The Second Amendment

by Michael Waldman

  As the NRA emphasized the Second Amendment, Reagan gave the new constitutional thrust rhetorical support. The 1972 Republican platform had supported gun control. “We pledge a tireless campaign against crime—to restore safety to our streets, and security to law-abiding citizens who have a right to enjoy their homes and communities free from fear. We pledge to . . . intensify efforts to prevent criminal access to all weapons, including special emphasis on cheap, readily-obtainable handguns . . . with such federal law as necessary to enable the states to meet their responsibilities.” In 1975, preparing to challenge Gerald R. Ford for the Republican nomination, Reagan wrote, “The Second Amendment is clear, or ought to be. It appears to leave little if any leeway for the gun control advocate.” The 1980 GOP platform now proclaimed, “We believe the right of citizens to keep and bear arms must be preserved. Accordingly, we oppose federal registration of firearms.” It called for repeal of some existing gun laws. That year the NRA gave Reagan its first-ever presidential endorsement.

  But the organization itself stumbled during Reagan’s term. The would-be assassin who grievously wounded presidential press secretary James Brady fired his six shots under the delusion they would impress movie actress Jodie Foster. Brady and his wife mounted a long campaign to require a five-day waiting period for purchasing a handgun, to keep them out of the hands of the mentally ill and criminals. Reagan supported the move. The NRA pulled back, fired its lead lobbyist, and went through a bout of internal recriminations. Membership shrank and its finances withered. It recovered as its members demanded more militance. “ ‘What if there had been a Brady Bill 150 years ago? What if they had to wait seven days to get their rifles to come to the Alamo and fight?’ an NRA vice president . . . shouted to loud applause at the annual meeting in 1991 in San Antonio,” according to a Washington Post account.

  Bill Clinton’s election as president boosted NRA membership another 600,000. Clinton had tangled with the group in Arkansas. More than most national Democrats, Clinton was acutely aware of the cultural gulf separating rural gun owners from those worried about crime in crowded urban neighborhoods. His electoral strategy appealed to Reagan Democrats who had left the party, often over cultural issues. Clinton’s agenda offered a complex mix of policies and signals. Violence was at an all-time high when he ran. Campaign commercials bragged he was a “New Democrat” who supported the death penalty. In speeches to black audiences, he drew applause when he spoke of the toll of gun violence. He extemporized his best-remembered presidential speech in the Memphis pulpit where Martin Luther King Jr. preached his last sermon. Were King to return, Clinton mused, he would be pleased by racial progress. “But he would say, I did not live and die to see the American family destroyed. I did not live and die to see 13-year-old boys get automatic weapons and gun down 9-year-olds just for the kick of it.” Seeking to mollify gun rights supporters, he often noted that half the people in Arkansas had hunting or fishing licenses. But he signed the Brady Bill as well as a ban on fourteen kinds of assault weapons. “Not a single hunter in America has lost a weapon or missed a season as a result,” he bragged.

  But the tough votes on gun measures cost Democrats dearly in the 1994 midterm elections. Rural incumbents, including Speaker of the House Thomas Foley of eastern Washington State, lost as the Republicans took both chambers. “The NRA is the reason the Republicans control the House,” Clinton groused two months later. Conventional wisdom echoed Clinton’s plaint, though in fact numerous factors were involved, including a tax increase. Still, Democrats developed a strong muscle memory: stay away from gun control.

  Despite Clinton’s sure political touch, his drawled soft sell to fellow duck hunters may have missed a step. The NRA and the gun rights movement had moved beyond traditional sporting concerns. Increasingly it took on an apocalyptic, insurrectionist tone: an organization that started as a project of Union Army officers now challenged government’s very legitimacy. Clots of angry citizens had begun to form armed “militias,” warning that United Nations troops flying black helicopters would soon stage raids on the heartland. An organizational resolution declared: “Although the NRA has not been involved in the formation of any citizen militia units, neither has the NRA discouraged, nor would NRA contemplate discouraging, exercise of any constitutional right.”

  Wayne LaPierre had been the organization’s executive vice president and chief executive since 1991. Once he had almost gone to work for liberal Speaker of the House Tip O’Neill. In 1995, he signed a fund-raising letter to the NRA’s 3.5 million members calling federal law enforcement agents “jack-booted government thugs.” He continued, “In Clinton’s administration, if you have a badge, you have the government’s go-ahead to harass, intimidate, even murder law-abiding citizens.” Shortly after, domestic terrorist Timothy McVeigh killed 168 people in the bombing of the federal building in Oklahoma City. When arrested, McVeigh wore a T-shirt emblazoned with Thomas Jefferson’s paean to armed insurrection at the time of Shays’ Rebellion, “The tree of Liberty must be refreshed from time to time with the blood of patriots and tyrants.” His co-conspirator was part of an antigovernment movement styling itself a modern militia. News accounts noted that the NRA board now included the founder of Soldier of Fortune magazine. Former President George H. W. Bush resigned from the group to protest its incendiary rhetoric. The NRA had plunged fully into the culture wars.

  After Oklahoma City, seeking to steer a less incendiary course, NRA leaders elected Charlton Heston first vice president. He later served as its president. Heston had played Moses in The Ten Commandments and the chariot-racing slave in Ben-Hur. He had marched with King as part of the Hollywood contingent at the 1963 March on Washington. He used new rhetoric, bound up in a man’s duty to stand guard:

  I am not really here to talk about the Second Amendment or the NRA, but the gun issue clearly brings into focus the culture war that’s going on.

  Rank-and-file Americans wake up every morning, increasingly bewildered and confused at why their views make them lesser citizens. . . . Heaven help the God-fearing, law-abiding, Caucasian, middle class, Protestant, or—even worse—Evangelical Christian, Midwest, or Southern, or—even worse—rural, apparently straight, or—even worse—admittedly heterosexual, gun-owning or—even worse—NRA-card-carrying, average working stiff, or—even worse—male working stiff, because not only don’t you count, you’re a downright obstacle to social progress. . . . That’s why you don’t raise your hand. That’s how cultural war works. And you are losing.

  Heston framed the fight for gun rights at the heart of the long struggle for freedom. He gave a legendary speech before the NRA’s 2000 annual meeting, as Vice President Al Gore ran for president. He rhapsodized,

  sacred stuff resides in that wooden stock and blue steel, something that gives the most common man the most uncommon of freedoms. . . . When ordinary hands can possess such an extraordinary instrument, that symbolizes the full measure of human dignity and liberty.

  As we set out this year to defeat the divisive forces that would take freedom away, I want to say those fighting words for everyone within the sound of my voice to hear and to heed—and especially for you, Mr. Gore.

  He held aloft a replica of a colonial rifle, and growled to a roar, “From my cold, dead hands!”I

  The NRA moved into new headquarters. Oversized letters on the facade no longer referred to marksmanship. Instead, the wall of the building’s lobby was emblazoned with the Second Amendment. Visitors might not notice that the text on the wall is not quite accurate. 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—was edited out.

  “THE STANDARD MODEL”

  Second Amendment fundamentalism was rising. But courts, scholars, and the legal community with rare unanimity for much of the century had agreed that the Second Amendment did not mean what the camouflage-clad attendees at Charlton Heston speeches said it d
id. There was no more settled view in constitutional law than that the Second Amendment did not protect an individual right to own a gun.

  After all, the Supreme Court had considered the matter four times, and had never found a Second Amendment right to individual gun ownership. In the Reconstruction-era Cruikshank case, it ruled that the amendment did not cover the states. In Presser, it found that gun rights belonged to militias. In Miller v. Texas in 1894, it rejected the criminal defendant’s gun right claim. In the 1939 Miller case, it upheld federal gun law, making clear that gun laws only could not interfere with actual, current militia service. Lower courts agreed, when they considered the topic at all. Few litigants even raised an alternative view: it was seen as frivolous, a fringe position. But by the time the Supreme Court heard another challenge in Heller, there was strong momentum for a different view. What happened?

  One key factor was a tsunami of scholarship and pseudo-scholarship that argued the traditional view—shared by courts and historians—was wrong. These new academic advocates insisted there had been a colossal constitutional mistake. The legislatures that had passed public safety laws to address modern conditions, and the courts that had upheld those laws, had been in error. The Founders, and their words, would show us how to put it right.

  One political scientist examined a century’s worth of law review articles on the Second Amendment. From the time the reviews began to be indexed in 1888, to 1960, every single article concluded the Second Amendment did not guarantee an individual right. The first to argue otherwise—written by a student, who began by citing an article in American Rifleman—appeared in 1960. It said the amendment enforced a “right of revolution,” of which the Southern states availed themselves during what the author called “The War Between the States.” Throughout the 1960s, only a few articles echoed that view. Then a squad of lawyers and law professors began to churn out law review submissions at a prodigious rate. Historian Carl Bogus writes, “From 1970 to 1989, twenty-five articles adhering to the collective rights view were published (nothing unusual there), but so were twenty-seven articles endorsing the individual rights model. However, at least sixteen of these articles—about 60 percent—were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations, although they did not always so identify themselves in the author’s footnote.”

  Among the most prominent was Stephen Halbrook. He served as a lawyer in the NRA’s general counsel’s office, a fact unmentioned in his biography in many of his law review essays. By one estimate, three strikingly prolific writers—Halbrook, Don Kates, David Hardy—wrote thirty law review articles in the 1990s and received a million dollars in funding to back their work on gun issues. One lawyer, David Kopel, wrote or coauthored nineteen law review articles over the decade. Funds flowed freely. 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. The NRA Civil Rights Defense Fund’s annual “Stand Up for the Second Amendment” contest offered $25,000 for the best essay. In 1992, it partly funded the founding of a group, Academics for the Second Amendment, which held conferences and filed briefs. The NRA paid one lawyer $15,000 to write a harsh book review of Saul Cornell’s A Well-Regulated Militia, among other tasks.

  It is hard to convey fully the circular nature of these writings. One after another, they plumbed the same material, extracted the same quotes, and piled up citations to one another. Soon they began to include self-congratulatory explanations of how many other articles made the same point. Joyce Lee Malcolm bragged to a magazine writer, “There is no one for me to argue against anymore.” The respected libertarian law professor Glenn Reynolds in 1995 surveyed the terrain and declared there was a new “Standard Model,” akin to the ones adopted by physicists or astronomers to denote a scholarly consensus.

  So far, the lawyers toiled at the fringe of respectability, far from the center of constitutional debate. One law review article changed all that. Sanford Levinson is a prominent, well-respected liberal constitutional law professor at the University of Texas at Austin. In 1989, he published an article tweaking other liberals for ignoring “The Embarrassing Second Amendment.” It argued that the Founders intended to grant people the right to rebel. “For too long, 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.” He was joined by Akhil Reed Amar. The Yale professor styled himself a liberal originalist, arguing that while the Framers focused on a militia comprised of all citizens, the Fourteenth Amendment had transformed the right into one held by individuals. (Amar makes much of the fact that militias were seen to comprise all white males. Of course, the Constitution itself gave Congress the implicit power to define who was in a militia or how it would function.) Harvard’s Laurence Tribe tentatively endorsed some version of an individual rights theory in a new edition of his widely used casebook. These prominent progressives differed with one another, and offered conflicting views of the amendment and its scope. What mattered was their political provenance. (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.) Tribe and Amar later penned an op-ed decrying the idea that people might think the Second Amendment precludes gun regulations then before Congress.

  It’s important to note who did not change their view of history: historians. Those who spent years exploring the history, context, and meaning of the Founding Era continued to conclude, with one or two exceptions, that the Framers’ concern about militias had animated the Second Amendment. Jack Rakove, Pulitzer Prize–winning historian and author of Original Meanings, notes:

  It is one thing to ransack the sources for a set of useful quotations, and another to weigh their interpretive authority. Originalism is first and foremost a theory of law and constitutional interpretation, but its viability depends upon its approach to history and its uses of historical evidence. . . . [In] fact only a handful of sources from the period of constitutional formation bear directly at the heart of our current controversies about the regulation of private firearms. If Americans had indeed been concerned with the impact of the Constitution on this right, and had addressed the subject directly, the proponents of the individual rights theory would not have recycled the same handful of references to the dissenters in the Pennsylvania ratification convention and the protests of several Massachusetts towns against their state’s proposed constitution, or to rip promising snippets of quotations from the texts and speeches in which they are embedded.

  The revisionist wave came not from historians but from lawyers, and law professors. “Law office history” describes the practice of plucking facts or quotes out of time or out of context to fit a legal argument. It is a style familiar to those who write or read briefs. The revisionist writers practiced it with gusto. It is also worth understanding the distinct, somewhat anomalous position of law review articles. Unlike similar journal articles in, say, history, economics, medicine, or mathematics, law review articles are not subject to peer review. Students choose and edit them. Yet courts cite them frequently. When it comes to gun rights, the revisionist articles played a crucial role.

  When one delves into the articles’ historic claims, a startling number of them crumble.

  Some of the assumptions are simply funny. In his book on judicial philosophy, Justice Antonin Scalia, for example, lauded Joyce Lee Malcolm’s “excellent study” on the English Bill of Rights, noting snarkily that “she is not a member of the Michigan Militia, but an Englishwoman.” Carl Bogus 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.”

  Garry Wills strafed some of the more risible clai
ms of the “Standard Modelers.” Stephen Halbrook, for example, consulted a Federal Era dictionary to discern the meaning of “bear arms.” The dictionary lists “to bear arms in a coat.” And only a handgun, not a musket, could fit in one’s coat pocket. Thus the amendment must have meant to cover firearms carried for personal protection. “Mr. Halbrook does not recognize the term ‘coat of arms,’ a decidedly military form of heraldry presided over by the College of Arms (by Mr. Halbrook’s interpretative standards, a medical institution specializing in the brachium),” Wills wrote.

  Then there was the ringing declaration from Patrick Henry: “the great object is, that every man be armed.” The eloquent patriot’s pronouncement provided the title for the ur-text for the gun rights movement, Halbrook’s 1984 book, That Every Man Be Armed. It is cited reverentially elsewhere. Glenn Reynolds pointed to it in his 1995 article excitedly proclaiming the “Standard Model.” The quote adorns websites and posters. 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.”

  As we have seen already, that is not what Henry said. The Virginian actually was issuing a protest against the expense of two levels of government—the federal and the state—buying arms for the militia at the same time. (“At a very great cost, we shall be doubly armed.”) Far from a ringing statement of individual gun-toting freedom, it was an early American example of a local politician complaining about government waste.

  Advocates pluck such quotes out of context with zest known previously only to those who write movie posters. Thomas Jefferson offers numerous opportunities. Don Kates enthused, “Historical research demonstrates the Founders out-‘NRAing’ even the NRA. . . . ‘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. Not to worry: as of 2013 the NRA website still included the quote. If all else fails, you can still go online to buy a T-shirt emblazoned with Jefferson’s mangled words.