The Second Amendment

by Michael Waldman

  The Supreme Court upheld the 1934 law in United States v. Miller, by far its most direct examination of the Second Amendment in its first two centuries.

  The case boasted a picturesque background. Jack Miller robbed banks. He was part of a notorious crew called the O’Malley Gang that raised hell throughout the Ozarks. Miller had become an informant, sending gang members to Alcatraz and other federal prisons. The next year, police picked him up driving with a sawed-off shotgun, apparently having crossed state lines, readying his next robbery. Federal agents hauled Miller before a judge, who ruled the new gun law violated the Second Amendment. He released the defendant, who promptly disappeared. Newspapers speculated that Miller was set up to be a test case, designed to elicit a favorable court ruling. (One clue: far from a foe of gun control, the judge who struck down the law on Second Amendment grounds was actually a former New Deal congressman who had ardently backed such measures.) The appeal went straight to the Supreme Court. Miller’s lawyer telegrammed the justices’ clerk: “UNABLE TO OBTAIN ANY MONEY FROM CLIENTS TO BE PRESENT AND ARGUE CASE.” Only the government spoke. Miller resurfaced a month after the justices heard his case, sticking up the Route 66 Club in Miami, Oklahoma. He was found murdered the next day.

  In upholding Roosevelt’s gun law, the Court made its most definitive statement yet. Justice James Clark McReynolds, no friend of the New Deal, wrote for a unanimous Court. Without evidence that a sawed-off shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense,” McReynolds wrote. He added: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

  It was an odd opinion; McReynolds wrote poorly. Still, in broad outline, the Miller decision encompassed the history of the amendment: it traced the history of the militia, and the centrality of the debate over the perils of a standing army to the purpose of the Second Amendment. Its analysis of what kind of weapon could not banned did not, notably, say that the weapon needed to be useful to a militia in 1789—rather, the test was in 1939. The Court left little doubt where it stood on the purpose and scope of the Amendment, despite later revisionist claims to the contrary.

  There it stood. Gun control laws waxed and waned. Urban violence began to climb in the 1960s and 1970s, as a huge influx of rural residents arrived north at the very moment industrial jobs began to vanish. Focus on guns would peak after a publicized act of violence, often political. When Martin Luther King Jr. and Robert F. Kennedy were assassinated in the spring of 1968, President Lyndon Johnson pressed Congress to enact the Gun Control Act of 1968. It established a federal licensing system for gun dealers and banned the importation of military-style weapons. It also prohibited certain classes of people deemed dangerous—felons; fugitives; people dishonorably discharged from the military—from purchasing or possessing guns. The NRA stayed mostly silent. The assassination attempt on Ronald Reagan led over a decade later to a new gun law. The Brady Bill—named after his wounded press secretary, James S. Brady, who campaigned for passage—required a background check and waiting period before buying a gun. The next year President Bill Clinton won passage of a ban on assault weapons as part of a larger crime bill. Most focus, though, fell on other criminal justice measures that sought to grapple with a surge of crime and drugs. Harsh drug laws, “three strikes and you’re out,” mandatory minimums, new policing strategies were tried and discarded. The rate of violence peaked, then began to fall steeply starting in the mid-1990s.

  And through it all, the decisions were made—or not made—by democratic means. Officials were elected or defeated. Richard Nixon won vowing to the Republican convention he would appoint a “new attorney general” and seek a return of “order in America.” Conversely, Democrats who voted for the crime bill lost seats in the 1994 election, helping to swing Congress to the Republicans. “Three strikes and you’re out” laws spread after a referendum victory in California that same year.

  The courts, in short, stayed out. As crime policy—even gun laws—were debated, few thought that some constitutional provision, long submerged, in fact could strap limits on what society could and could not do to preserve order.

  The constitutional consensus was expressed pungently by Chief Justice Warren Burger, appointed by the president who ran on “law and order”:

  This has been the subject of 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. Now just look at those words. There are only three lines to that amendment. A well regulated militia—if the militia, which was going to be the state army, was going to be well regulated, why shouldn’t 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It’s got to be registered, that you can’t just deal with at will.

  PART

  TWO

  FIVE

  Revolt at Cincinnati

  The NRA bills itself “the nation’s longest standing civil rights organization.” That’s not exactly how it started.

  During the Civil War, Union officers had grown perturbed at the poor marksmanship of their troops. Previously, guns were inaccurate, and target practice a waste of time. Now new technology—breech-loading guns and metal cartridge ammunition—made shooting a prized skill. In 1871, militia and army veterans created a new organization to train American men to shoot safely and accurately: the National Rifle Association. General Ambrose Burnside—yes, the same gent whose name lives to describe his distinctive whiskers—served as ceremonial president for a year. Government helped: New York State bought the NRA a rifle range to hold contests. The organization nearly collapsed when the state withdrew its support. “There will be no war in my time or in the time of my children,” New York’s governor assured the group’s leader. “The only need for a National Guard is to show itself in parades and ceremonies.” So federal officials stepped in, creating the National Board for the Promotion of Rifle Practice in 1901. It gave away surplus guns to clubs sponsored by the NRA. Between the world wars, the federal government provided 200,000 rifles to NRA members at cost. After the defeat of Japan, with its membership swelled, the NRA began to shift its focus. Its publications dwelled on hunting and sports shooting, not paramilitary activity. The group lobbied, and was based in Washington, D.C., but its principal focus was bagging deer, not blocking laws. In the late 1950s, it opened a new headquarters building to house its hundreds of employees. Metal letters spelled out its purpose in 1958: FIREARMS SAFETY EDUCATION, MARKSMANSHIP TRAINING, SHOOTING FOR RECREATION.

  The NRA expressed unease with gun laws. But even as its ranks grew, it did not object to the first federal gun control measure, Franklin Roosevelt’s 1934 National Firearms Act, which banned machine guns and sawed-off shotguns. Its chief lobbyist testified before Congress. “I have never believed in the general practice of carrying weapons,” he told a House committee. “. . . I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.” A lawmaker asked him whether the proposed law violated any part of the Constitution. The witness responded, “I have not given it any study from that point of view.”

  Crime remained low, and political violence minimal, in the years of consensus during World War II and the early Cold War. The tumult of the 1960s fractured that calm. Gun violence began to assume the status of a public controversy.

  In March 1963, an advertisement appeared in the NRA’s American Rifleman magazine:

  LATE ISSUE! 6.5 ITALIAN CARBINE. Only 36″ overall, weighs only 5 ½ lbs. Shows only slight use, lightly oiled, te
st fired and head spaced, ready for shooting. Turned down bolt, thumb safety, 6-shot, clip fed. Rear open sight. Fast loading and fast firing.

  A man calling himself “A. Hidell” clipped the coupon and sent $21.45 to a Chicago-based mail order house to buy the military rifle. Hidell was Lee Harvey Oswald. After the assassination in Dallas, investigations angrily focused on the fact that it was possible to buy a rifle and ammunition sight unseen through the mail. Congress considered new gun laws. An NRA official testified, “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.” Gun owners, however, contacted Congress to bury the bill. Lawmakers vowed an investigation of the gun lobby itself.

  As the decade unfolded, political divisions took on deep cultural dimensions, pitting rural and suburban culturally conservative white voters against younger, more diverse city dwellers. Race invariably intruded. American Rifleman started a new column, “The Armed Citizen,” which profiled vigilantes. Guns & Ammo magazine said supporters of tighter gun rules were “criminal-coddling do-gooders, borderline psychotics, as well as Communists and leftists who want to lead us into the one-world welfare state.” As Newark, Watts, and Washington, D.C., burned in urban rioting, and leading American public figures were assassinated, Americans began to worry we were distinctly violent. Historian Richard Hofstadter ruminated on America’s gun culture in a widely read article in the otherwise apolitical American Heritage. Gun politics deepened cultural divides, he noted. “The most gun-addicted sections of the United States are the South and the Southwest. In 1968, when the House voted for a mild bill to restrict the mail-order sale of rifles, shotguns, and ammunition, all but a few of the 118 votes against it came from these regions. This no doubt has something to do with the rural character of these regions, but it also stems from another consideration: in the historic system of the South, having a gun was a white prerogative.”

  In a time of backlash, the NRA grew increasingly vocal. When lawmakers trifled with it, the gun lobby showed it could retaliate at the ballot box. For years after, politicians would whisper about the intense passion of gun owners, and how they “took out” a pro–gun control senator from Maryland, Joseph Tydings, whose pelt might as well have been mounted in the NRA’s waiting room.

  Still, the NRA principally spoke for hunters. It did not pose in opposition to law enforcement, or government generally, and it did not routinely invoke the Second Amendment. Though it did not support the 1968 gun bill, its opposition was muted. “The measure as a whole appears to be one that the sportsmen of America can live with,” the organization’s president assured members. In March of that year, supporting restrictions on cheap “Saturday Night Special” handguns, American Rifleman told its readers the NRA “does not necessarily approve of everything that goes ‘Bang!’ ” The magazine’s cover displayed a cheery defining image. A trim and chiseled man, resembling Paul Newman with a jaunty peaked cap, pine trees towering behind, held up a recently demised mountain lion.

  The stance in favor of the Saturday Night Special ban set in motion forces that would supplant that grinning hunter in the NRA’s pantheon of acceptable images.

  Gun group veterans still call the NRA’s 1977 annual meeting the “Revolt at Cincinnati.” One weekend in 1976, the NRA board fired eighty staff members. The next year, the organization’s leadership decided to move its headquarters to Colorado Springs, Colorado, signaling a retreat from politics. More than a thousand angry dissidents showed up at the annual convention. Many wore orange caps, and communicated by walkie-talkie. As they sweltered they insinuated that the old guard had turned off the air-conditioning. By four in the morning, the dissenters had voted out the organization’s leadership. Activists from other groups—the Second Amendment Foundation, the Citizens Committee for the Right to Keep and Bear Arms—pushed their way into power. Neal Knox, editor of Gun Week magazine, became the NRA’s new head lobbyist. He opposed gun laws of any kind. Knox mused on whether the assassinations of the 1960s were part of a gun control conspiracy. “Is it possible that some of those incidents could have been created for the purpose of disarming the people of the free world? With drugs and evil intent, it’s possible,” he wrote in Shotgun News in 1994. “Rampant paranoia on my part? Maybe. But there have been far too many coincidences to ignore.”

  The NRA’s new leadership was dramatic, dogmatic, and overtly ideological. For the first time, it embraced the idea that the sacred Second Amendment—not just the interests of hunters or even of homeowners—was at the heart of its concerns. The first American Rifleman after the revolt had a new paragraph under “What the NRA Is”:

  The NRA, the foremost guardian of the traditional American right to “keep and bear arms,” believes that every law-abiding citizen is entitled to the ownership and legal use of firearms, and that every reputable gun owner should be an NRA member.

  The NRA’s lurch to the right was part of an abrupt shift across the Republican coalition.

  Forget baby boomer reveries and public television music documentaries. The rebellions of the 1960s seemed earthshaking at the time. In retrospect, the response from the right (and unnerved middle-class citizens) proved more politically potent and durable. Racial fears played an elemental part, especially as millions of white Southern Democrats left the party of their ancestors to vote Republican, first for president and then more reluctantly for Congress. Once sleepy groups galvanized as conservative activists wrested control. The NRA was one. Evangelical Christian churches underwent a similar change. Southern Baptists long had eschewed organized electoral politics. In 1976, most voted for Jimmy Carter, who became the first professedly born-again president. The Southern Baptist convention was convulsed by factional fights that led to the elevation of fundamentalist leadership—ministry devoted to the idea that Scripture was inerrant. Even more politically, in 1979 television minister Jerry Falwell and other conservative activists formed the Moral Majority, a coalition of religious conservatives. By 1980 nearly three quarters of them voted for Reagan. Soon conservatives tossed around the language of insurrection with the ardor of a 1960s Weatherman. The “Revolt at Cincinnati” was followed by the “tax revolt,” which began in California in 1979. Conservative activists organized to pass Proposition 13, which slashed property taxes and shrank budgets with an impact that lasted for three decades. In Arizona, Colorado, and other Western states, landowners opposed the Interior Department environmental policies in a “sagebrush rebellion.” Organized business shifted, too, albeit with a less mutinous stance. Corporate lobbying had been a hushed affair, with big companies such as Procter & Gamble or General Motors wooing and contributing to Democratic and Republican incumbents alike. Power and initiative shifted to the U.S. Chamber of Commerce and other ideologically charged coalitions. In the late 1970s, the Chamber supplanted the Business Roundtable (the genteel organization of CEOs) as a free-spending lobbying organization for deregulation, tax cuts, and laws to make it harder to organize a union. Business lobbying organizations became more political, more partisan, harder hitting.

  The New Right stitched together causes, some intrinsically at odds with others. Social conservatives sought to restore traditional gender roles and values. Economic conservatives wanted lower taxes and a reduced regulatory role for government. Foreign policy moved Northern Catholic “Reagan Democrats” and formerly liberal Jewish “neoconservatives,” especially when Democrats seemed weak in the long twilight struggle against communism. As the rights language of the social movements of the 1960s began to permeate society, conservatives began to adopt them. Young conservatives spoke less frequently of “tradition,” more of “freedom.” Broad and growing disdain for government deepened the appeal. In 1958, measured by polls, 78 percent trusted the government to “do what is right” most or nearly all the time. By the late 1970s that had fallen to 25 percent.

  In its new militance, the NRA fused with other conservative organizations in an ov
ertly political coalition. Journalist Thomas Byrne Edsall, the most acute chronicler of the shift, wrote, “Over the past forty years the Republican Party and the conservative movement have together created a juggernaut—a loosely connected but highly coordinated network of individuals and organizations—with a shared stake in a strong, centralized political machine.” The NRA became critical to that new machine, providing fierce energy and dedicated voters. From the time of the first urban rioting in 1964 until Ronald Reagan’s first year as president, membership tripled (from 600,000 to 1.9 million).