A fraud on the American public. Thats 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, Burgers 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 barseven in churches.
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Many are startled to learn that the U.S. Supreme Court didnt rule that the Second Amendment guarantees an individuals right to own a gun until 2008, when District of Columbia v. Heller struck down the capitals 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? Dont look for answers in dusty law books or the arcane reaches of theory.
So how does legal change happen in America? Weve seen some remarkably successful drives in recent yearsthink 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 Associations 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 powerat the time in the hands of the statesto 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 ownand bringa musket or other military weapon.
On June 8, 1789, James Madisonan ardent Federalist who had won election to Congress only after agreeing to push for changes to the newly ratified Constitutionproposed 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 dont 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 individuals right to a gun for self-defense or recreation in Madisons 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 weaponand 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.
Cue the National Rifle Association. We all know of the organizations 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 knownand perhaps more significantis 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.
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. He is the author of The Second Amendment: A Biography.
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