In 1934, the National Rifle Association’s lobbyist testified in front of the House Ways and Means Committee about President Franklin Roosevelt’s National Firearms Act. “I have never believed in the general practice of carrying weapons,” the lobbyist said. “I think it should be sharply restricted and only under licenses.”
The NRA testified, under oath, in favor of the nation’s first federal gun control bill.
Eighty years later, the organization believes not only in “the general practice of carrying weapons” but also, as Ronald Reagan once wrote, that the Second Amendment “appears to leave little if any leeway for the gun control advocate.”
The NRA’s dramatic turnabout, and its decades-long campaign to change American hearts, minds and gun laws, is the subject of Michael Waldman’s compelling new book, “The Second Amendment: A Biography”. Waldman, the president of the Brennan Center for Law and Justice at the New York University School of Law, explains that the authors of the Second Amendment never intended to create an “unregulated individual right to a gun” and explores why, today, we think they did. Published three days before the rampage in Isla Vista, Calif., that killed six and wounded 13, the book shows how we got to this moment of routine gun violence — and offers a way out.
The Founders, it turns out, didn’t spend a lot of time discussing the Second Amendment. Skeptical of standing armies, their interest was in protecting “well-regulated” state militias; the phrase “keep and bear arms” was, at the time, a military reference. Scour James Madison’s notes from the Constitutional Convention, the states’ ratification debates and the markup of the Bill of Rights in the House of Representatives, as Waldman did, and, “with a few scattered exceptions,” you won’t find “a single word about an individual’s right to a gun for self-defense or recreation.”
Thus, for two centuries, the mainstream understanding of the Second Amendment was that it had to do not with an individual’s unregulated right to a gun but rather with the citizen-soldiers who would comprise a militia. There were plenty of guns in the United States, but those were subjected to restrictions that were widely accepted as both reasonable and essential.
Then, at the NRA’s 1977 national convention, gun advocates staged what came to be known as the “Revolt at Cincinnati,”replacing the group’s leadership with ideological extremists intent on building a political movement to fight even modest gun regulations and promote their revisionist view of the Second Amendment.
NRA-backed lawyers quietly and consistently churned out law review articles and pseudo-scholarship questioning 200 years of legal understanding. They shamelessly built up a self-referential body of work riddled with historical errors. Over time, these “scholars” toiling at the fringe were joined by a few leading academics, who lent some measure of respectability to this interpretation.
The gun lobby also engaged in a concerted public campaign, not to mention political manipulation. It was so successful that by the time the issue reached the Supreme Court in 2008, “the desired new doctrine fell like a ripe apple from the tree.” In its rotten 5 to 4 ruling in District of Columbia v. Heller, the majority ruled for the first time ever that the Second Amendment protects an individual right to keep a gun.
The crucial lesson is that the gun lobby’s triumph was not judge-driven; it was judge-ratified. For all of the legitimate frustration with the court’s interpretation of the Second Amendment, the real obstacle to sensible gun control is not judicial inflexibility but a lack of political courage. What we need is a sustained, multi-pronged effort to reframe the public debate and pressure our elected leaders into action.
The right’s long, assiduous and destructive march through the courts and the court of public opinion has, perversely, illuminated a path forward for their opponents. Constitutional change happens not by judicial fiat but through a broader dialogue with the other branches of government and, most important, with the people they represent.
That’s why we don’t necessarily need to revise the syntactic mess that is the Second Amendment, as former Supreme Court justice John Paul Stevens proposed. Cass Sunstein and others have pointed out that “the Court’s rulings continue to leave flexibility to state and federal governments.” Indeed, since the Heller decision, the courts have upheld many gun regulations.
Americans clearly support common-sense regulations; 90 percent support background checks for gun ownership. But because that support hasn’t translated into political action, 90 percent of Senate Republicans opposed a bill to expand background checks. The pleas of former congresswoman Gabrielle Giffords, shot by a madman at a congressional event in 2011, and the grieving parents of 20 schoolchildren slaughtered in Newtown, Conn., could not pry their votes, or their consciences, from the NRA’s cold hands. What we need is a movement of everyday Americans who believe in sane gun laws to stand up with the most vocal advocates at the forefront and replicate the passion and intensity of NRA activists.
The NRA demonstrated the power of a long, full jurisprudential campaign. It’s time to use their own weapon against them.