J. Neil Schulman’s Stopping Power — Open Messages to Judge Glen Ashman
Go to book’s beginning.
Read the previous chapter Reserve Militia Training and Regulation Act: a Proposal
Stopping Power — Why 70 Million Americans Own Guns
A Book by J. Neil Schulman
“With Liberty and Justice For All”
The arguments for firearms rights don’t exist in a vacuum. They touch issues of general political history, theories of crime and punishment, social rights and regulations, and what it means to grow up. Most of what I wrote in this section began in arguments via computer conferencing systems, as disagreements about firearms issues spilled over into arguments about everything from abortion to TV violence.
This is the section of the book where I’m most likely to get cheers and jeers from traditional NRA members. They’ll like what I have to say about firearms rights. They’re not as likely to like what I have to say about much of anything else. — JNS
Open Messages to Judge Glen Ashman
The following messages, posted in the Gun Control topic in the “Legacy” Legal RoundTable on GEnie, were to Judge Glen Ashman, who at the time of the exchange sat on the City Court in East Point, Georgia, and was running for Superior Court in Clayton County, Georgia. Judge Ashman argued in previous messages that “the second amendment is not absolute” and allows some federal regulation on firearms, and that “unlike the other bill of rights [the second amendment] has never been made applicable to the states, so state bans on guns are constitutional.”
Judge Ashman’s personal opinion, from a message posted in the Gun Control Topic on March 6, 1992, was as follows: “We need a ban on handguns, and on most other guns not used for hunting. We need a safety course requirement before you can buy a gun. … We need waiting periods to buy and background checks too.”
It was in this context that I opened a discussion with him. For copyright reasons, I include only my messages. – JNS
Mon Mar 16, 1992 at 22:48 EST:
Judge Ashman, since I am not in your court and you can’t cite me for contempt, let me explain to you why I will never surrender my arms to any government official, nor will I let any legislature, court, or other official disarm me or tell me the time or manner in which I may carry my arms.
The question on arms is: who is sovereign in a free society — the people or the State? The question of keeping and bearing arms is the question of where power is ultimately to reside: in the hands of the people, or in the hands of government officials, whether they style themselves “representatives” of the people, judges, or police.
The power to disarm is the power to conquer. If some government official has the power to say that a private person does not have the right to be armed, then that government official has sovereign power, and the private person being denied that right is merely a subject.
It is right and proper to discuss tests for whether a government official or employee may or may not be armed. But for a private, sovereign citizen to be so questioned in any way is an affront to the concept that the people are sovereign.
The position that there must be government-administered tests to keep and bear arms is no different than the position that there must be government-administered tests for a citizen to vote, or for a citizen to own property, or for a citizen to speak freely. They are all of a piece. They are all attempting to replace the sovereignty of the people with the sovereignty of the official, who will use this sovereign power to grant privileges and favors.
This is what the American Revolution was fought to overthrow. That we have it back is a grand scandal on this continent, and a tragedy for a country that was once a beacon of liberty to the human race.
Free human beings — free men in the gender-free sense of the word — do not ask permission to bear arms. They bear arms because they are free. Their arms are their empowerment as sovereigns. Their arms are a warning to all criminals, invaders, and kings that they will not have their liberties trifled with.
The Declaration of Independence states the question clearly. It says, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
At the point where a government declares itself sovereign, and me its subject — which any attempt to disarm me does — then I withdraw my consent to be governed and further hold, as did the Declaration of Independence, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
I do not delegate my fundamental rights to a representative to decide whether or not they shall be taken from me. I do not grant any court the moral right to decide this question. I am a free man and intend to remain so. I may be conquered by villains with more guns on their side. But I will never concede that they have any right to do so.
I do not think judges hear warnings like this very often. Judges tend to get into the habit of thinking that they have power. They issue an order for someone to be carried to jail, and armed officers enforce it.
There are not enough bailiffs, police, marshals, or soldiers to disarm the American people. There are seventy million of us armed, and we will not tolerate it.
If you deprive the people of our rights, we hold the right — and the final power — to take from you the authority to rule on our laws. Our highest law of the land says, in plain language, “the right of the people to keep and bear arms shall not be infringed.”
You have a choice. You can enforce that law — and to hell with the precedents of cowards, liars, and poltroons who sat on benches before you and corrupted its meaning — or you can begin to contemplate the manner that the American people will use to bring down that court into rubble, and replace it with a judge who will enforce it.
Perhaps you think there are not many who will agree with me passionately enough to back this position with our lives, our fortunes, and our sacred honor.
King George the Third didn’t think so, either.
J. Neil Schulman,
Tue Mar 17, 1992 at 23:57 EST:
Judge Ashman, I didn’t come by my opinion lightly. First of all, the warning against “anarchy” doesn’t work with me, since I’ve probably called myself an anarchist as much as any other label for the last two decades. Not that I believe in nihilism or terrorism; I merely believe that social institutions — whether they’re joint stock companies or condo associations or even “governments” — can’t make third party contracts without the consent of the third parties. A legislature or court can’t deprive me of my rights, because I don’t grant them jurisdiction to do so. I grant jurisdiction for dispute settlement, and to reduce criminal invasions against life, liberty, and property. But there is a natural and logical limit to that jurisdiction: when it ceases to work to those ends, I call a halt.
I’ve called a halt. I won’t have my right to bear arms infringed. My consent is publicly withdrawn from any institution that attempts to do so, and I will use any effective and moral means at my disposal to see that my rights — and those of my fellow countrymen — are not abridged.
You are right. The Supreme Court, if they wish to avoid a civil war in this country, had better come out with a decision that enforces the Second Amendment. If they do, lower courts and politicians better obey. If the Supreme Court abdicates its duty to enforce the Constitution, then it’s time to impeach the Justices by any moral means necessary, and replace them with Justices who take the Framers seriously.
I had the late Roy Copperud, the definitive expert on American Usage and Style, analyze the text of the Second Amendment. I can email you (or post here) a copy of the article I wrote based on his analysis of the text. What Copperud said is that the words “A well-regulated militia being necessary to a free state” are grammatically incapable of acting as a restriction on the only clause in that sentence, which is, “the right of the people to keep and bear arms shall not be infringed.” The reference to a well-regulated militia (aside from being redundant; it’s another way of saying “the people as a whole, armed and ready”) is a present participial phrase. It is not a subordinate clause; it is not a restrictive clause; it is not a clause at all. It is an explanation of why this right is being mentioned in the Constitution, rather than being taken for granted, with all the rights preserved but not enumerated in the Ninth Amendment.
Let’s talk about some of the “limits” on freedom you mention.
Speed limits: limited by contract, when you agree to drive on state highways. A libertarian can argue that the state should not be building roads or operating them — and an anarchist can argue that they should be liberated from state control — but nonetheless there is an explicit agreement when one applies for a license to abide by the state’s rules of the road.
Perhaps the battle over roads was more important than our ancestors thought. The principle of state control over our right of passage seems to have eroded all sorts of other rights as well.
Libel laws do not limit freedom of speech. They limit freedom of lying. They say in essence that the passage of provably toxic information — false and damaging — is action, rather than symbolism. There is a clear epistemological difference.
DUI laws — same argument as speed limits. On a private road, with everyone signing waivers of risk and liability, I would have no possible objection to drunk driving. A sign at the on ramp should probably say something like, “ABANDON HOPE ALL YE WHO ENTER.”
Zoning laws are another example of private rights being violated by the state. There are contractual alternatives which are acceptable — land-use covenants, condo agreements, etc. But the idea that a government should be able to condemn or restrict the use of someone else’s property is another major violation of private sovereignty.
As for criminal laws — well, if by that you mean the invasion of another’s right to life, liberty, or property — then that is the one alienation of rights I observe as valid. A person who invades another has entered into what one theorist1 has called an “anti-contract”: a contract for past performance. By their actions, they have already agreed to the cost of their invasive acts.
That current legal statutes don’t rest on such logic don’t bother me at all. I am not a lawyer. I’m a sovereign citizen fighting for my rights.
What bothers me is that you hold authority granted you by sovereign citizens, and your personal opinions, if enacted by you on the bench, would violate that sovereignty. By doing so, you violate your orders. You are told to uphold their rights. You would infringe them.
I appreciate your being in this discussion to listen to the opinions of people, such as me, who are not lawyers, and do not care for precedents. As a matter of fact, I don’t even care much for law itself. I only care about rights and justice, equity and fairness. To the extent that the written statutes bring about that result, they should be observed. When they cease to do so, the law is destructive, and must be disobeyed as strictly as obedience to a just law.
You may very well end up sitting on a gun case some day, in which the fate of some citizen is in your hands. On that day, you will have a choice. You will either break with the precedent of bad law and enforce the sovereign rights of the citizen “in the dock,” or you will bend to tradition and rob him of his rights.
I hope you find the truth of this before that day is again before you.
Wed Mar 18, 1992 at 23:10 EST:
Judge Ashman, if quoting the Declaration of Independence on the right to overthrow despotic government is treason in the United States, that is proof the despots are in charge and the revolution is overdue. One would have to be pretty cowardly — in a country which is heir to Patrick Henry, Sam Adams, and Thomas Jefferson, just to name a few — to worry about that for a split second.
As a matter of fact, the Constitution defines treason in Article 3, Section. 3. as: “Treason against the United States shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two witnesses to the same overt Act, or on Confession in open Court.”
There isn’t a word in the Constitution about sedition, or overthrowing the government.
In fact, I prefer ballots to bullets. In the last 24 hours we have seen a referendum in South Africa abolish apartheid. Last year we saw the world’s most evil empire collapse with virtually no bloodshed. Good for the despots! They may finally have learned something from history if they realize that guns won’t save their lives if the people say “enough.”
But I don’t count on despots or ruling classes to give up their power without a fight. Much blood was shed in South Africa before this referendum was possible. The people in the former Soviet Union had flexed their muscles enough to let the coup-plotters know they were finished.
I believe in keeping my powder dry.
Let me go back to your other points, in order. You say there is a problem with “misuse.” Well, that is precisely the non sequitur that statutes in this country perpetrate:
Premise: a thing can be misused;
Conclusion: that thing, and its proper use, must therefore be regulated.
This logical mistake is the justification for endless tyranny because there is nothing that can not be misused.
Water can quench thirst; it can also be used to drown a person.
A baseball bat can hit a home run; it can also fracture a skull.
A kitchen knife can carve Thanksgiving turkey; it can also carve Grandma.
A chain saw can make a clearing to build a house in the woods. It’s also Jamie Lee Curtis’s old nightmare.
We are a tool-using race. Everything we touch becomes our tool. Our legends tell us that God created a perfect world. A few years later, Cain found the tool to murder his brother Abel.
Firearms are a tool, an “anti-personnel” weapon. If the person using it is wicked, the tool will be used for evil. If the person using it is good, the tool will be used to stop evil.
For most of the Cold War, Great Britain and France had nuclear capability. Why is it we were worried about nuclear attack by the Soviet Union and not France or Britain? The answer is simple and telling: we did not think the people of France or Britain were evil, so we did not fear their weapons.2
Good people should be armed against evil people. Bad people, when they use their weapons to commit evil, should be stopped.
If guns are the number one cause of death for young black males, then good young black males need to be heavily armed, and the faster the better. Evidently their murderers are armed already.
As far as background checks, I have no objection to background checking criminals who have already forfeited their sovereignty. In my novel The Rainbow Cadenza I postulated implanting radio transponders into criminals to mark them. (Mind you, the society that did this in my novel used this technology badly because innocent people, by our standards, were declared criminal; there is no tool that can’t be misused.) Nevertheless, if you feel the need to hunt down criminals to disarm them, feel free to suggest this. It’s already being used on livestock.
As far as discussing the “law” on gun control, it is far too narrow to discuss statutes and legal precedents without a prior discussion of philosophy of law and natural rights. That is what is missing from gun-control debates today. Everyone wants to discuss social utility — whether law (a) will produce effect (b). Well, it’s possible to discuss the social utility of slavery, also. It’s wonderful for the masters, isn’t it? The masters have dirt-cheap labor — and kinky sex on the side. One can easily define the slaves as animals, rather than humans; that avoids the problem of discussing rights, doesn’t it?
Funny how this argument strikes us as hollow now.
Rights must be discussed first. Only then can you discuss social usefulness.
In my previous message I stood on my right as a sovereign citizen to either consent, or not consent, to being governed, according to whether the government protected my rights or violated them. I don’t care what the legislators decide on the subject; I don’t give a damn what the courts have decided. These are my rights we are discussing. Respect them or else. I stand in the tradition of Jefferson, Adams, and Henry: and our public servants had better get the hell out of the armory — the master just got home to take charge.
As far as your oath to support the Constitution as amended, that is an oath to the Constitution, not to precedents. If those precedents defy the Second Amendment, it is your duty to the Constitution, and to the people of the United States, to rule that way. If you are overruled, you will have done your duty, and it will be the judge who has overruled you who will have to deal with the people’s just wrath for that act of sedition.
1 Samuel Edward Konkin III.
2 Thanks to KABC Talk Radio host Dennis Prager for this analogy.
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