23.

[55] See Jann S. Wenner & William Greider, The Rolling Stone Interview: President Clinton, Rolling Stone, Dec. 9, 1993, at 45. President Clinton is not pushing for a handgun ban now, but only because he does not "think the American people are there right now." Id.

[56] A Federal Bureau of Investigation (FBI) paper recommended expanding the federal ban to "armor piercing ammunition." Memorandum from Agent John E. Collingwood to the Director, FBI, Proposed FBI Policy on Gun Control, May 12, 1993, at 4, 6, 7 (on file with author). The definition of such ammunition, according to the FBI recommendation, should be "based upon performance standards, not upon composition." Id. at 7. In other words, if ammunition can perform in such a way as to pierce body armor, it should be banned. By this definition, virtually all hunting ammunition is armor piercing because any round from a high-powered rifle can penetrate body armor. The proposal harmonizes well with the communitarian desire to ban everything. If the .30 '06 and other hunting rounds are prohibited, there is obviously little use for the rifles that fire them.

At the signing of a directive on handgun safety locks, President Clinton remarked: "If a bullet can tear through a bulletproof vest like a hot knife through butter, it should be against the law and that is the bottom line." Remarks on Signing the Memorandum on Child Safety Lock Devices for Handguns and an Exchange with Reporters, 33 Wkly. Comp. Pres. Doc. 10 (Mar. 10, 1997); see also H.R. 2386, 104th Cong. (1995) (granting the Secretary of State authority to promulgate rules defining armor piercing ammunition under 18 U.S.C. � 921(a)(17)(B)).

[57] Domestic Disarmament, supra note 1, at 2. The Platform contained a paragraph overview of the communitarian call for domestic disarmament. See Platform, supra note 5, at 1; see supra notes 39-40 and accompanying text.

[58] The President complained that "no other nation" tolerates the level of gun violence seen in America. Ronald A. Taylor, Clinton Blasts NRA for Opposing Gun Control, Wash. Times, Mar. 2, 1993, at A6, available in 1993 WL 5826697.

[61] See Kleck, supra note 40, at 32-33 (indicating that of 121 possible effects of gun restrictions, "only ten are solidly or partially consistent with a hypothesis of gun control effectiveness"); James D. Wright et al., Under the Gun: Weapons, Crime, and Violence in America 317 (1983) (stating that some studies on connections between gun control legislation and gun homicides and gun assaults purport to show relatively few incidents in states with restrictive laws, but other studies purport to show no such trend); James D. Wright & Peter H. Rossi, Armed and Dangerous: A Survey of Felons and Their Firearms 227-28 (1986) (observing that despite all of the gun control laws of the twentieth century, "the number of armed criminals and the amount of armed crime has tended to increase, not abate"). Prior to researching the firearms issue, Wright, Rossi, and Kleck were proponents of gun control legislation. They have generally reversed their positions as a result of investigating the issue. See Wright et al., supra, at 310-24.

[63] Kleck, supra note 40, at 445. Kleck does believe that some gun control proposals, such as regulating the private transfer of firearms, could have a modest effect on gun crime. See id. at 336.

[68] See Jim Cusack, Handguns Banned in Ireland Since Early 70s, Irish Times, Oct. 17, 1996, at 10, available in 1996 WL 12405749. England recently banned most handguns, but still allows single-shot .22 calibre handguns. See Guns and Freedom, Daily Telegraph (London), May 12, 1997, at 21, available in LEXIS, News Library, Txtnws File.

[69] See Library of Congress, Law Library, Gun Control Laws in Foreign Countries 163-66 (revised 1976) (discussing a 1941 decree, abrogated in 1971, which stipulated that "'whoever possesses firearms, ammunition and explosives of any kind and under any form, even if such holders have a license for possession and use, shall ... surrender them"' (quoting Decree No. 142, M.O., No. 20 bis, Jan. 24, 1941)).

[70] For the communitarians' attempt to create a European-style Tory political ideology in the United States, see supra note 38 and accompanying text.

[71] B. Bruce-Briggs, The Great American Gun War, Pub. Interest, Fall 1976, at 37.

[75] See, e.g., Kopel, supra note 13, at 82-87 (discussing British system).

[77] See Kleck, supra note 40, at 359-77 (comparing various polls and studies which show that most Americans believe that individuals have rights to own guns); Gordon Witkin, Should You Own a Gun?, U.S. News & World Rep., Aug. 15, 1994, at 24 (reporting that 86% of men and 67% of women support the right to individual gun ownership; 80% of whites and 65% of blacks support gun rights).

[78] See Witkin, supra note 77, at 28 (reporting that 49% of all Americans believe gun owners should receive government licenses and complete, mandatory training).

[79] See id. at 24 (reporting that 45% of American gun owners cite self-protection as a primary reason for gun ownership).

[80] See Kleck, supra note 40, at 374-75 (arguing that gun ownership allows for the benefits of hunting).

[81] See Luntz Weber Research & Strategic Services, A National Survey on Crime, Violence and Guns 9-10 (1993).

[82] See Nearly 2 in 5 Americans Have Heard a Gunshot in Their Neighborhood and 3 in 4 Support Gun Ownership for Average Citizens, According to New U.S. News Poll, U.S. News & World Rep. (news release), Aug. 8, 1994, at 1, 4-5 (reproducing the results of a telephone survey conducted by the Tarrance Group and Mellman-Lazarus-Lake from May 16, 1994 to May 18, 1994). Ten percent of those polled favored a "[t]otal ban" on guns, while one percent "lean[ed] toward a total ban." See id.

[83] See Kleck, supra note 40, at 9 (asserting that gun control opponents argue "that today's controls, no matter how limited and sensible, will just make it that much easier to take the next, more drastic step tomorrow, and then the next step, and the next, until finally total prohibition of private possession of firearms is achieved").

[84] See id. at 11 ("The fact that such escalation [of gun controls] could happen says nothing about whether it will happen.").

[86] Ronald Goldfarb, Domestic Disarmament: It's Time to Take a Second Look at the Second Amendment, Wash. Post, Nov. 21, 1993, at C3, available in 1993 WL 2087239.

[87] See id. Goldfarb's three-step strategy is similar to the one proffered by the late Nelson T. "Pete" Shields, the Founding Chair of Handgun Control, Inc.:

Richard Harris, A Reporter at Large: Handguns, New Yorker, July 26, 1976, at 53, 58.

[89] See James D. Wright, Ten Essential Observations on Guns in America, Society, Mar. 1, 1995, at 63, available in 1995 WL 12535299.

[91] See Jim Stewart & Andrew Alexander, Assault Guns Muscling in on Front Lines of Crime, Atlanta J. & Const., May 21, 1989, reprinted in 135 Cong. Rec. S7006-01 (daily ed. June 20, 1989) (reporting that assault guns are 1 million of the 200 million privately owned firearms in the United States); cf. Michael G. Lenett, Taking a Bite out of Violent Crime, 20 U. Dayton L. Rev. 573, 573 (1995) ("There are over one million semiautomatic assault weapons ... on the streets of America today.").

[94] See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 153 (1995) (reporting that the National Crime Victimization Survey of the Department of Justice, see infra note 97, suggests that Americans use guns for self-defense reasons approximately 80,000 times per year in assaults, robberies, and household burglaries, while other studies find self-defense use of guns occurring more frequently). Even the gun control groups accept the figure of tens of thousands of defensive uses as valid. See id. (reporting that antigun writers concede the findings in the National Crime Victimization Survey).

[95] Cf. J. Michael McGinnis & William H. Foege, Actual Causes of Death in the United States, 270 JAMA 2207, 2208 (1993) (reporting that approximately 18 million Americans suffer from alcohol abuse while another 76 million are affected by alcohol abuse at some time).

[97] Firearms are involved in less than 12% of violent crimes. See Bureau of Justice Statistics, Highlights from 20 Years of Surveying Crime Victims: The National Crime Victimization Survey, 1973-92, at 29 (1993) (reporting that 32% of all violent crime includes the use of weapons; of the weapons used, handguns are used 29% of the time, and other guns are used 8% of the time).

[100] See Testimony of Richard M. Aborn Before the Committee on Codes of the Assembly of the State of New York (Jan. 3, 1991). Aborn, then an attorney for Handgun Control, Inc., later President of the group, testified:

[101] Cf. Samuel Eliot Morison, The Oxford History of the American People 899-902 (1965) (explaining that organized crime, which benefitted from bootlegging, allied itself with local governments such as the City of Chicago).

[103] Alcohol prohibition retains a core support of approximately 17%, which is at least as large as the percentage favoring complete gun confiscation. See ABC News/Wash. Post Survey (telephone poll conducted May 8, 1985-May 13, 1985).

[104] See Witkin, supra note 77, at 31 (indicating that 78% of all rural residents own firearms, while only 44% of city residents and 43% of suburban dwellers do).

[105] A 1993 poll conducted by the Southern States Police Benevolent Association, for example, reveals that 90% of southern police feel that the Constitution protects the right of individuals to keep and bear arms. See Police Views on Gun Control, Austin American-Statesman, Oct. 4, 1993, at A8, available in 1993 WL 6804712; see also Funny You Should Ask, Police, Apr. 1993, at 56 (describing a poll of police attitudes that indicated 85% believed gun ownership by civilians increased public safety); The Law Enforcement Technology Gun Control Survey, Law Enforcement Tech., July/Aug. 1991, at 14-15 (reporting survey that indicated 77.4% of respondents thought gun control infringed on the constitutional right to bear arms; 84.6% thought gun control did not lessen crime; and police chiefs, sheriffs, and top managers were more likely to support gun control than middle managers, while street officers were the least likely to support such control); cf. Scott Marshall, Poll: South's Police Leery of Stricter Gun Control, Atlanta Const., July 13, 1993, at 3A ("Nearly two-thirds of rank-and-file Southern police officers believe that stricter control laws are not the answer to curbing violent crime.").

[106] See Will the Police Confiscate Your Guns?--No, Am. Handgunner, Sept./Oct. 1994, at 116, 116-19.

[107] Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993) (codified at 18 U.S.C. �� 921-930 (1994)).

[108] See Mack v. United States, 856 F. Supp. 1372, 1381 (D. Ariz. 1994) (holding that certain provisions of the Brady Act violate the Tenth Amendment), rev'd, 66 F.3d 1025, 1032 (9th Cir. 1995), cert. granted sub nom. Printz v. United States, 116 S. Ct. 2521 (1996). By the time the Ninth Circuit reversed the lower court's decision, the Arizona legislature had enacted an "instant check" law that excepted Sheriff Mack (and all other Arizonans) from the Brady Act. See Ariz. Rev. Stat. Ann. � 13-3114 (West 1989 & Supp. 1996).

There are several other cases in which sheriffs have sued to overturn the Brady Act. See, e.g., Romero v. United States, 883 F. Supp. 1076, 1088 (W.D. La. 1994) (holding certain provisions of the Brady Act to violate the Tenth Amendment); McGee v. United States, 863 F. Supp. 321, 327-28 (S.D. Miss. 1994) (finding portions of the Brady Act to contravene the Tenth Amendment and to exceed congressional authority as bestowed by Article I, � 8 of the Constitution), aff'd sub nom. Koog v. United States, 79 F.3d 452 (5th Cir. 1996); Frank v. United States, 860 F. Supp. 1030, 1044 (D. Vt. 1994) (holding certain provisions of the Brady Act to be violative of the Tenth Amendment), rev'd, 78 F.3d 815 (2d Cir. 1996); Koog v. United States, 852 F. Supp. 1376, 1389 (W.D. Tex. 1994) (finding the Brady Act to be consistent with the dictates of the Tenth Amendment), rev'd, 79 F.3d 452 (5th Cir. 1996).

[112] N.Y. Penal Law �� 265, 400 (McKinney 1989 & Supp. 1997) (originally enacted as N.Y. Penal Law 1909 �� 1896, 1903).

[113] Cf. Kopel, supra note 13, at 393 ("[I]f 1 percent of illegal handgun owners in New York City were caught, tried, and sent to prison for a year, the state prison system would collapse." (citing Donald B. Kates, Jr., Guns, Murders, and the Constitution: A Realistic Assessment of Gun Control 59 (1990))).

[114] See Don B. Kates, Jr., Handgun Control: Prohibition Revisited, Inquiry, Dec. 5, 1977, at 20, 20 n.1.

[115] See Cal. Penal Code �� 12275-12290 (West 1992). The California law, entitled the Roberti-Roos Assault Weapons Control Act of 1989, bans rifles, handguns, and shotguns that (1) are designated as assault weapons by the statute, (2) are simply variations of those designated, or (3) possess characteristics sufficient to warrant inclusion on a list of assault weapons promulgated by the Attorney General. See id. � 12276.

[117] See Seth Mydans, Californians Defy Assault Weapons Law, Chi. Trib., Dec. 28, 1990, at 24, available in 1990 WL 2902280 (characterizing the civil disobedience of Gun Owners React as being in the tradition of Gandhi and Reverend Martin Luther King, Jr.).

[118] Cf. Kopel, supra note 13, at 231 n.210 (reporting that "approximately 10 percent have registered themselves as required by law").

[121] See id. ("The rate of compliance with semi-automatic bans in Boston, Cleveland, and other American cities has been about one percent.").

[123] See Wayne King, New Jersey Law to Limit Guns Is Being Ignored, N.Y. Times, Oct. 26, 1991, � 1, at 22, available in LEXIS, News Library, NYT File; Howard Rabb, New Jersey Politicians' Nightmare Comes True: Gun-Owners Stage Successful Mass Rebellion, GSSA Sentinel, Fall 1991, at 4.

[124] See Ban Gives No Ammunition to Either Side of Gun Debate: Not Much Has Changed in the Illinois Village That Enacted the Toughest Handgun Law in the Nation 10 Years Ago, Orlando Sentinel, June 14, 1992, at A14, available in 1992 WL 10608228.

[125] Cf. id. ("Of the 54 handguns taken in by Morton Grove police since 1982, 31 were surrendered voluntarily. Most of the rest were confiscated--usually during arrests for other matters.").

[126] See Kleck, supra note 40, at 409-10. This phenomenon is consistent with a poll revealing that 73% of Illinois residents would not obey a law requiring them to turn over their firearms to the federal government. See id. at 330 (citing David J. Bordua et al., Illinois Law Enforcement Commission, Patterns of Firearms Ownership, Regulation, and Use in Illinois (1979)).

[128] Don B. Kates, Jr., Some Remarks on the Prohibition of Handguns, 23 St. Louis U. L.J. 11, 29 (1979). The University of Wisconsin study concluded that it "is inevitabl[e] that gun control laws have no individual or collective effect in reducing the rates of violent crime." Id. at 26.

[130] See Don B. Kates, Jr., Why a Civil Libertarian Opposes Gun Control, 3 Civ. Liberties Rev. June/July 1976, at 24, 24 ("[E]nforcement of even a partial prohibition on handguns would take an immense toll in human liberty and bring about a sharp increase in repugnant police practices as well as hundreds of thousands of jail sentences."); see also David T. Hardy & Kenneth L. Chotiner, The Potentiality for Civil Liberties Violations in the Enforcement of Handgun Prohibition, in Restricting Handguns: The Liberal Skeptics Speak Out (Don B. Kates, Jr. ed., 1979) (discussing the potential for police abuse and popular resistance to handgun prohibition).

[132] See, e.g., Stephen Weaver, Freedom's Last Stand: Are You Willing to Fight for Your Guns?, Guns & Ammo, Sept. 1994, at 28, 29, 127 ("We cannot hope to prevail against a tyrannical government armed with fully automatic weapons when we are reduced to bolt actions or worse.... Do I know what I'm suggesting here? Yes I do. I am speaking of the specter of civil war while adamantly hoping it can be avoided.").

[133] See, e.g., Jeffrey R. Snyder, A Nation of Cowards, Pub. Interest, Fall 1993, at 40. Snyder stated:

[134] See Steve Lipsher, The Radical Right, Denv. Post, Jan. 22, 1995 (first of two-part series), at 1A, available in LEXIS, News Library, DPost File ("Frustrated by taxes, gun laws and intrusive regulations, a growing number of ultra-conservative 'patriots' has coalesced in Colorado to battle Big Brother--the government."); cf. Stacey Baca, Secrecy: The Key to Militias, Denv. Post, Jan. 23, 1995 (second of two-part series), at 1A, available in LEXIS, News Library, DPost File (quoting the head of the Colorado Free Militia: "'We are an organization founded to support, protect and defend the Constitution of the United States and Colorado. It may come to the point where we literally have to defend ourselves against the tyrannical government .... A gun is a very good tool to do that."').

[135] Cf. Baca, supra note 134 (reporting that "[a]n FBI report obtained by The Post" reveals that 3000 citizens have joined militias in Colorado); Lipsher, supra note 134 (reporting that "FBI documents" reveal that up to 3000 citizens have joined militias in Colorado alone).

[136] Cf. Stacey Baca, FBI Finds Militias Encompass a Cross-Section of Citizens, Denv. Post, Jan. 23, 1995, at 4A, available in 1995 WL 6564048 ("Militia members come from all walks of life, and that worries cops and watchdog organizations. The concern is noted in an FBI investigative document, which sizes up militia members as a cross-section of citizens.").

[137] An informative article on the militia movement (though typical of attempts to paint the movement with a broad brush) appears in Daniel Junas, Angry White Guys with Guns: The Rise of the Militias, Covert Action Q., Spring 1995, at 20. The author hints, correctly, that there are important distinctions between the small group of white supremacists, the larger group of conspiracy theorists, and the much larger group of disaffected "mainstream gun owners" who are being attracted to the movement as a result of the gun control measures adopted by the Bush and Clinton Administrations, not because these gun owners hold racist views. See id. at 20-25. For a less frantic view of militias, see Mack Tanner, Extreme Prejudice: How the Media Misrepresent the Militia Movement, Reason, July 1995, at 42.

While it is true that the "patriot" movement is composed of a significant number of conspiracy theorists and a much smaller number of supremacists, a tiny fraction of whom can rightly be described as potential terrorists, it is clear that the movement is actually more racially and ideologically diverse than commonly reported. For example, an author of a report by the Anti-Defamation League of B'nai B'rith has admitted: "[T]he movement overall is [not necessarily] fundamentally racist and anti-Semitic .... It is a factor but not the predominant factor by any means." Baca, supra note 136. Baca notes that James Johnson, a spokesman for the Ohio Unorganized Militia, is an African American. See id. Economist and nationally syndicated columnist Walter Williams is also an African American. Although Williams has not proclaimed himself a militia member, he recently called for private citizens to organize militias and evict federal agencies from their states should those agencies fail to heed Tenth Amendment resolutions passed by those states. See Walter Williams, Too Many Laws, and Fewer and Fewer Worth Obeying, Nat'l Educator, quoted in Wake-Up Call America, Aug. 1994, at 7.

Much is said and written about "right-wing" patriot groups, but little is mentioned about the libertarian contingent. Libertarians, who are adamantly progun and who believe in the right to resistance, nevertheless reject conspiracy theories and most of the other beliefs of the far right. These contrasting views unfortunately do not stop the media from linking libertarians with ultra conservatives. Commenting on one journalist's apparent inability to understand (or unwillingness to report) the distinction between libertarianism and the far right, Libertarian Party of Denver Chairman David Segal complained:

David Segal, in Letters to the Post, Denv. Post, Jan. 29, 1995, at D2, available in 1995 WL 6565815 (responding to Lipsher, supra note 134).

[138] Using a conservative percentage, assume that only 2% of the roughly 50 million American gun owners, see supra note 89 and accompanying text, would resort to force of arms in the face of prohibitive gun legislation. This would be about 1 million people.

Various polls suggest the potential for explosive growth of the militia movement. A Time/CNN poll indicates that 27% of Americans feel that armed resistance to the government is a right. See 1 in 4 Says Armed Opposition Is OK, Rocky Mtn. News (Reuters), Apr. 29, 1995, at 44A. According to the same poll, 52% of Americans feel that the government "has become so large and powerful it poses a threat to the rights and freedoms of ordinary citizens." See id. An ABC News/Washington Post poll shows that 36% of Americans agree that the federal government threatens personal rights and freedoms, but only 9% agree that violence against the government is sometimes justified. See Nightline (ABC television broadcast, May 17, 1995), available in LEXIS, News Library, Script File. According to the poll, 13% of Americans support private militias. See id. As ABC's Chris Bury points out, 9% and 13% of the population translates into 17 million and 25 million adults, respectively. See id.

[140] See 60 Minutes: The Resister (CBS television broadcast, Apr. 30, 1995). According to one member of the Special Forces writing in a recent issue of The Resister, published by an underground group of members of the Special Forces,

"John," SWCS Instructors Participating in Drug Raids, 1 Resister, Summer 1994, at 1, 4.

[141] See Ernest Guy Cunningham, Peacekeeping and U.N. Operational Control: A Study of Their Effect on Unit Cohesion (U.S. Navy, Naval Postgraduate School, Monterey, Cal., Mar. 1995) (indicating 61.66% of the 300 Marines surveyed stated they would not obey such orders, while 12% had no opinion).

[143] See Thomas M. Moncure, Jr., Who Is the Militia: The Virginia Ratification Convention and the Right to Bear Arms, 19 Lincoln L. Rev. 1, 6 (1990) ("General Gage ... attempt[ed] to seize arms and munitions at Lexington, Massachusetts, resulting in the 'shot heard round the world."'); cf. Essex Gazette, Apr. 25, 1775, at 3, col. 3 (giving a contemporary account of the happenings in Boston).

[145] For a discussion of the origin of the Second Amendment, as well as commentary by constitutional scholars, see infra notes 401-451 and accompanying text.

[146] For example, at the Virginia Convention to ratify the Constitution, George Mason pointed out that the British government had decided "to disarm the people ... was the best and most effectual way to enslave them." 3 Elliot's Debates on the Federal Constitution 380 (Jonathan Elliot ed., 1859).

[147] Sanford Levinson, Comment, The Embarrassing Second Amendment, 99 Yale L.J. 637, 657 (1989) ("If one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?").

[148] The American Political Dictionary states that the "right to bear arms is an implicit recognition of the right of revolution, stemming from the idea that a tyrant could not be overthrown if the people were denied the means." Jack C. Plano & Milton Greenberg, The American Political Dictionary 76 (6th ed. 1982). One of the earliest law review pieces devoted to the issue of the right to keep and bear arms concluded that the right to arms is "for preserving to the people the right and power of organized military defense of themselves and the state and of organized military resistance to unlawful acts of the government itself, as in the case of the American Revolution." Lucilius A. Emery, Note, The Constitutional Right to Keep and Bear Arms, 28 Harv. L. Rev. 473, 476 (1915). As to the question of when armed resistance is justified--when it becomes lawful resistance as opposed to insurrection--the Founders were clear that violence must always be the last resort. See The Origin of the Second Amendment: A Documentary History of the Bill of Rights xlvi (David E. Young ed., 2d ed. 1995) [hereinafter The Origin of the Second Amendment]. All peaceful means of redressing the situation must be pursued, they argued, before shots may be fired. See Glenn Harlan Reynolds, Up in Arms About a Revolting Movement, Chi. Trib., Jan. 30, 1995, at 11, available in 1995 WL 6161015.

There has been an explosion of Second Amendment research in the last two decades, resulting in a number of people within the legal academy converting, sometimes reluctantly, to the "individual right" interpretation of the Second Amendment. One of these converts is Duke Law School constitutional law professor William Van Alstyne who, while not supporting every position taken by the NRA on gun control, nevertheless states that the individual right stance "advanced by the NRA with respect to the Second Amendment is extremely strong .... Indeed, it is largely by the 'unreasonable' persistence of just such organizations in this country that the Bill of Rights has endured." William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1255 (1994).

These scholars point out that the current militia phenomenon is not unprecedented. American history has witnessed a number of instances in which Americans have taken up arms in response to perceived acts of despotism on the part of government. The current situation, in fact, bears some similarity to the state of affairs that shortly preceded the Revolutionary War. In response to what the colonials perceived as a systematic British assault upon their rights, independent local militias were formed all over the colonies, often in opposition to the will of the royal governors. These militia "associations" were usually created through declarations or resolutions by county entities, much in the same way that certain county commissions have recently created their own militias. See infra note 283. For example, George Mason and George Washington formed the Fairfax County Militia Association by resolution. See Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 60 (2d ed. 1994). In this resolution, George Mason declared: "'Threat'ned with the Destruction of our Civil-rights, & Liberty, ... we will, each of us, constantly keep by us"' arms and ammunition. Id. (quoting George Mason). In other places, the refusal of local government entities to create militias did not prevent the formation of autonomous militias. As a writer from Georgia warned: "'[T]he English troops in our front, and our governors forbid giving assent to militia laws, make it high time that we enter into associations for learning the use of arms, and to choose officers ...."' Id. (quoting the Williamsburg Virginia Gazette, Oct. 27, 1774). Similar associations had been formed all over the colonies by the time the Revolution came to an end. See id. at 60-65 (discussing various colonial military associations).

Autonomous militias were also formed by African Americans during the 1960s to protect the black community and the civil rights movement from racist groups, such as the Ku Klux Klan, which often engaged in terrorism with approval from law enforcement authorities. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 356-58 (1991).

[150] Thomas Jefferson is perhaps the best known of the leading Founders for insurrectionist utterances. With reference to Shays' Rebellion, Jefferson reminded James Madison that "a little rebellion now and then is a good thing .... It is a medecine [sic] necessary for the sound health of government." Letter from Thomas Jefferson to James Madison (Jan. 30, 1787), in The Portable Thomas Jefferson 415, 417 (Merrill D. Peterson ed., 1975). Jefferson also asked: "[W]hat country can preserve it's [sic] liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms .... The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants." Letter from Thomas Jefferson to William Stephens Smith (Nov. 13, 1787), in The Origin of the Second Amendment, supra note 148, at 102.

[151] See, e.g., Dennis Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev. 107 (1991). Henigan, who serves as Director of the Legal Action Project at the Center to Prevent Handgun Violence in Washington, D.C., argues that Levinson's insurrectionist interpretation of the Second Amendment spells an end to the rule of law in America. See id. at 123. It is not surprising, therefore, that Henigan's response to the Santa Rosa County Commission's militia resolution is that it creates only a "bogus local militia." See Larry Rohter, County Creates Militia to Defend Gun Rights, N.Y. Times, May 29, 1994, at L14, available in LEXIS, News Library, NYT File. If Santa Rosa County's militia is "bogus," then so were those militias formed by American counties to fight the British during the Revolutionary War. Having insisted that a militia is something created only by the government, antigun groups now face the uncomfortable problem of having to explain away militias that are created by governments.

[152] The distinction between justifiable resistance to tyranny and insurrection is clearer in theory than in practice. The current militia movement--many of whose members adhere to conspiracy theories--advocates "working within the system," because the federal government and the United Nations have not made a violent effort to impose full-scale tyranny. See Tanner, supra note 137, at 45, 47. Likewise, the revolutionaries of the 1770s also worked within the system (through petitions to Royal Governors and the like), until they became convinced that the various problems with the British were more than just a large collection of problems--that the individual abuses were elements of a monarchical plot to reduce the Americans to slavery. See The Declaration of Independence para. 2 (U.S. 1776). For more on the colonists as conspiracy buffs, see Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology 42-51 (1978). It was essential to 1770s Patriots that they demonstrate--to themselves and to the world--the justice of their rebellion by showing that there was a master plot. For this reason, the Declaration of Independence, before detailing King George's "long train of abuses and usurpations," put those abuses and usurpations in context: Americans have suffered "a long train of abuses and usurpations, pursuing invariably the same Object [that] evinces a design to reduce [the Americans] under absolute Despotism." The Declaration of Independence, supra, at para. 2 (emphasis added).

In fact, Jefferson and the rest of the 1770s "Patriot movement" were wrong. Although King George III pursued a terrible, destructive policy toward the American colonies, there was no "design" to reduce the Americans under "absolute Despotism." The King was heavy-handed, but he had no master plan; his policies were reactionary.

[153] See The Declaration of Independence, supra note 152, at para. 1 (declaring that humans have a right and a duty to overthrow tyrannical government); Luther Martin, Genuine Information X, Md. Gazette, Feb. 1, 1788, reprinted in The Origin of the Second Amendment, supra note 148, at 246.

[163] See Whit Cobb, Democracy in Search of Utopia: The History, Law, and Politics of Relocating the National Capital, 99 Dick. L. Rev. 527, 529-38 (1995).

[164] See Paul Farhi, D.C. Rated As Nation's Yuppie Capital, Wash. Post, May 25, 1990, at F1, available in 1990 WL 2129720.

[165] See id.; see also Paul Farhi, Not Your Ordinary Metropolis, Wash. Post, Aug. 6, 1989, at A1, available in 1989 WL 2040394 (citing results of consumer research studies).

[169] See id. at 422-28 (discussing the technological weapons advance and shortfalls of the ancient Chinese, Greeks, and Romans).

[170] See id. at 445 ("With the present system of international arms trade, governments cannot control the flow of arms downward.").

[171] Marina concludes: "As the international arms trade increases ... more people will obtain access to guns as governments lose control over the great number of arms being traded." Id. at 441-42. Firearms prohibition is thus "a dubious if not impossible proposition in any given country, and certainly in one with the personal freedoms long enjoyed by Americans." Id. at 444.

[175] See Helene Fontanaud, Chirac Takes Center Stage: Britain, U.S. Admonished to 'Pull Themselves Together,' S.F. Chron., July 15, 1995, at A8, available in 1995 WL 5290810; Stephen J. Hedges et al., Will Justice Be Done? Bosnia's War Has Ended, but Its Worst Criminals Are Still at Large, U.S. News & World Rep., Dec. 25, 1995, at 44, available in 1995 WL 13413526.

[182] See Platform, supra note 5, at 19 (arguing that curbs on "verbal expressions of racism, sexism, and other slurs" are not necessarily violative of the First Amendment and should be employed).

[184] For other items on the Communitarian Agenda, see supra notes 14-29 and accompanying text.

[187] Etzioni is opposed to "minting" any new rights for humans, which makes it unlikely that new rights for animals would be recognized. His other reference to "animal rights" is a passage referring to terrorism. See The Spirit of Community, supra note 33, at 42, 199 (mentioning how some Americans go to extremes fighting for animal rights).

[189] For more on the culture of gun collectors, see Barbara Stenross, The Meanings of Guns: Hunters, Shooters, and Gun Collectors, in The Gun Culture and Its Enemies 53-55 (William R. Tonso ed., 1990). There are many more gun collectors than there are gun criminals; there are hardly any articles on the former, and innumerable articles on the latter. By treating nonviolent, lawful uses of firearms as barely worth study, the mainstream of modern sociology produces a distorted picture of firearms in America.

[190] See Richard H. Gilluly, Editorial, A Second Look at Mencken, Balt. Sun, June 21, 1995, at 15A, available in 1995 WL 2448743 (explaining that Mencken created the pejorative term--"the booboisie"--to show his disdain for ordinary people).

[191] Theodore H. White, America in Search of Itself 431 (1982) (quoting Richard M. Nixon).

[192] "[T]rue communal values cannot be imposed by an outside group or an internal elite or minority but must be generated by the members of community in a dialogue which is open to all and fully responsive to the membership." Amitai Etzioni, Old Chestnuts and New Spurs, in New Communitarian Thinking: Persons, Virtues, Institutions, and Communities 17 (Amitai Etzioni ed., 1995) [hereinafter Old Chestnuts]. Communitarians should seek "political modes of ... compromise that seek creative syntheses from different interests and divergent moral concerns." Thomas A. Spragens, Jr., Communitarian Liberalism, in New Communitarian Thinking: Persons, Virtues, Institutions, and Communities 50 (Amitai Etzioni ed., 1995).

[193] See Ronald B. Brown, Homemade Guns and Homemade Ammo (1986); Bill Holmes, Home Workshop Guns for Defense and Resistance: The Handgun (1979).

[194] See supra notes 115-123 and accompanying text (discussing the disobedience of assault weapons owners in California, Denver, and New Jersey after these jurisdictions passed stringent gun control measures).

[195] See supra notes 104-109 and accompanying text (discussing the resistance of American law enforcement personnel to disarmament).

[196] It is precisely stubborn realities such as these that led former ACLU Executive Director Aryeh Neier to conclude that because "reprehensible police practices are probably needed to make anti-gun laws effective, my proposal to ban all guns should probably be marked a failure before it is even tried." Hardy & Chotiner, supra note 130, at 194.

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COMMUNITARIANS, NEOREPUBLICANS, AND GUNS:
ASSESSING THE CASE FOR FIREARMS PROHIBITION

Introduction

I. The Communitarian Network and Domestic Disarmament

A. The Communitarian Agenda

B. The Communitarian Movement

C. The Case for Domestic Disarmament

II. The Feasibility and Communitarian Implications of
Domestic Disarmament

A. Guns and Other Dangerous Items

B. Country, Court, and the Crisis of Legitimacy

C. Summary

Copyright� 1998

COMMUNITARIANS, NEOREPUBLICANS, AND GUNS: ASSESSING THE CASE FOR FIREARMS PROHIBITION

Introduction

I. The Communitarian Network and Domestic Disarmament

A. The Communitarian Agenda

B. The Communitarian Movement

C. The Case for Domestic Disarmament

II. The Feasibility and Communitarian Implications of Domestic Disarmament

A. Guns and Other Dangerous Items

B. Country, Court, and the Crisis of Legitimacy

C. Summary

Copyright� 1998

COMMUNITARIANS, NEOREPUBLICANS, AND GUNS:
ASSESSING THE CASE FOR FIREARMS PROHIBITION

II. The Feasibility and Communitarian Implications of
Domestic Disarmament