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Saturday, May 31, 2014

"The Founders never intended to create an unregulated individual right to a gun"

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How the NRA Rewrote the Second Amendment
The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here’s how it happened.

By Michael Waldman, May 19, 2014

“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.

Twenty-five years later, Burger’s view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in bars—even in churches.

Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.

So how does legal change happen in America? We’ve seen some remarkably successful drives in recent years—think of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Association’s long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

***

The Second Amendment consists of just one sentence: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Today, scholars debate its bizarre comma placement, trying to make sense of the various clauses, and politicians routinely declare themselves to be its “strong supporters.” But in the grand sweep of American history, this sentence has never been among the most prominent constitutional provisions. In fact, for two centuries it was largely ignored.

The amendment grew out of the political tumult surrounding the drafting of the Constitution, which was done in secret by a group of mostly young men, many of whom had served together in the Continental Army. Having seen the chaos and mob violence that followed the Revolution, these “Federalists” feared the consequences of a weak central authority. They produced a charter that shifted power—at the time in the hands of the states—to a new national government.

“Anti-Federalists” opposed this new Constitution. The foes worried, among other things, that the new government would establish a “standing army” of professional soldiers and would disarm the 13 state militias, made up of part-time citizen-soldiers and revered as bulwarks against tyranny. These militias were the product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age 16 to 60 was enrolled. He was actually required to own—and bring—a musket or other military weapon.

On June 8, 1789, James Madison—an ardent Federalist who had won election to Congress only after agreeing to push for changes to the newly ratified Constitution—proposed 17 amendments on topics ranging from the size of congressional districts to legislative pay to the right to religious freedom. One addressed the “well regulated militia” and the right “to keep and bear arms.” We don’t really know what he meant by it. At the time, Americans expected to be able to own guns, a legacy of English common law and rights. But the overwhelming use of the phrase “bear arms” in those days referred to military activities.

There is not a single word about an individual’s right to a gun for self-defense or recreation in Madison’s notes from the Constitutional Convention. Nor was it mentioned, with a few scattered exceptions, in the records of the ratification debates in the states. Nor did the U.S. House of Representatives discuss the topic as it marked up the Bill of Rights. In fact, the original version passed by the House included a conscientious objector provision. “A well regulated militia,” it explained, “composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

Though state militias eventually dissolved, for two centuries we had guns (plenty!) and we had gun laws in towns and states, governing everything from where gunpowder could be stored to who could carry a weapon—and courts overwhelmingly upheld these restrictions. Gun rights and gun control were seen as going hand in hand. Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia. As the Tennessee Supreme Court put it in 1840, “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

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Cue the National Rifle Association. We all know of the organization’s considerable power over the ballot box and legislation. Bill Clinton groused in 1994 after the Democrats lost their congressional majority, “The NRA is the reason the Republicans control the House.” Just last year, it managed to foster a successful filibuster of even a modest background-check proposal in the U.S. Senate, despite 90 percent public approval of the measure.

What is less known—and perhaps more significant—is its rising sway over constitutional law.

The NRA was founded by a group of Union officers after the Civil War who, perturbed by their troops’ poor marksmanship, wanted a way to sponsor shooting training and competitions. The group testified in support of the first federal gun law in 1934, which cracked down on the machine guns beloved by Bonnie and Clyde and other bank robbers. When a lawmaker asked whether the proposal violated the Constitution, the NRA witness responded, “I have not given it any study from that point of view.” The group lobbied quietly against the most stringent regulations, but its principal focus was hunting and sportsmanship: bagging deer, not blocking laws. In the late 1950s, it opened a new headquarters to house its hundreds of employees. Metal letters on the facade spelled out its purpose: firearms safety education, marksmanship training, shooting for recreation.

Cut to 1977. Gun-group veterans still call the NRA’s annual meeting that year the “Revolt at Cincinnati.” After the organization’s leadership had decided to move its headquarters to Colorado, signaling a retreat from politics, more than a thousand angry rebels showed up at the annual convention. By four in the morning, the dissenters had voted out the organization’s leadership. Activists from the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms pushed their way into power.

The NRA’s new leadership was dramatic, dogmatic and overtly ideological. For the first time, the organization formally embraced the idea that the sacred Second Amendment was at the heart of its concerns.

The gun lobby’s lurch rightward was part of a larger conservative backlash that took place across the Republican coalition in the 1970s. One after another, once-sleepy traditional organizations galvanized as conservative activists wrested control.

Conservatives tossed around the language of insurrection with the ardor of a Berkeley Weatherman. The “Revolt at Cincinnati” was followed by the “tax revolt,” which began in California in 1979, and the “sagebrush rebellion” against Interior Department land policies. All these groups shared a deep distrust of the federal government and spoke in the language of libertarianism. They formed a potent new partisan coalition.

Politicians adjusted in turn. The 1972 Republican platform had supported gun control, with a focus on restricting the sale of “cheap handguns.” Just three years later in 1975, preparing to challenge Gerald R. Ford for the Republican nomination, Reagan wrote in Guns & Ammo magazine, “The Second Amendment is clear, or ought to be. It appears to leave little if any leeway for the gun control advocate.” By 1980 the GOP platform proclaimed, “We believe the right of citizens to keep and bear arms must be preserved. Accordingly, we oppose federal registration of firearms.” That year the NRA gave Reagan its first-ever presidential endorsement.

Today at the NRA’s headquarters in Fairfax, Virginia, oversized letters on the facade no longer refer to “marksmanship” and “safety.” Instead, the Second Amendment is emblazoned on a wall of the building’s lobby. Visitors might not notice that the text is incomplete. It reads:
“.. the right of the people to keep and bear arms, shall not be infringed.”
The first half—the part about the well regulated militia—has been edited out.

***

From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amendment concluded it did not guarantee an individual right to a gun. The first to argue otherwise, written by a William and Mary law student named Stuart R. Hays, appeared in 1960. He began by citing an article in the NRA’s American Rifleman magazine and argued that the amendment enforced a “right of revolution,” of which the Southern states availed themselves during what the author called “The War Between the States.”

[Major snippage.  It is recommended that you go to the site and read the rest.]
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