JUNE 28, 2016 – After Orlando, Sandy Hook, Virginia Tech too many mass murders with the use of firearms, it is clear that we have a serious problem. Since 1968, more Americans have died from gun violence than in all the wars in our history.
In recent years, the National Rifle Association (NRA) has promoted the idea that reasonable gun control measures, such as keeping those on the terrorist watch list from purchasing weapons or banning military-style assault rifles, are, somehow, in violation of the Second Amendment.
There is no legitimate constitutional basis for this argument and those who have accepted it as true, in the Congress and elsewhere, would do well to look at the history of this amendment and understand what it really means.
In 1991 former Supreme Court Chief Justice Warren Burger, a conservative Republican, declared:
“The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud on the American people by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies, the militia, would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”
It is important to carefully review the history of the Second Amendment. Adopted on Dec. 15,1791, as ratified by the states and authenticated by Thomas Jefferson, who was then Secretary of State, it read:
“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.”
The NRA claims allegiance to the Second Amendment but, in fact, promotes only the part of it which meets their present ideological needs. In the NRA’s headquarters building, for example, the Second Amendment’s words are inscribed on the wall in the lobby.
But the NRA has provided not the complete amendment, but an edited version. The words “A well regulated militia being necessary to the security of a free state” have been removed.
Historically, the Supreme Court has considered the meaning of the Second Amendment on a number of occasions. In U.S. v. Cruikshank (1876), the Court ruled that,
“The right to bear arms is not granted by the Constitution; neither is it any manner dependent upon that instrument for its existence,” and limited the applicability of the Second Amendment to the federal government.
In U.S. V. Miller (1939), the Court ruled that the federal government and the states could limit any weapons types not having a “reasonable relationship to the preservation of a well regulated militia.”
In recent years, there has been debate over whether the Second Amendment protected an “individual” right or a “collective” right. The “states’ rights” or “collective rights” model held that the Second Amendment does not apply to individuals; rather it recognizes the right of each state to arm its militia.” Under this approach, citizens have no right to keep or bear arms but the states have a collective right to have the National Guard.
Advocates of collective rights models argued that the Second Amendment was written to prevent the federal government from disarming state militias, rather than secure an individual right to possess firearms. Prior to 2001, every Circuit Court decision that interpreted the Second Amendment endorsed the “collective right” model.
Beginning with U.S. V. Emerson in 2001, some Circuit Courts began to recognize that the Second Amendment protects an individual right to bear arms.
The NRA was founded by a group of Union Army officers after the Civil War. It sponsored shooting training and competitions. In 1934, the NRA testified in support of the first federal gun law, which cracked down on the machine guns used by Bonnie and Clyde and other bank robbers. When a lawmaker asked whether the proposal violated the Constitution, the NRA witness said: “I have not given it any study from that point of view.”
The group’s principal focus was hunting and sportsmanship, not blocking legislation.
Beginning in 1977, the NRA changed course and began a 30 year legal campaign to change how the courts and the country saw the Second Amendment. Millions of dollars were spent subsidizing scholars and law professors who would promote their new-found view of the Second Amendment.
Much of this money came from gun manufacturers. This culminated in the 5-4 Supreme Court decision in 2008 in the case of D.C. v. Heller, which held that individuals have the right to possess and carry firearms.
Even the Court majority, however, affirmed that the government had the power to regulate the purchase of weapons. In the majority opinion, Justice Antonin Scalia noted that:
“Yes, there is an individual right, but it can be limited. And the extent of the limits are not really clear. Dozens of judges have ruled…and overwhelmingly they have upheld district gun laws. They’ve said, ‘Yes, there’s an individual right, but society, too, has a right to protect itself.'”
In Heller, Justice Scalia said that the decision was a “vindication” of his approach of “originalism,” seeking to discover what the authors of the Second Amendment really meant. For more than two hundred years, every court examining this amendment, came to a different conclusion.
In Heller, Justice Scalia skipped over the actual writing and purpose of the amendment. Out of 64 pages in the decision, only 2 deal with the question of militias, which is what all previous judges believed the authors were talking about.
In his dissent in Heller, Justice John Paul Stevens writes:
“The Amendment’s text does justify a different interpretation: the ‘right to keep and bear arms’ protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase ‘bear arms’ to encompass civilian possession and use, they could have done so by the addition of phrases such as ‘for defense of themselves.'”
In his book, “The Second Amendment: A Biography,” Michael Waldman, president of the Brennan Study for Justice at New York University, argues that,
“Justice Scalia said he was following his doctrine of originalism. But when you actually go back and look at the debate that went into drafting that amendment, you can squint and look really hard, but there’s simply no evidence of it being about individual gun ownership for self-protection or hunting. Emphatically, the focus was on militias. To the framers, that phrase ‘a well-regulated militia’ was really critical.”
According to Professor Waldman,
“In the debates, in James Madison’s notes on the Constitutional Convention, on the floor of the House of Representatives, as they wrote the Second Amendment, all the focus was about militias. Now at the same time, those militias are not the National Guard. Every adult man, and eventually every adult white man, was required to be in the militias and was required to own a gun, and to bring it from home. So it was an individual right to fulfill the duty to serve in the militias.”
This point is emphasized in Justice Stevens’s dissent, which was joined by three other Justices:
“When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than this was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence.”
We can understand the motivation of the NRA and the gun manufacturers which support it for promoting the proliferation of weapons—from hand-guns to military-style assault rifles—for they stand to profit from such a policy. Why anyone else would support such a mis-reading of the Constitution, especially people who call themselves conservatives, is more difficult to understand. The most prominent conservative political leader of our time, Ronald Reagan, was a strong supporter of a ban on assault rifles.
Polls show that more than 80% of Americans support such a ban, including a majority of NRA members.
It has been pointed out over the years that the Constitution is “not a suicide pact.” This precise phrase was first used by Supreme Court Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago (1949). In that case, the majority opinion by Justice William O. Douglas, a liberal judicial activist, overturned the disorderly conduct conviction of a priest whose rantings at a rally incited a riot.
The Court held that Chicago’s breach of the peace ordinance violated the First Amendment. Associate Justice Robert Jackson wrote a 24-page dissent, which concluded:
“The choice is not between order and Liberty. It is between Liberty with order and anarchy without either. There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Constitutional Bill of Rights into a suicide pact.”
Despite claims by the NRA, the gun manufacturers and their advocates in Congress, the Second Amendment means today precisely what it did many years ago when this writer studied constitutional law in law school and, later, taught that same subject.
There is nothing “conservative” about resisting reasonable limitations on gun ownership. Even Justice Scalia said this clearly in the Heller case.
As Justice Stevens declared,
“Even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the Court’s decision in Heller.”
As Jackson wrote, the Constitution is not a “suicide pact,” although those who resist efforts to minimize gun violence are trying to make it into precisely that. Anyone who thinks that doing so is, somehow, embracing a “conservative” position reveals a lack of understanding of the American political tradition.
All of us have paid a high price for this indifference to public safety in the name of a “right” which has been re-imagined, in terms the Founding Fathers and the authors of the Constitution never had in mind and would not recognize as having any relationship to their own views.