NRA Interpretation A Fraud
This afternoon while in my car, I heard an NPR report on guns and potential gun control laws. The story led with a report that military style assault weapons and large magazine (30 bullets per) have skyrocketed since last weekend, following the grade school massacre in CT. A gun shop dealer said the weapons and magazines have flown off the shelf, depleting his supply as people buy and stock up ahead of any legislation. One guy said he’d been saving for a new car but decided instead to buy an assault weapon now since he may not be able later on.
Granted that I was a small child in the ’50s, but I don’t remember this kind of fanaticism with military style firearms. But then, adults had lived through the horrors of WWII and lost friends or family in that carnage. Everyone back home had read the battlefield reports of journalists like Ernie Pyle. They were sickened by the killing and apparently approved of the gun restrictions put in place in 1934 as well as the Supreme Court’s decisions affirming gun restrictions based on their interpretation that “well regulated militias” was the more powerful phrase in the 2nd Amendment.
Richard Posner, judge for the United States Court of Appeals for the Seventh Circuit, compared Heller to Roe v. Wade inasmuch as it created a federal constitutional right that did not previously exist, and he asserted that the originalist method – to which Justice Antonin Scalia claims to adhere – would have yielded the opposite result of the majority opinion. Previous to the Heller decision, the SCOTUS stated two things regarding gun ownership: 1) there is no absolute Constitutional right to own guns outside of a “well regulated militia” and thus long upheld the National Firearms Act of 1934 which restricted what firearms could be legally purchased and used, based on pre-eminent belief that the militia (i.e. military) clause took precedence over the rest of the amendment; and 2) gun laws devolved to the States as per the 14th Amendment.
In US vs Miller (1939) the Court did rule that the rights of states to form militias, not the rights of individuals to own guns, were the focus of the Second Amendment, and that its protections must be understood within the context of militia service. But at the same time, the Court hinted for the first time at an individual right in acknowledging that when the amendment was drafted, militias usually included all free men, and required that these men provide their own weapons. In other words, the amendment was tied to a generally understood “common obligation . . . to possess arms . . . and to cooperate in the work of defense.” Moreover, the Court opened the door to an individual reading of the amendment even further by holding that a sawed-off shotgun was unprotected because it had no “reasonable relationship to the preservation or efficiency of a well regulated militia.” Taken together, these two parts of the ruling suggested that all “free men” could possess weapons of the type used for militia service. But in the short term the Court closed this door by insisting that only those guns usable in militia service, and held for the purpose of militia service were protected by the Second Amendment.
In a New Yorker article, Jeffrey Toobin wrote,
For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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 courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.
Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
No flaming liberal, Chief Justice Warren Burger (R), appointed by President Richard Nixon:
“In 1986, the N.R.A.’s interpretation of the Second Amendment achieved new legal authority with the passage of the Firearms Owners Protection Act, which repealed parts of the 1968 Gun Control Act by invoking “the rights of citizens … to keep and bear arms under the Second Amendment.” This interpretation was supported by a growing body of scholarship, much of it funded by the N.R.A. According to the constitutional-law scholar Carl Bogus, at least sixteen of the twenty-seven law-review articles published between 1970 and 1989 that were favorable to the N.R.A.’s interpretation of the Second Amendment were “written by lawyers who had been directly employed by or represented the N.R.A. or other gun-rights organizations.” In an interview, former Chief Justice Warren Burger said that the new interpretation of the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special-interest groups that I have ever seen in my lifetime.”