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Expert Brief

How the NRA Rewrote the Second Amendment

The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here’s how it happened.

Published: May 20, 2014

Cross­pos­ted on Politico Magazine

“A fraud on the Amer­ican public.” That’s 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, Burger’s 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 bars—even in churches.

Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amend­ment guar­an­tees an indi­vidu­al’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capit­al’s 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? Don’t look for answers in dusty law books or the arcane reaches of theory.

So how does legal change happen in Amer­ica? We’ve seen some remark­ably success­ful drives in recent years—­think 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 Asso­ci­ation’s 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 power­—at the time in the hands of the states—to 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 own—and bring—a musket or other milit­ary weapon.

On June 8, 1789, James Madis­on—an ardent Feder­al­ist who had won elec­tion to Congress only after agree­ing to push for changes to the newly rati­fied Consti­tu­tion—­pro­posed 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 don’t 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 indi­vidu­al’s right to a gun for self-defense or recre­ation in Madis­on’s 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 weapon—and 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 organ­iz­a­tion’s 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 known—and perhaps more signi­fic­ant—is 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.

Cut to 1977. Gun-group veter­ans still call the NRA’s annual meet­ing that year the “Revolt at Cincin­nati.” After the organ­iz­a­tion’s lead­er­ship had decided to move its headquar­ters to Color­ado, signal­ing a retreat from polit­ics, more than a thou­sand angry rebels showed up at the annual conven­tion. By four in the morn­ing, the dissent­ers had voted out the organ­iz­a­tion’s lead­er­ship. Activ­ists from the Second Amend­ment Found­a­tion and the Citizens Commit­tee for the Right to Keep and Bear Arms pushed their way into power.

The NRA’s new lead­er­ship was dramatic, dogmatic and overtly ideo­lo­gical. For the first time, the organ­iz­a­tion form­ally embraced the idea that the sacred Second Amend­ment was at the heart of its concerns.

The gun lobby’s lurch right­ward was part of a larger conser­vat­ive back­lash that took place across the Repub­lican coali­tion in the 1970s. One after another, once-sleepy tradi­tional organ­iz­a­tions galvan­ized as conser­vat­ive activ­ists wres­ted control.

Conser­vat­ives tossed around the language of insur­rec­tion with the ardor of a Berke­ley Weather­man. The “Revolt at Cincin­nati” was followed by the “tax revolt,” which began in Cali­for­nia in 1979, and the “sagebrush rebel­lion” against Interior Depart­ment land policies. All these groups shared a deep distrust of the federal govern­ment and spoke in the language of liber­tari­an­ism. They formed a potent new partisan coali­tion.

Politi­cians adjus­ted in turn. The 1972 Repub­lican plat­form had suppor­ted gun control, with a focus on restrict­ing the sale of “cheap hand­guns.” Just three years later in 1975, prepar­ing to chal­lenge Gerald R. Ford for the Repub­lican nomin­a­tion, Reagan wrote in Guns & Ammo magazine, “The Second Amend­ment is clear, or ought to be. It appears to leave little if any leeway for the gun control advoc­ate.” By 1980 the GOP plat­form proclaimed, “We believe the right of citizens to keep and bear arms must be preserved. Accord­ingly, we oppose federal regis­tra­tion of fire­arms.” That year the NRA gave Reagan its first-ever pres­id­en­tial endorse­ment.

Today at the NRA’s headquar­ters in Fair­fax, Virginia, over­sized letters on the facade no longer refer to “marks­man­ship” and “safety.” Instead, the Second Amend­ment is emblazoned on a wall of the build­ing’s lobby. Visit­ors might not notice that the text is incom­plete. It reads:

“.. the right of the people to keep and bear arms, shall not be infringed.”

The first half—the part about the well regu­lated mili­tia—has been edited out.

* * *

From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amend­ment concluded it did not guar­an­tee an indi­vidual right to a gun. The first to argue other­wise, writ­ten by a William and Mary law student named Stuart R. Hays, appeared in 1960. He began by citing an article in the NRA’s Amer­ican Rifle­man magazine and argued that the amend­ment enforced a “right of revolu­tion,” of which the South­ern states availed them­selves during what the author called “The War Between the States.”

At first, only a few articles echoed that view. Then, start­ing in the late 1970s, a squad of attor­neys and profess­ors began to churn out law review submis­sions, dozens of them, at a prodi­gious rate. Fund­s—much of them from the NRA—­flowed freely. An essay contest, grants to write book reviews, the creation of “Academ­ics for the Second Amend­ment,” all followed. In 2003, the NRA Found­a­tion provided $1 million to endow the Patrick Henry profess­or­ship in consti­tu­tional law and the Second Amend­ment at George Mason Univer­sity Law School.

This fusil­lade of schol­ar­ship and pseudo-schol­ar­ship insisted that the tradi­tional view—shared by courts and histor­i­ans—was wrong. There had been a colossal consti­tu­tional mistake. Two centur­ies of legal consensus, they argued, must be over­turned.

If one delves into the claims these schol­ars were making, a start­ling number of them crumble. Histor­ian Jack Rakove, whose Pulitzer-Prize winning book Original Mean­ings explored the founders’ myriad views, notes, “It is one thing to ransack the sources for a set of useful quota­tions, another to weigh their inter­pret­ive author­ity. … There are, in fact, only a hand­ful of sources from the period of consti­tu­tional form­a­tion that bear directly on the ques­tions that lie at the heart of our current contro­ver­sies about the regu­la­tion of privately owned fire­arms. If Amer­ic­ans has indeed been concerned with the impact of the Consti­tu­tion on this right … the proponents of indi­vidual right theory would not have to recycle the same hand­ful of refer­ences … or to rip prom­ising snip­pets of quota­tions from the texts and speeches in which they are embed­ded.”

And there were plenty of prom­ising snip­pets to rip. There was the ringing declar­a­tion from Patrick Henry: “The great object is, that every man be armed.” The eloquent patri­ot’s declar­a­tion provided the title for the ur-text for the gun rights move­ment, Stephen Halbrook’s 1984 book, That Every Man Be Armed. It is cited rever­en­tially in law review articles and schol­arly texts. The Second Amend­ment profess­or­ship at George Mason Univer­sity is named after Henry. A $10,000 gift to the NRA makes you a “Patrick Henry Member.”

The quote has been plucked from Henry’s speech at Virgini­a’s rati­fy­ing conven­tion for the Consti­tu­tion in 1788. But if you look at the full text, he was complain­ing about the cost of both the federal govern­ment and the state arming the mili­tia. (“The great object is, that every man be armed,” he said. “At a very great cost, we shall be doubly armed.”) In other words: Sure, let every man be armed, but only once! Far from a ringing state­ment of indi­vidual gun-toting free­dom, it was an early Amer­ican example of a local politi­cian complain­ing about govern­ment waste.

Thomas Jeffer­son offers numer­ous oppor­tun­it­ies for pro-gun advoc­ates. “Histor­ical research demon­strates the Founders out-‘NRAing’ even the NRA,” proclaimed one prolific scholar. “‘One loves to possess arms’ wrote Thomas Jeffer­son, the premier intel­lec­tual of his day, to George Wash­ing­ton on June 19, 1796.” What a find! Oops: Jeffer­son was not talk­ing about guns. He was writ­ing to Wash­ing­ton asking for copies of some old letters, to have handy so he could issue a rebut­tal in case he got attacked for a decision he made as secret­ary of state. The NRA website still includes the quote. You can go online to buy a T-shirt emblazoned with Jeffer­son’s mangled words.

Some of the assump­tions were simply funny. In his book on judi­cial philo­sophy, Supreme Court Justice Antonin Scalia, for example, lauded Professor Joyce Lee Malcolm’s “excel­lent study” of English gun rights, noting sarcastic­ally, “she is not a member of the Michigan Mili­tia, but an English­wo­man.” But a histor­ian fact-checked the justice: “Malcolm’s name may sound Brit­ish, and Bent­ley College, where Malcolm teaches history, may sound like a college at Oxford, but in fact Malcolm was born and raised in Utica, New York, and Bent­ley is a busi­ness college in Massachu­setts.”

Still, all this focus on histor­ical research began to have an impact. And even­tu­ally these law profess­ors, many toil­ing at the fringes of respect­ab­il­ity, were joined by a few of academi­a’s lead­ing lights. Sanford Levin­son is a prom­in­ent liberal consti­tu­tional law professor at the Univer­sity of Texas at Austin. In 1989, he published an article tweak­ing other progress­ives for ignor­ing “The Embar­rass­ing Second Amend­ment.” “For too long,” he wrote, “most members of the legal academy have treated the Second Amend­ment as the equi­val­ent of an embar­rass­ing relat­ive, whose mention brings a quick change of subject to other, more respect­able, family members. That will no longer do.” Levin­son was soon joined by Akhil Reed Amar of Yale and Harvard’s Laurence Tribe. These prom­in­ent progress­ives had differ­ing opin­ions on the amend­ment and its scope. But what mattered was their polit­ical proven­ance—they were liber­als! (One is reminded of Robert Frost’s defin­i­tion of a liberal: someone so open-minded he will not take his own side in an argu­ment.)

* * *

As the revi­sion­ist perspect­ive took hold, govern­ment agen­cies also began to shift. In 1981, Repub­lic­ans took control of the U.S. Senate for the first time in 24 years. Utah Sen. Orrin Hatch became chair of a key Judi­ciary Commit­tee panel, where he commis­sioned a study on “The Right to Keep and Bear Arms.” In a breath­less tone it announced, “What the Subcom­mit­tee on the Consti­tu­tion uncovered was clear—and long lost—­proof that the second amend­ment to our Consti­tu­tion was inten­ded as an indi­vidual right of the Amer­ican citizen to keep and carry arms in a peace­ful manner, for protec­tion of himself, his family, and his freedoms.” The crypto­lo­gist discov­er­ing invis­ible writ­ing on the back of the Declar­a­tion of Inde­pend­ence in the Disney movie National Treas­ure could not have said it better.

Despite Hatch’s dramatic “discov­ery,” a consti­tu­tional right to gun owner­ship was still a stretch, even for the conser­vat­ives in Reagan’s Justice Depart­ment, who were reluct­ant to undo the work not only of judges, but also of demo­crat­ic­ally elec­ted legis­lat­ors. When Ed Meese, Reagan’s attor­ney general, commis­sioned a compre­hens­ive strategy for juris­pru­den­tial change in 15 areas ranging from the “exclu­sion­ary rule” under the Fourth Amend­ment to public initi­at­ives to private reli­gious educa­tion, it did not include a plan for the Second Amend­ment.

But in time, the NRA’s power to elect pres­id­ents began to shift exec­ut­ive branch policies, too. In 2000, gun activ­ists strongly backed Governor George W. Bush of Texas. After the elec­tion, Bush’s new attor­ney general, John Ashcroft, reversed the Justice Depart­ment’s stance. The NRA’s head lobby­ist read the new policy aloud at its 2001 conven­tion in Kansas City: “The text and original intent of the Second Amend­ment clearly protect the right of indi­vidu­als to keep and bear fire­arms.”

In the mean­time, the “indi­vidual right” argu­ment was start­ing to win in another forum: public opin­ion. In 1959, accord­ing to a Gallup poll, 60 percent of Amer­ic­ans favored banning hand­guns; that dropped to 41 percent by 1975 and 24 percent in 2012. By early 2008, accord­ing to Gallup, 73 percent of Amer­ic­ans believed the Second Amend­ment “guar­an­teed the rights of Amer­ic­ans to own guns” outside the mili­tia.

Over the past decade, the idea of a Second Amend­ment right has become synonym­ous with conser­vat­ism, even with support for the Repub­lican Party. In 1993, for example, the New York Times mentioned “gun control” 388 times, and the Second Amend­ment only 16. By 2008, over­all mentions of the issue dropped to 160 but the Second Amend­ment was mentioned 59 times.

* * *

In the end, it was neither the NRA nor the Bush admin­is­tra­tion that pressed the Supreme Court to reverse its centur­ies-old approach, but a small group of liber­tarian lawyers who believed other gun advoc­ates were too timid. They targeted a gun law passed by the local govern­ment in Wash­ing­ton, D.C., in 1976—per­haps the nation’s strict­est—that barred indi­vidu­als from keep­ing a loaded hand­gun at home without a trig­ger lock. They recruited an appeal­ing plaintiff: Dick Heller, a secur­ity guard at the Thur­good Marshall Federal Judi­ciary Build­ing, who wanted to bring his work revolver home to his high-crime neigh­bor­hood. The NRA worried it lacked the five votes neces­sary to win. The organ­iz­a­tion tried to sideswipe the effort, filing what Heller’s lawyers called “sham litig­a­tion” to give courts an excuse to avoid a consti­tu­tional ruling. But the momentum that the NRA itself had set in motion proved unstop­pable, and the big case made its way to the Supreme Court.

The argu­ment presen­ted in District of Columbia v. Heller showed just how far the gun rights crusade had come. Nearly all the ques­tions focused on arcane matters of colo­nial history. Few dealt with prevent­ing gun viol­ence, social science find­ings or the effect­ive­ness of today’s gun laws—the kinds of things judges might once have considered. On June 26, 2008, the Supreme Court ruled 5–4 that the Second Amend­ment guar­an­tees a right to own a weapon “in common use” to protect “hearth and home.” Scalia wrote the opin­ion, which he later called the “vindic­a­tion” of his judi­cial philo­sophy.

After the decision was announced, Heller stood on the steps of the court for a triumphant press confer­ence. Held aloft behind him was a poster bear­ing that quote from Patrick Henry, unearthed by the schol­ars who had proven so import­ant for the success­ful drive: “Let every man be armed.”

* * *

In Janu­ary 2014, liberal activ­ists jammed a confer­ence room at the Open Soci­ety Found­a­tions in New York City. They were there to hear former NRA pres­id­ent David Keene. “Of course, we really just invited David to coax him into giving us the secret of the NRA’s success,” joked the moder­ator.

Improb­ably, the gun move­ment’s triumph has become a template for progress­ives, many of whom are appalled by the substance of the victor­ies. Keene was joined by Evan Wolf­son, the organ­izer of Free­dom to Marry, whose move­ment has begun to win start­ling victor­ies for marriage equal­ity in courts. Once, conser­vat­ives fumed about activ­ist courts enfor­cing newly artic­u­lated right­s—a woman’s right to repro­duct­ive choice, equal protec­tion for all races. But just as they learned from the left’s legal victor­ies in those fields, today progress­ives are trying to re-learn from their conser­vat­ive coun­ter­parts.

One lesson: patience. The fight for gun rights took decades. Another lesson, perhaps obvi­ous: There is no substi­tute for polit­ical organ­iz­ing. A century ago the satir­ical char­ac­ter Mr. Dooley famously said in an Irish brogue, “No matter whether th’ Consti­tu­tion follows th’ flag or not, the Supreme Coort follows th’ ilic­tion returns.” Before social move­ments can win at the court they must win at the ballot box. The five justices in the Heller major­ity were all nomin­ated by pres­id­ents who them­selves were NRA members.

But even more import­ant is this: Activ­ists turned their fight over gun control into a consti­tu­tional crusade. Modern polit­ical consult­ants may tell clients that consti­tu­tional law and the role of the Supreme Court is too arcane for discus­sion at the prover­bial “kitchen table.” Nonsense. Amer­ic­ans always have been engaged, and at times enraged, by consti­tu­tional doctrine. Deep notions of free­dom and rights have retained totemic power. Today’s “Second Amend­ment support­ers” recog­nize that claim­ing the consti­tu­tional high ground goes far toward winning an argu­ment.

Liberal lawyers might once have rushed to court at the slight­est provoca­tion. Now, they are start­ing to real­ize that a long, full juris­pru­den­tial campaign is needed to achieve major goals. Since 2011, activ­ists have waged a wide­spread public educa­tion campaign to persuade citizens that new state laws were ille­git­im­ate attempts to curb voting rights, all as a precursor to winning court victor­ies. Now many demo­cracy activ­ists, morti­fied by recent Supreme Court rulings in campaign finance cases (all with Heller’s same 5–4 split), have begun to map out a path to over­turn Citizens United and other recent cases. Years of schol­ar­ship, theor­iz­ing, amicus briefs, test cases and minor­ity dissents await before a new major­ity can refash­ion recent consti­tu­tional doctrine.

Mold­ing public opin­ion is the most import­ant factor. Abra­ham Lincoln, debat­ing slavery, said in 1858, “Public senti­ment is everything. With public senti­ment, noth­ing can fail; without it, noth­ing can succeed. Consequently he who molds public senti­ment goes deeper than he who enacts stat­utes or pronounces decisions. He makes stat­utes and decisions possible or impossible to be executed.” The triumph of gun rights reminds us today: If you want to win in the court of law, first win in the court of public opin­ion. 

This article has been adap­ted from The Second Amend­ment: A Biography by Michael Wald­man, published week by Simon & Schuster. © 2014.

(Image: Foto­lia)