“A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” ~ Second Amendment, U.S. Constitution
Following the Sandy Hook massacre, gun rights, gun laws and the Second Amendment have been the subject of a national dialogue. Any discussion of these topics is severely tainted by calculated messaging by the NRA to deceive and mislead our citizens to believe that the Second Amendment grants far reaching gun rights which have not and do not exist.
The Second Amendment became part of our constitution in 1791. For well over two centuries the Supreme Court never decided that the Amendment granted a constitutional right to individuals to bear arms. The widely held notion that such a right existed was a myth fabricated by the NRA for its own self interest and for the corporate profits of gun manufacturers. This fabrication altered the mindset of most Americans to accept fictional Second Amendment rights that permitted the proliferation of all manner and kind of dangerous weapons. We became a gun culture run rampant. The gun manufacturers reaped enormous profits as gun sales soared. In 2011 industry wide gun sales were $4.3 billion. Misconceptions generated by the NRA created a warped interpretation of Second Amendment that generated these sales.
The fraud perpetrated by the NRA is patent. We do not heed the warnings of prominent citizens such as former attorneys general Nicholas Katzenbach, Ramsey Clark, Elliot L. Richardson, Edward Levi, Griffin B. Bell and Benjamin R. Civiletti. The joint statement in the Washington Post of these former attorneys general in 1992 reads as follows:
“For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state Militia: it does not guarantee immediate access to guns for private purposes. The nation can no longer afford to let the gun lobbies’ distortion of the constitution cripple every reasonable attempt to implement an effective national policy towards guns and crime.”
In a PBS News Hour interview in 1991, former Supreme Court Chief Justice Warren Burger referred to the NRA Second Amendment myth as “one of the greatest pieces of fraud, I repeat the word fraud, on the American people by any special interest group that I have ever seen in my lifetime.”
The opinions of these distinguished legal scholars had no bearing on NRA propaganda that continued unabated. During the weeks before the 2000 general election, a self-anointed constitution “scholar,” Charleton Heston, ceremonial president of the NRA, flooded the airways to urge voters to support candidates who would protect and preserve Second Amendment rights. Little did most Americans realize that such rights did not exist. The NRA’s reading of the Second Amendment was purely fictional and unsupported by the law of the land.
Candidates for public office both state and federal reaped in political contributions from the NRA. These elected officials feared the wrath of the NRA should they stray from the NRA’s Second Amendment myth.
A norm evolved offering sanctity to gun owners and manufacturers. Gun manufacturers and the NRA prospered and profited. As one gun manufacturing executive states the equation, the NRA “protects our Second Amendment rights and those rights protect the ability to buy our products.” Elected officials stand idly by while gun deaths and massacres escalate without lasting public outcry or meaningful legislative efforts.
The statistics are staggering. The depth of lost life is evident by comparing deaths in foreign wars and firearm deaths of citizens within our borders. In all foreign wars during our history about 650,000 soldiers died. In the 45 years since Robert Kennedy and Martin Luther King were assassinated in 1968, there have been over 1.3 million deaths in our country caused by firearms. The fraud perpetrated by the NRA as recognized by former Chief Justice Burger is linked to these deaths. The blood of thousands upon thousands of Americans permanently stain the hands of NRA CEO Wayne LaPierre.
How did the NRA gain such power and influence on our citizenry? For the first century of its existence beginning in 1871, the NRA primarily devoted its efforts to gun safety. Following enactment of new restrictive gun laws requiring gun licensing and taxes, a 1977 coup within the NRA membership led by militants resulted in a new harder edged and more aggressive NRA. The truth mattered not. The edifice of the NRA headquarters would now bear an abbreviated version of the Second Amendment: “The Right of the People to keep and Bear Arms Shall not be infringed.” The NRA amended the Constitution unilaterally to avoid even a hint that the language pertaining to a Militia had any meaning. The law of the land spoke otherwise.
In 1939 the Supreme Court issued the Miller decision. The justices ruled that “the Second Amendment must be interpreted and applied with the view of its purpose of rendering effective Militia.” That was the state of Second Amendment law until the 2008 Heller decision. Prior to Heller, the Supreme Court never recognized that individuals had an individual right to keep and bear arms. It was the NRA propaganda, not the law of the land, that led the cry for unlimited gun ownership and protection of gun owner rights. The NRA myths allowed the cycle of expanded gun sales and NRA power to purchase political influence. Democrats and Republican alike announced their allegiance to the Second Amendment and the public grew to believe that the NRA view of the Second Amendment was consistent with constitutional law. The NRA controlled too many elected officials to allow for protection of our citizens from gun violence, gun deaths and unspeakable gun horrors in schools and public places.
The NRA myths were disseminated on other fronts. Articles appeared in NRA publications and rewrote history by declaring that “Armed citizens [were] unregulated except by his own ability to buy a gun at whatever price he could afford.” This credo became an NRA rallying cry.
The NRA poured millions upon millions of dollars into congressional and state legislative campaigns. Gun owners and manufacturers poured more money into the NRA. The revisionist view of Second Amendment rights gained momentum in 1982 when a Senate judiciary subcommittee issued a report about the discovery of “long lost proof” of an individual’s constitutional right to bear arms. The chair of the subcommittee was Utah Senator Orrin Hatch. The “proof” has never surfaced.
For over three decades the NRA funded legal research, legal seminars and pushed for law review articles supporting individual rights to bear arms. This and the NRA persuasion of elected officials led to a dramatic shift in Second Amendment legal views. In 2003 the NRA established a $1 million chair at George Mason University law school. The views of NRA supported professors and legal scholars were relied on in the 2008 Supreme Court decision finding an individual right to bear arms for the first time.
What did the Supreme Court say in the 2008 Heller decision? The Court held that there existed an individual right to bear arms only for traditional purposes such as self-defense in the home. The Court declared that the Second Amendment should not be understood as conferring a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court gave examples of firearms laws presumed to be lawful. These included laws prohibiting firearm possession by felons, mentally ill persons and possession of firearms in sensitive places such as schools and government buildings. The Court found that conditions on the commercial sale of firearms were presumptively lawful. The Court said this list was not exhaustive; and found that the Second Amendment is consistent with laws banning firearms that are “dangerous and unusual.”
The ruling in Heller was a departure from the 1939 decision in the Miller case where the court stated that the “obvious purpose” of the Second Amendment was to ensure effectiveness of the stated Militia. However, even with this departure the decision in Heller is limited in its scope. The only right specifically mentioned in the Supreme Court’s opinion is the right of an individual to possess a gun for self-defense in the home.
Did this limited decision stop the NRA from its propaganda campaign? Of course not. On Meet the Press on March 24, 2013, Wayne LaPierre declared to the nation that under the Heller decision it would be an “absolute abridgement” of constitutional rights to regulate assault weapons. That myth, heard by millions, was intended to again mislead the country into believing that there are sweeping Second Amendment rights that cannot be regulated. Nonsense. The very language of the Supreme Court opinion in Heller calls out LaPierre as a liar.
How can the American people be educated to understand the true meaning of the Second Amendment consistent with the Supreme Court’s interpretation of that Amendment? Such an education process could lead to sweeping reform of state and federal regulation of firearms. But how is the mindset of the American people to be changed? The same way our mindset about drunk driving and smoking changed over time. Let’s take a look at the circumstances involved in smoking. Smokers 35 years ago would never have believed there would be no public smoking. When harms caused by drunk drivers and tobacco users were known in clear terms, the mindset of the public changed. New reforms, enforcement of laws and demands for a safer society became reachable goals. The change in that mindset did not take place in a day a week or a year. Nor will the change in the mindset regarding Second Amendment rights change overnight. But it is the education of the citizenry and the education of our lawmakers that is necessary in order for the calculated messaging of the NRA to be known for what it is: Lies, myths and fictions that have harmed and killed our citizens and will continue to do so until an enlightened view of the very limited scope of Second Amendment rights is known, understood and acted upon.
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Burton NewmanAttorney; Adjunct professor, Washington University School of Law