“Changing The Legal Paradigm”: NRA Money Helped Reshape Gun Laws
In 1977 at a Denver hotel, Don Kates paced a conference room lecturing a small group of young scholars about the Second Amendment and tossing out ideas for law review articles. Back then, it was a pretty weird activity in pursuit of a wacky notion: that the Constitution confers an individual right to possess a firearm.
“This idea for a very long time was just laughed at,” said Nelson Lund, the Patrick Henry professor of constitutional law and the Second Amendment at George Mason University, a chair endowed by the National Rifle Association. “A lot of people thought it was preposterous and just propaganda from gun nuts.”
More than 35 years later, no one is laughing. In 2008, the Supreme Court endorsed for the first time an individual’s right to own a gun in the case of District of Columbia v. Heller. The 5 to 4 decision rendered ineffective some of the District’s strict gun-control laws. And Justice Antonin Scalia’s majority opinion echoed the work of Kates and his ideological comrades, who had pressed the argument that the Second Amendment articulates an individual right to keep and bear arms.
As the Obama administration pushes for gun-control legislation, it will have to contend with the changed legal understanding of the Second Amendment that culminated in Heller. That transformation was brought about in large part by a small band of lawyers and scholars backed by the NRA.
For more than three decades, the NRA has sponsored legal seminars, funded legal research and encouraged law review articles that advocate an individual’s right to possess guns, according to the organization’s reports. The result has been a profound shift in legal thinking on the Second Amendment. And the issue of individual gun-possession rights, once almost entirely ignored, has moved into the center of constitutional debate and study.
For proponents of stricter gun control, the NRA’s encouragement of favorable legal scholarship has been a mark of its strategic, patient advocacy.
“I think this was one of the most successful attempts to change the law and to change a legal paradigm in history,” said Carl T. Bogus, a professor at Roger Williams University School of Law in Rhode Island and the editor of “The Second Amendment in Law and History,” a collection of essays that challenges the interpretation of the individual right. “They were thinking strategically. I don’t think the NRA funds scholarship out of academic interest. I think the NRA funds something because it has a political objective.”
The Second Amendment states: “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.” Before the Heller decision, the Supreme Court and lower courts had interpreted the language as “preserving the authority of the states to maintain militias,” according to a Congressional Research Service analysis.
“It was a settled question, and the overwhelming consensus, bordering on unanimity, was that the Second Amendment granted a collective right” enjoyed by the states, not individuals, Bogus said. Under this interpretation, the Constitution provides no right for an individual to possess a firearm.
Lund agreed that there was a consensus but said it was “based on ignorance.”
Throughout most of American history, there was little academic interest in the Second Amendment. From 1912 to 1959, only 11 law journal articles were published on the subject, all of them endorsing the prevailing opinion that it “affects citizens only in connection with citizen service in a government-organized and -regulated militia,” according to an analysis by Robert J. Spitzer, a professor of political science at the State University of New York at Cortland and the author of “The Politics of Gun Control.”
The first articles advocating an individual right appeared in the 1960s, and scholarship endorsing that view took off in the late 1970s. From 1980 to 1989, as NRA support began to be felt, 38 articles on the Second Amendment were published in academic journals, 21 of which advocated an individual right. In the following decade, 87 articles appeared, and a clear majority — 58 to 29 — took an individual-rights position, Spitzer’s analysis showed.
To Kates, the explanation for the burgeoning scholarship is obvious. “Gun control became a matter of enormous political controversy, and this focused attention on the Second Amendment,” he said in an interview.
Kates, a Yale Law graduate who describes himself as a liberal, said he began carrying a gun when he spent the summer of 1963 as a civil rights worker in eastern North Carolina.
“I never believed the nonsense that was then current that the Second Amendment had to do with states’ rights,” he said. Alarmed by calls for stricter gun control and outright bans, Kates started the seminars in the late 1970s and ran them for more than a decade with support from various groups, including the NRA and the Second Amendment Foundation, another gun rights organization.
Stephen P. Halbrook attended the Denver seminar in 1977 when he was an assistant professor of philosophy at Howard University and studying for a law degree at Georgetown. Three years later, he published his first article on the Second Amendment in the George Mason University Law Review. He went on to publish more than 20 law review articles and four books dealing with the Second Amendment, some with grants from the NRA, where he has served as an outside counsel.
Halbrook, who has a law office in Fairfax city, said the NRA started funding scholarly research. “I would think that’s important in the sense that scholars, unless you’re independently wealthy, you need to be paid for your time,” he said.
He and others noted that Bogus has received outside funding for symposia and publishing that excludes the individual-rights point of view. Bogus said he was transparent about his funding.
The NRA also began essay competitions for law students with prizes of up to $12,500, with the understanding that the winners would try to place their work in a law review.
Halbrook was one of a number of lawyers — including Kates; Dave Hardy, a legal consultant for the NRA; and David Caplan, a member of the NRA’s board of directors — who were at the forefront of this writing. They drew on their reading of colonial history, the founders’ statements and early American constitutional history to make their case for an individual right.
Hardy said most of this work was published in minor reviews, but the individual-rights argument got a big boost in 1989 when Sanford Levinson, a leading professor of constitutional law at the University of Texas at Austin, published “The Embarrassing Second Amendment” in the Yale Law Journal. He argued that the “legal consciousness of the elite bar” on the Second Amendment might be wrong. He also was sympathetic to the “insurrectionist theory” that citizens have a right to be armed so they can fight their government if it becomes tyrannical. Levinson singled out Kates’s work and cited Halbrook.
Other leading scholars followed, and advocates for the NRA’s position began to speak about a new “standard model.” In 1997, Justice Clarence Thomas acknowledged the growing mass of law review material when he wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment text suggests, a personal right.”
In 2003, the NRA marked the Second Amendment’s new stature as a subject of serious study when its foundation endowed Lund’s Patrick Henry chair at George Mason University with $1 million. The law school had established a reputation as a bastion of conservative legal thought.
“What they were looking for was a means of legitimating the fact that the Second Amendment had arrived as a legitimate subject of study in constitutional law,” said Daniel D. Polsby, the dean of the George Mason University School of Law.
For advocates of an individual’s right to bear arms, the Heller decision in 2008 was a vindication. In writing the majority opinion, Scalia said, “The second amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
He cited Kates and Halbrook.
By: Peter Finn, The Washington Post, March 13, 2013
“A Shrinking Minority”: Gun Lobby Defends Not The Constitution, But A Cynical Business Model
There’s a little known fact about guns in America, and it’s one that the firearms industry and its political allies don’t like to dwell on: The rate of gun ownership in America is declining.
This has been the case for decades. Rates peaked way back in the 1970s, the era of disco balls and bell bottoms. In 1977, 54 percent of American households reported owning guns. In 2010, the last time the General Social Survey data was compiled, the percentage had shrunk to 32.
The Violence Policy Center follows such data, as analyzed by the National Opinion Research Center. The center’s last report was “A Shrinking Minority: The Continuing Decline of Gun Ownership in America.”
The trend is expected to continue. It seems counter-intuitive, given all the recent headlines about people lining up at gun stores and given the stranglehold the gun lobby has on American politics. It raises all sorts of questions. Who owns guns, who doesn’t, and why? For the nation to handle its problems with gun violence effectively, we need to grasp the nitty-gritty realities of gun ownership.
First of all, whatever upticks have been observed in the purchases of guns and ammunition seems to reflect stockpiling by those who were already gun owners. Gun manufacturing increased dramatically between 2007 and 2011, from 3.7 million weapons to 6.1 million being produced. You have to wonder if owning guns, for those who still do, is a bit like buying cell phones. Once you’re hooked, only the newest killer version will do, prompting more frequent purchases.
Meanwhile, the declining overall trend in ownership rates is largely explained by the changing demographic composition of America.
Older white men, many of whom grew up with hunting as a part of their lifestyle, are in decline relative to other demographic groups. Younger people are more likely to play soccer than sit in a duck blind or deer stand.
More and more households are headed by single women, and they are far less likely to have guns than families with a father in the household. So the swelling ranks of single mothers, a topic of much hand-wringing in other regards, may actually help to reduce suicides and accidental gunshot injuries.
But what about all of those news stories of women flocking to shooting ranges, eagerly buying up pink-handled pistols and bedazzled accessories to hold extra clips? The rate of gun ownership among women peaked back in 1982 at about 14 percent. It fluctuates more for women than for other categories of people, but it was just under 10 percent in 2010.
What those news stories about female gun fascination reveal is not so much reality as a gun industry fairytale. It’s marketing. Gun manufacturers, the National Rifle Association, hunting organizations and shooting ranges want to drum up interest in guns that has been slipping away for decades.
It’s of a piece with the events known as “zombie shoots,” staged target practice encounters designed to lure in younger people who aren’t being taken hunting by their parents.
A declining proportion of the American public is getting involved in gun culture — that is, the gun industry’s customer base is not growing — and yet business is booming. This should lead us to an alarming conclusion. The marketing of more lethal forms of weaponry and ammunition is how the gun industry has decided to shore up profits. The fierce resistance to bans on assault weapons and large ammo clips, as well as to background checks and any other hurdle put in the way of those who want to arm themselves, is not about defending the Second Amendment. It is about defending a business model — a sick, cynical business model.
If this weren’t the case, the gun industry would be engaging with the general public in a more benign and constructive manner, committing itself to protecting us from the harm its products inflict. Instead, Americans have become fed up with its paranoia and its rank influence peddling. It has lost its credibility.
This much is clear. Gun ownership’s place in American culture is withering on its own. Industry and political efforts to resuscitate it need to be understood and, when appropriate, challenged in that context.
By: Mary Sanchez, The National Memo, February 26, 2013
“The Elephant Doesn’t Exist”: Guns And The Tyranny Of Extreme Rhetoric
Let’s say you’re making lunch in the kitchen while your kids play in the living room. When you come in with their mid-day meal, the place is a disaster. You look at them. They look at you. And before you know it they’re blurting out something like “the elephant did it!”
Now, I suppose there’s something to be said for that argument. It takes a quick wit. Or at least a keen sense of mammalogy. But it’s got one fundamental flaw: There is no elephant. And you know that’s true no matter how hard they argue otherwise.
These days, some on the right have seized on an invisible elephant all their own. They’ve named him Tyranny, and to hear them tell it, he’s big, he’s scary, and he’s tearing up the place. The problem, of course, is that he doesn’t exist—but that hasn’t stopped them from trying to convince the rest of us that he does.
Their latest effort came in the form of a Scott Rasmussen poll that found “65 percent See Gun Rights As Protection Against Tyranny.” If it’s true, that’s quite a finding. It means most of us believe that our government may descend into tyranny and that guns are the right way to protect ourselves from that eventuality.
Of course, there’s good reason to doubt Rasmussen: His polls reliably lean to the right. But for the sake of argument let’s take his findings on their face. How should we reconcile them with the great many other polls that suggest broadening support for gun control? The 55 percent in a CNN/Time poll who say gun controls should be tightened. The 58 percent in an ABC/Washington Post poll who back an assault weapons ban. The 63 percent in a CBS/New York Times poll who support banning high capacity magazines. The 78 percent in the same poll who favor creating a database to track all gun sales in the United States.
If you take the Rasmussen poll on the one hand and all the other polls on the other, it can only mean that there are many millions of us who somehow believe both that Americans need guns to protect ourselves from a government that may turn tyrannical and that we should make it harder for Americans to get guns. This is a, ahem, nuance that Rasmussen fails to address.
And then of course, there’s this: According to a recent Pew survey, only 33 percent of Americans have a gun in their home at all. If so many of us really think that tyranny looms and that guns are our protection but so few of us actually own them…well, we must be a pretty self-destructive lot.
As it happens, there was another poll in the field at around the same time as Rasmussen’s that was about the same issue, and conducted by a similarly conservative pollster—Wenzel Strategies (the pollster for Kentucky Sen. Rand Paul, among others). Wenzel asked respondents whether they believed the Second Amendment “exists to allow Americans to have small arms for hunting and self-protection” or “to give Americans the ability to defend themselves against government if it becomes tyrannical?” The results? Forty-seven percent said it’s just for hunting and self-protection. A whopping 8 percent said it’s just to defend against tyranny. And 40 percent said all of the above.
In other words, two polls that can be relied on to skew right, but on the question of tyranny and guns, Rasmussen’s big majority turns into Wenzel’s minority. And a less partisan researcher would presumably find that support is actually significantly lower than is suggested in both.
None of this, however, put the brakes on the Rasmussen poll among the conservative press and punditry. Breitbart, NewsMax, FreedomWorks, etc. all quickly linked to or posted stories like the one Katie Pavlich authored at TownHall.com reporting that “an overwhelming majority of Americans believe the Second Amendment and gun rights are necessary to protect against tyranny.”
Look, I don’t put any more stock in Wenzel than I do Rasmussen. In my view, they both poll in the service of ideology rather than in an effort to uncover actual attitudes and beliefs. (Wenzel used his findings, for example, to suggest that we are more at risk of tyrannical takeover precisely because we don’t think it’s going to happen. Sigh.) And I have no doubt that there are those who actually believe that tyranny is in the offing. But the fact is, most of us, regardless of our political or ideological stripe, don’t believe that. We know the difference between our government and that of other countries in world, between Saddam Hussein and John Boehner. The former subjected Iraqis to years of death squads and oppression. That’s a tyrant. The latter’s subjected Americans to years of weepy incompetence. That’s irritating.
That doesn’t make the tyrannists’ rhetoric any less insidious, however. In asking us to conceive of an America that is profoundly different from the one in which we actually live they seek to conform our public policy to threats that exist only in some kind of make-believe place. When they are successful, the mainstreaming of lunatic ideas (like: We live under the threat of tyranny) makes possible ever more extreme policies (like: We all must have the right to semi-automatic weapons). And when we let that happen, nightmares of a very different kind than those conjured up by the ideologues really do come true.
When you take the invisible elephant out of your living room, you can clearly see what caused the mess (your kids.) And when you take the false threat of tyranny out of the equation, the case against assault weapons is pretty clear too (we don’t need them).
The elephant doesn’t exist. And it’s time for us to say so.
By: Anson Kaye, U. S. News and World Report, January 24, 2013
“The Greatest Fraud”: How The NRA Hijacked The Republican Party
There are few better ways of grasping how far the Republicans have abandoned the middle ground, where they used to win elections, than the way their leaders have become agents of the gun industry. Conservatives used to consider themselves law-abiding citizens who put great store by the permanence of institutions, by the rule of law, and by the traditional caution and common sense of the sensible majority. Such devotion to stability, continuation, and moderation explains why so many conservatives were alarmed when the social revolution of the Sixties erupted. Suddenly, it seemed, everything was on the move. Children no longer believed in the wisdom of their elders, nor obeyed the unwritten rules that had guided every previous generation. The days of everyone knowing their place and remaining in it were overthrown and it appeared that anarchy had broken out in America.
Nowhere was this more evident to traditional conservatives than in the way African-Americans responded to the civil rights legislation enacted by Lyndon Johnson. Instead of being grateful for the overdue democratic changes wrested from reluctant Southern lawmakers, a significant number of African-Americans demanded more profound change. There were riots in Los Angeles, Detroit, and other major cities which were met by calls from conservatives for tighter gun controls. The Black Panthers, dressed as soldiers and carrying guns, as was their right under the Second Amendment, demanded that African-Americans be allowed to live in a separate self-governing state. In May 1967, 30 Panthers took loaded rifles, shotguns, and pistols into the California State Capitol to protest against new gun control laws. The California governor, Ronald Reagan, declared: “There’s no reason why on the street today a citizen should be carrying loaded weapons.”
After John F. Kennedy, Robert Kennedy, and Martin Luther King were assassinated, Johnson joined with conservatives to pass the federal Gun Control Act that stipulated a minimum age for gun buyers, restricted traffic across state lines to federally registered gun dealers, limited the sale of certain destructive bullets, required guns to carry serial numbers, and added drug addicts and the insane to those, like felons, who were already forbidden to own guns. When it transpired that Lee Harvey Oswald had bought the rifle that killed the president mail order from the pages of the National Rifle Association magazine, the NRA Executive Vice-President Franklin Orth backed an end to mail-order sales. “We do not think that any sane American, who calls himself an American, can object to placing into this bill the instrument which killed the president of the United States,” he said.
In the mid-Seventies, the NRA switched from being a moderate organization backing moderate gun controls into a radical body that promulgated an absolutist interpretation of the Second Amendment with a new motto: “The right of the people to keep and bear arms shall not be infringed.” It was this originalist interpretation of the Second Amendment that led Warren Burger, the conservative, constructionist chief justice appointed by Richard Nixon to declare on PBS in 1991 that the NRA had perpetrated “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. … [the NRA has] misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see. And I am a gun man.”
Today the Republican Party remains in hock to the NRA leadership and through them to their paymasters in the gun-making industry. The NRA runs an official list, like the old Communist Party, of preferred candidates and grades them according to their adherence to the strict constructionist interpretation of the Second Amendment. If a candidate fails to offer total support for absolutist gun rights, the NRA funds a campaign in the next party primary to unseat them. Polls suggest, however, that the NRA leadership no longer represents the wishes of its members towards moderate gun controls, and since the Sandy Hook massacre of schoolchildren, the extremism of NRA leaders like Wayne LaPierre, whose tin-eared response to the shootings so jarred voters in all parties, suggests the existence at the top of the organization of a self-serving, superannuated elite that no longer commands the confidence of its rank and file.
Gun rights activism is just one strand of Republican extremism out of kilter with moderate Republicans and middle ground independent voters who decide elections. In the mid-Seventies, while Second Amendment fundamentalists were starting to blacklist GOP candidates who would not support their hard line, the party was also transformed by the rise of radical Christian fundamentalists, whose literal reading of scripture led them to adopt social conservative positions on abortion, race, and homosexuality. These changes coincided with the arrival of neo-conservatism, a body of theory that saw America as not just the world’s policeman but the harbinger of democracy everywhere with a particular brief to counter radical Islam. Until then it could be argued, citing two world wars, Korea and Vietnam, that the Democrats were the war party and the Republicans the party that put America first. Since the neo-cons that notion has been turned on its head by the persecution of two wars, in Iraq and Afghanistan, both of which were to be abandoned after an inconclusive outcome.
Around the same time, economic notions that had ensured unprecedented prosperity under Eisenhower and Nixon gave way in the GOP to fiscal conservatism – absolutist ideas about the money supply and reducing public spending that George H. W. Bush derided as “voodoo economics.” Since 2009, libertarian insurgents that in the GOP primaries last year accounted for about 10 per cent of party activists have extrapolated careful budgeting into demands for minimal government. Since Tea Party protestors entered the GOP in numbers in 2009, they have instituted further restrictive demands upon Republican candidates, diminishing the discretion of elected officials by directing them to obey pledges not to raise taxes.
Once a moderate party protecting old fashioned values, since the mid-Seventies the Republicans have adopted extreme positions that are alien to the party of Lincoln, Eisenhower, Nixon and Bush Sr. A party proud of its pragmatism is being driven by dogmatic theories imported by unbending ideologues such as Ayn Rand, Ludwig von Mises, and Friedrich Hayek. On guns, abortion, immigration, women’s health, homosexual rights, home schooling, and a host of other issues, the once inclusive Republican Party has lost its one-nation tradition and supplanted it with a hotchpotch of sectarian interests policed by a coalition of narrow, theory-driven mavericks, curmudgeons, libertarians, radicals, and eccentrics.
The GOP is deeply divided, a split that conservative commentators like Charles Krauthammer attribute to fast footwork by President Obama. Other conservatives, such as Bill O’Reilly, think the party will find it hard to put itself back together by the time of the next presidential election, never mind the mid-terms in two years. Citing the way Obama and Bill Clinton arrived from nowhere to save the Democrats from an unpopular ideological stance, Krauthammer believes the Republicans will be saved by an as-yet unknown savior. Four years is, indeed, a long time in politics, but it may take far longer than that to purge the party of its popular perception as a redoubt for gun-toting, women-loathing, gay-hating, xenophobic, war-mongering anarchists.
By: Nicholas Wapshot, Reuters, January 18, 2013
“Degrees Of Principle”: In A Sane World, Gun Control Proposals Are Hardly Draconian
Unlike many who recently have joined the debate about gun rights, I have a long history with guns, which I proffer only in the interest of preempting the “elitist, liberal, swine, prostitute, blahblahblah” charge.
I grew up in a home with guns, lots of them, and was taught early how to shoot, care for firearms and treat them respectfully. My father’s rules were simple: Never point a gun at someone unless you intend to shoot them; if you intend to shoot, aim to kill.
Dear ol’ Dad was a law-and-order guy — a lawyer, judge and World War II veteran who did everything by the book — except when it came to guns. Most memorable among his many lectures was a confidence: “There is only one law in the land that I would break,” he told me. “I will never register my guns.”
I suppose if he hadn’t also opposed bumper stickers, he might have attached the one about “cold dead fingers” to his fender. He also might have liked a slogan I read recently: “With guns, we are citizens; without them, we are subjects.”
By today’s standards my father would be considered a gun nut, but his sentiments were understandable in the context of his time. Like others of his generation, he had witnessed Germany’s disarming of its citizenry and the consequences thereafter. Thus, the slippery slope of which gun-rights advocates speak is not without precedent or reason.
But the history of gun-control laws is not without contradictions and ironies that belie the current insistence that guns-without-controls is the ipso facto of originalist America. In fact, the federal government of our Founders made gun ownership mandatory for white males, while denying others — slaves and later freedmen — the privilege.
Today, the most vociferous defenders of gun rights tend to be white, rural males who oppose any regulation. But theirs was once the ardently held position of radical African Americans. Notably, in the 1960s, Black Panthers Bobby Seale and Huey Newton toted guns wherever they went to make a point: Blacks needed guns to protect themselves in a country that wasn’t quite ready to enforce civil rights.
In one remarkable incident in May 1967, as recounted in The Atlantic by UCLA law professor Adam Winkler, 24 men and six women, all armed, ascended the California capitol steps, read a proclamation about gun rights and proceeded inside — with their guns, which was legal at the time.
Needless to say, conservatives, including then-Gov. Ronald Reagan, were suddenly very, very interested in gun control. That afternoon, Reagan told reporters there was “no reason why on the street today a citizen should be carrying loaded weapons.”
The degree of one’s allegiance to principle apparently depends mainly on who is holding the gun.
While black activists were adamant about their right to protect themselves, the National Rifle Association wasn’t much interested in the constitutional question until the mid-’70s, when an organizational split produced a new leader, Harlon Carter, who was dedicated to advocacy and determined to dig a deep line in the Beltway sand.
The Second Amendment debate about what the Founders intended was clarified in 2008 when theSupreme Court in District of Columbia v. Heller determined that the right of the people to keep and bear arms included individuals, not just a “well-regulated militia.” However, as Winkler pointed out, Justice Antonin Scalia’s opinion left wiggle room for exceptions, including prohibitions related to felons and the mentally ill. Scalia was not casting doubt, the justice wrote, on “laws imposing conditions and qualifications on the commercial sale of arms.”
This still leaves open the loophole of private sales that do not require background checks, which President Obama wants to close. We will hear more about this in coming weeks, but the call meanwhile to ban assault weapons or limit magazines in the wake of the horrific mass murder of children and others at Sandy Hook Elementary in Connecticut is hardly draconian. It won’t solve the problem of mentally disturbed people exacting weird justice from innocents, but it might limit the toll. Having to stop one’s rampage to reload rather breaks the spell, or so one would imagine.
One also imagines that the old Reagan would say there’s no reason a citizen needs an assault weapon or a magazine that can destroy dozens of people in minutes. He would certainly be correct and, in a sane world, possibly even electable.
By: Kathleen Parker, Opinion Writer, The Washington Post, January 11, 2013
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