Lake San Marcos Democratic club members and guests had the privilege of hearing a fascinating, fast paced talk entitled “How the NRA Rewrote the 2nd Amendment to Suit Itself” at this month’s meeting. Dr. Del Dickson, author of several books on the topic and Political Science and Law professor at the University of San Diego, gave a fascinating history of the 2nd Amendment and how it evolved into the divisive issue it has become today.
For purposes of disclosure, Dr. Dickson opened his talk by proclaiming, “I grew up around guns, and I am comfortable with guns. But I am uncomfortable around people that insist on carrying them into their local Starbucks.” He hunted often as a child with his father, and over the years has amassed quite a gun collection.
Additionally, he also indicated that he has taught Constitutional Law for 29 years, and as many other lawyers and judges will also attest, never had the second amendment been taught or discussed. Until recently there simply was no misunderstanding of the intent of the simply stated few sentences . “There simply was nothing to say about it,” Dr. Dickson explained. From 1791 until 2008 the common understanding was totally related to individuals bearing arms within the context of the military.
It is important to understand the historical context at the time our Founders wrote the Constitution and Bill of Rights. After the American Revolution, local militias were regulated by the states and all able bodied men were required to report for duty when needed, but otherwise remained at home. With them at home were the weapon, whether gun or sword, that they would need to take with them when reporting for duty. At that time state militias were more of a “ragtag” like a volunteer fire department, rather than a professional army.
After the war, there was some debate over the future of the militias. Alexander Hamilton saw the future. “The time of the militias has passed,” he said as he voiced support for a more national, professional military. War was now a science, and that required a professional military. Others feared federal power and wanted state control to remain. The Bill of Rights was an attempt to compromise with the anti-federal government founders and protect states’ rights. The 2nd amendment was merely a statement to be included that would ensure that states could maintain the right to regulate and control their own militias, and in no way was intended to provide an individual the right to possess a firearm outside the context of the military service.
There are no documents in the historical record that can be found from any of our Founders that even hint at a discussion of an individual’s right to bear arms—not from the constitutional convention, congressional deliberations on the Bill of Rights, nor the state ratification conventions.
James Madison’s first draft of the 2nd amendment even more clearly indicated it was related to militias only. His version included a later removed statement that provided for the right of conscientious objectors to forego serving militarily, further cementing the tie between the right to bear arms and the military.
Hamilton’s views about the future of our military proved correct. By the mid-19th Century, the state militias were gone and the 2nd Amendment was no longer relevant. Since its original intent was no longer valid, it was never taught or included in law courses over the many ensuing years. From 1876 to 1939 the Supreme Court looked at it four times and each time ruled the same way – there is no individual right to bear arms apart from military service.
So how have we arrived at the point we are today where the 2nd Amendment is interpreted to apply to individuals outside the military context? What role has the NRA played in getting us to this point?
Interestingly, the NRA was founded in 1871 after the Civil War by Union Army officers who were upset their soldiers’ performance during the war was so poor – they couldn’t shoot straight! They founded the NRA initially to help train Americans to shoot, and the organization eventually evolved to include gun and hunter safety training.
Through the 1960’s the NRA’s sole mission was focused on teaching the proper rules of gun safety with a focus on the young via a hunter safety program. They supported most gun laws of the time, including a 1934 ban on machine guns. Until the 1970’s, they never tried to make gun rights a constitutional issue. But fear mongering (as we see today) played its role and the holdover of fear which took root during the 50’s McCarthy/Communism era began to emerge. It was during the 70’s that the NRA decided to get totally out of politics and they made a decision to move their headquarters out of Washington, DC to Colorado.
That all radically changed in 1977, when the “Revolt at Cincinnati” occurred at the NRA’s national convention. More than 1,000 members showed up ready to revolt against their leadership and subsequently removed all their current leaders, replacing them with new leaders drawn from the radical insurgency. This “revolt” was supported, perhaps instigated, by several right wing groups that overnight changed the organization from a gun safety group to a militant gun rights group.
The HQ was moved back to Fairfax, VA and they went all out selling a new interpretation of the second amendment that conveniently omits the first half of the sentence referencing “well regulated militia.” The NRA instead focused only on the second phrase of the amendment, “the right of the people to bear arms shall not be infringed.” This disingenuous half-quote appears on a huge plaque in the lobby of the NRA headquarters to this day.
Dr. Dickson gave numerous examples of how the NRA spreads their message through quotes taken out of context. For example, they often refer to a statement from Patrick Henry from 1788 where he is quoted as “The great object is every man should be armed….” but they stop there, eliminating the remainder of the quote “at a very great cost we shall be doubly armed.” Patrick Henry was not talking about gun rights; he was complaining about the spending of unnecessary money to give the military guns when each of the militia members already had their own!
Since the 70’s this “right” has become a Republican mantra. Ronald Reagan, in 1977, became the first presidential candidate ever endorsed by the NRA. With his win in 1980 the NRA officially became a force to be reckoned with. When the Republicans took over the Senate at the time, Sen. Orrin Hatch immediately commissioned a report using NRA talking points that when issued, contained no evidence or data and was deemed “all bunk” but has stayed with us ever since.
Lawyers and Judges, however, still weren’t buying it. Even Justice Berger, a Nixon appointee to the Supreme Court, said that this was “one of the greatest pieces of fraud by a public interest group.” Until 2008.
After 30 years of patiently plying the public, lawyers, and judges, with misinformation and misinterpretation the NRA finally won it’s battle to rewrite the 2nd Amendment. The 2008 suit, Heller vs. District of Columbia, was a planned case with 6 plaintiffs brought by the Libertarian think tank, the Cato Institute. It was the first Supreme Court case to decide that the Second Amendment protects an individual right to keep and bear arms for self-defense. The 5-4 decision was written by Justice Antonin Scalia. When writing his opinion, he himself ignored that first part of the amendment regarding “well regulated militia”, claiming that it was a legally irrelevant “preface”. Scalia prided himself on his textualism, originalism, and strict constructionalism, but in this case he sold out all of his principles for political reasons. Justice Scalia’s impact on American life will remain long with us for decades. The silver lining is that the Roberts Court’s rulings on gun rights have been 5-4 decisions, and might yet be vulnerable to correction by a more moderate court.