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.
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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.”
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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.
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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.)
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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.
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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.”
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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.
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. This article has been adapted from his book The Second Amendment: A Biography, published this week by Simon & Schuster. © 2014.