These Truths

by Jill Lepore

  Only after Carter became executive vice president of the NRA did it come out in the press that he had been convicted of murder in Laredo, Texas, in 1931, when he was seventeen years old. He’d come home from school to find his mother distressed about three boys she suspected of having been involved in stealing the family’s car. Carter, armed with a shotgun, found the boys and demanded that they come back to his house with him. Twelve-year-old Salvador Peña testified at Carter’s murder trial that after Ramón Casiano, fifteen, pulled out a knife and refused to go, Carter shot Casiano in the chest. Carter was convicted, though the verdict was later overturned on an appeal that rested on the judge’s instructions to the jury.81

  The lines between the parties hardened over guns and abortion, one meaning freedom and the other murder, though which meant which depended on the party. With Carter at its helm, the NRA in 1980 endorsed Reagan, the first time the organization had endorsed a presidential candidate in its century-long history. But, like Oswald’s assassination of Kennedy in 1963, Hinckley’s attempted assassination of Reagan in 1981 called attention to the ease with which Americans could buy and carry all kinds of guns and ammunition, well past the needs of hunters and sportsmen. Reagan, rushed into surgery, recovered quickly. His press secretary, James Brady, who had been shot in the head with a bullet designed to explode on impact, was permanently paralyzed. He and his wife later founded what would become the Brady Campaign to Prevent Gun Violence. Hinckley was found not guilty by reason of insanity. Despite considerable pressure, Reagan maintained his opposition to legislation that might have banned semiautomatic weapons or prevented their purchase by people with a history of mental illness.82 Reagan, shot by a handgun-wielding would-be assassin, had become so staunch an opponent of gun laws during his presidency that he advocated for the abolition of the Bureau of Alcohol, Tobacco and Firearms.

  Both reproductive rights and gun rights arguments rest on weak constitutional foundations; their very shakiness is what makes them so useful for partisan purposes: gains seem always in danger of being lost. But their foundations are weak for different reasons. And the conservative position on guns rose to the status of party doctrine partly because of the role it played in a conservative strategy to take over the judiciary—and to institutionalize a new way of reading the Constitution.

  Conservatives believed that liberals had controlled the federal government, the university, the press, and the courts since the 1930s, and that a conservative revolution would require either taking over these institutions or founding alternatives, or, more practically, accomplishing the first by beginning with the second. Nowhere did conservatives execute this strategy more carefully than with the courts. For a very long time, conservatives had trouble winning elections, a difficulty they often attributed to the role played by a liberal press. Liberals had won their greatest victories in the courts, especially in the rights revolution that began with Brown v. Board. Under these circumstances, the best way to win political victories appeared to be by changing the courts, and even constitutional interpretation itself. In the 1970s and 1980s, this campaign took form in the reinterpretation of the Second Amendment, the founding of the Federalist Society, and the development of a new mode of constitutional interpretation, known as originalism.83

  In 1982, Utah’s Orrin Hatch became chairman of the Senate Judiciary Committee’s Subcommittee on the Constitution and commissioned a history of the Second Amendment that resulted in a report, The Right to Keep and Bear Arms. Hatch’s committee concluded that the Second Amendment had been misinterpreted for nearly two centuries. The report concluded, “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.”84

  As late as 1986, the Second Amendment was still known as the “lost amendment.” But by 1991, a poll found that Americans were more familiar with the Second Amendment than with the First.85 Nevertheless, Hatch’s committee relied less on anything ever written by James Madison than on very recent scholarship funded by the NRA. Of twenty-seven law review articles published between 1970 and 1989 that were favorable to the NRA’s interpretation of the Second Amendment, at least nineteen were written by authors employed or represented by the NRA or other gun rights groups.86 The argument, that a new interpretation was not new at all but was instead a restoration of an older, long-lost interpretation, was pivotal to the work of self-described constitutional originalists, who sought to scrape away centuries of accreted interpretation to uncover the Constitution’s original meaning and the founders’ original intentions.

  Originalism was, in large part, an answer to the Supreme Court’s privacy-based decisions about contraception and abortion; if the left could find rights in penumbras and emanations, the right would find them in ink and parchment. Originalism flowered in law schools, especially through the Federalist Society, founded at the University of Chicago and Yale Law Schools in 1982; a year later, it had chapters at more than seventy law schools. (Nearly every federal judge appointed by Reagan’s three Republican successors, George H. W. Bush, George W. Bush, and Donald Trump, had either been a member of, or had been approved by, the Federalist Society.) Originalism also became the official policy of the Reagan Justice Department, headed by his attorney general, Edwin Meese. Meese’s Justice Department functioned as a de facto conservative think tank.87

  In 1985, Meese announced that “the Administration’s approach to constitutional interpretation” was to be “rooted in the text of the Constitution as illuminated by those who drafted, proposed, and ratified it.” He called this a “jurisprudence of original intention,” and contrasted it to the “misuse of history” by jurists, by which he meant liberals, who saw, in the Constitution’s “spirit,” things like “concepts of human dignity” with which they had turned the Constitution into a “charter for judicial activism.”88 Decisions like Griswold and Roe, which cited a so-called right to privacy, violated the precepts of originalism. But so, arguably, did Brown v. Board, and any number of decisions of the liberal Warren Court.

  Liberal jurists and scholars, including historians, answered Meese’s call with argument, derision, and disbelief. Justice William Brennan suggested that anyone who had ever studied in the archives or worked with historical records knew better than to believe that the records of the constitutional convention and the ratifying conventions offered so certain, exact, and singular a verdict as that which Meese expected to find there. Brennan called the idea that modern judges could discern the framers’ original intention “little more than arrogance cloaked as humility.” As to originalists’ particular readings, historians tended to find them absurd. In a searing critique of the new interpretation of the Second Amendment, the historian Garry Wills pointed out that the Second Amendment had everything to do with the common defense and nothing to do with hunting: “One does not bear arms against a rabbit.”89

  These arguments did little to narrow the broadening reach of originalism, which the New Right presented to the public as constitutional common sense through a sustained campaign of direct mail, talk radio, and cable television.90 Many Americans came to believe that originalism was itself original, a mode of constitutional interpretation that dated to the 1790s rather than to the 1980s. The gun debate descended into irrationality. Liberals often reacted hysterically to conservative gun rights arguments, and called for impossible-to-pass gun control measures, measures whose consequences the NRA delightedly exaggerated. Under these circumstances, some gun owners grew genuinely fearful that the federal government intended to seize their guns. Meanwhile, the NRA’s interpretation of the Second Amendment, like originalism itself, prevailed. In 1986, Congress repealed parts of the 1968 Gun Control Act in a Firearms Owners’ Protection Act that invoked “the rights of citizens . . . to keep and bear arms under the second amendment.”91 In 1991, Warren Burger called the
new interpretation of the Second Amendment “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.”92 It was, indeed, breathtaking. In a few short, violent years, guns became for conservatives what abortion had become for liberals: an emotionally charged matter of a constitutionally guaranteed, individual right with which party operatives could reliably get voters to the polls because, in fact, the constitutional guarantee was no guarantee at all.

  THE FIRST PRESIDENT to serve two full terms since Dwight Eisenhower, Reagan carried his domestic agenda on the back of his foreign policy successes. The OPEC oil crisis had made plain how desperately American dependence on foreign oil tied the United States to an unstable Middle East. In January 1979, Iranian revolutionaries led by a Muslim cleric named Ayatollah Ruhollah Khomeini had seized control of the government, ousting the shah, a tyrant who had been installed and supported by the United States. In November, rebels took sixty-six Americans hostage at the U.S. embassy and Foreign Ministry offices and demanded that the shah be returned to Iran from his exile in the United States. The crisis, including a tragically failed rescue attempt, was covered nightly on television news; ABC News launched a regular report called America Held Hostage. In December 1979, the Soviet Union invaded Afghanistan. By way of sanctions, Carter withdrew from the Senate an arms limitation agreement known as SALT II. In a final rebuke to Carter, the revolutionaries in Tehran released the American hostages as soon as Reagan took office, humiliating Carter, and handing to the incoming president an unearned but powerful political victory.93

  Every president since Eisenhower had been troubled by the world’s growing nuclear arsenal. By the 1980s, fear of a nuclear holocaust had merged with a rising concern about global environmental catastrophe. In the early 1960s, environmental scientists charged with studying the effects of nuclear weapons on the natural world began to notice that nuclear explosions depleted the ozone layer that protects the earth’s atmosphere, an effect that could be measured by comparing the ozone layer both before and after the United States and the USSR agreed to stop atmospheric tests of nuclear weapons in 1963. Meanwhile, the publication, in 1962, of Rachel Carson’s Silent Spring brought to the public a growing scientific concern about the effects of industrial pollution on water, soil, and air. In the wake of Silent Spring, the U.S. government formed a number of advisory and oversight organizations, including the Environmental Pollution Panel of the President’s Science Advisory Committee. The panel’s 1965 report, Restoring the Quality of Our Environment, included an appendix on “Atmospheric Carbon Dioxide,” laying out, with much alarm, the consequences of “the invisible pollutant” for the planet as a whole.94 In 1968, S. Fred Singer, an atmospheric physicist and environmental scientist who had worked on satellites and was now a deputy assistant secretary of the interior, organized a symposium on “Global Effects of Environmental Pollution.” Four papers were presented at a panel on “Effects of Atmospheric Pollution on Climate.”95 (What would come to be called climate-change science had its origins in the study of nuclear weapons fallout.)

  Nuclear weapons research was usually classified; other environmental research was not, and, fueled by that research, the environmental movement exploded. In 1970, Richard Nixon had established the Environmental Protection Agency and expanded the Clean Air Act; two years later, he signed the Clean Water Act. But, especially after the first photographs of the whole earth were taken from space—photographs that became the icon of the environmental movement—environmentalists, pointing out that atmospheric pollution does not honor national boundaries, began to argue for the need for global measures. The same case was made, beginning in the 1970s, by activists who called for nuclear disarmament and a weapons “freeze,” an end to all testing, manufacture, and deployment, a proposal that enjoyed the support of hundreds of scientists, congressional Democrats, and mainline Protestant churches, as well as that of sixty-nine Catholic bishops.96

  The call for a weapons freeze, as much on environmental grounds as on military, moral, or political grounds, soon reached Congress. In 1982, The New Yorker published a four-part series by Jonathan Schell called “The Fate of the Earth,” which led Tennessee congressman Al Gore to convene House hearings into “The Consequences of Nuclear War on the Global Environment.” But Reagan steered the nation in a different direction. In March 1983, he announced a Strategic Defense Initiative, SDI (quickly dubbed “Star Wars”), a plan to defend the United States from nuclear attack with a network of satellite-based missiles. Hoping to break out of the impasse of mutually assured destruction, Reagan proposed, with SDI, that the United States could engage in a “winnable” nuclear war.97

  But no nuclear war could be winnable if a nuclear explosion would catastrophically affect the atmosphere of the entire planet. Cornell astronomer Carl Sagan, the wildly popular host of a PBS science series, Cosmos, became the public face of a body of scientific work that suggested that even a very limited nuclear war could lead to the end of all life on the planet by bringing about a “nuclear winter.” Critics charged Sagan with hastening unproven work into publication and, worse, into the popular press. The physicist Edward Teller attacked Sagan in Nature: “Highly speculative theories of worldwide destruction—even the end of life on Earth—used as a call for a particular kind of political action serve neither the good reputation of science nor dispassionate political thought.” Reagan’s assistant secretary of defense, Richard Perle, said he wished Sagan would stop “playing political scientist.” A number of environmental scientists challenged the science behind nuclear winter, pointing out that its conclusions were mostly predictions based on models and that the science was, therefore, not certain.98

  With nuclear winter, conservatives extended their longstanding critique of the “liberal bias” of the media to science. For decades, conservatives, unlikely bedfellows with academic postmodernists, had been arguing against the idea of objectivity. “Fairness and honesty are much to be desired in newspapers of any sort,” Russell Kirk wrote in 1969, “but a Utopian ‘objectivity’ usually is a mask for concealed prejudices and partisanship.” Kirk and other conservatives had fought for the overturning of the FCC’s 1949 Fairness Doctrine. A 1959 amendment to the Fairness Doctrine had required broadcasters to provide “varying opinions on the paramount issues facing the American people,” because regarding “public controversies” the “public has a chance to hear both sides.” In the 1950s and 1960s, conservatism itself had been controversial, conservatives pointed out, leaving them at a disadvantage under a regime that misrepresented itself as valuing “fairness.” Instead of a public-interest-based rule for broadcasters, conservatives proposed a market-based rule: if people liked it, broadcasters could broadcast it. Ratings, not an “elite” of editors and experts, would become the arbiter of truth (with exactly the sort of malign consequences Walter Lippmann had warned about in the 1920s). Dismantling the Fairness Doctrine became a priority of the Reagan administration, a priority not unrelated to its campaign to discredit scientists like Sagan who opposed the Strategic Defense Initiative.99

  Scientists who aimed to discredit the theory of nuclear winter deployed against science the argument that conservatives like Kirk had used against journalism: that the claims to objectivity of scientists like Sagan were nothing but thinly disguised partisanship. Significantly, the most prominent critics of the science of nuclear winter would go on to become the most prominent critics of the science of climate change. “Sagan’s scenario may well be correct,” S. Fred Singer wrote in 1983, “but the range of uncertainty is so great that the prediction is not particularly useful.” Singer served as a longtime consultant to ARCO, Exxon, Shell Oil, and Sun Oil, and the Heartland Institute, founded in 1984, and was affiliated with the Heritage Foundation. (Many scientists, of course, serve on the boards of corporations and think tanks.)100 “Most scientists do not believe human greenhouse gas emissions are a proven threat to the environment or to human well-be
ing,” the Heartland Institute would later announce, “despite a barrage of propaganda insisting otherwise coming from the environmental movement and echoed by its sycophants in the mainstream media.” In 1984, the George C. Marshall Institute was founded by NASA physicist Robert Jastrow; Frederick Seitz, a former president of the National Academy of Sciences; and William Nierenberg, a past director of the Scripps Institution of Oceanography. They aimed to counter Sagan by arguing that nuclear winter was not science but politics. “The Nuclear Winter scenario could not serve the needs of Soviet leaders better if it had been designed for that purpose,” Jastrow wrote. In 1988, funded, in part, by ExxonMobil, the Marshall Institute turned its attention to challenging the science behind global warming.101

  The debate over nuclear winter, in short, established the themes and battle lines of the debate over climate change, which would rage well into the twenty-first century, long after the Cold War had ended. That end came about because, by 1984, the Soviet economy had virtually collapsed. That year, when Reagan ran for reelection, the American economy had finally improved, the stock market at the beginning of a bull market. Reagan’s campaign announced, “It’s morning again in America,” with a television ad that featured farmers and suburban fathers, brides in white, and American flags. (A sign of the worsening polarization, conservative Georgia congressman Newt Gingrich complained about the ad campaign: “He should have been running against liberals and radicals.”) Reagan won nearly 60 percent of the popular vote and every state but Minnesota, his opponent Walter Mondale’s home state. (Mondale won the District of Columbia.)102

  In 1985, the United States and the USSR together held a stockpile of more than sixty thousand warheads. Soviet leader Mikhail Gorbachev began pursuing a policy of glasnost, opening the society, and perestroika, restructuring the Soviet Union’s collapsed economy. Keen to limit defense spending, he agreed to a series of arms limitations talks beginning in Geneva. The talks stalled but, plainly, Gorbachev’s position had drastically weakened.