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The Second Amendment and the NRA’s Deceit
The Stoneman Douglas mass shooting tragedy has thrust the Second Amendment to center stage yet again. NRA leaders have responded as usual, using the Second Amendment as both shield and sword to hold at bay any gun regulation and attack those who disagree as unpatriotic “socialists” who “want to make all of us less free.” Having just completed a research paper on the Second Amendment, I can safely say that the NRA’s rhetoric fails to hold up against history and, in some cases, amounts to pure deceit.
Undoubtedly, the Second Amendment is ambiguous and the historical record is far from black and white. Firearms were widely prevalent during the time of America’s founding, deemed essential for hunting, safety and the common defense. So too, however, were gun regulations. Most colonies (and later states) had laws curbing the carrying and use of firearms. New York, Boston, and Philadelphia restricted the firing of guns within city limits. Likewise, it is true that the Founders generally believed people had a right to own guns. The key question, however, is whether they intended to provide a Constitutional protection of that right outside the context of a well-regulated militia. My research suggests that the need to protect state militias, rather than the desire to provide for a personal right to arms, primarily motivated the Second Amendment.
To approach this issue, one must recognize the near obsessive belief in the virtue of militias around the Revolutionary War period. With no standing army and no police force, militias served multiple purposes and formed the primary line of defense. Tens of thousands of colonists trained to join militias to take on the British. After the war, militias were praised by Washington and others as the “palladium” of our security. Among the strongest Anti-Federalist attacks against the Constitution centered on the federal government’s ability to establish a standing army and disarm state militias. These concerns primarily underlay calls for a Constitutional amendment to protect militias.
Even before the Bill of Rights, six state Constitutions protected the ability to maintain and arm a militia. Interestingly, Thomas Jefferson had proposed a broad right to arms for hunting and self-defense for Virginia’s state Constitution, but the drafting committee (on which James Madison, future Bill of Rights author, was a member) rejected the suggestion and instead protected the right to arm a “well regulated militia.” Only two state constitutions (Pennsylvania and Vermont) protected a right to arms outside the militia context.
Arguments at the Constitutional Convention centered on the need to protect state militias. Scholars have found virtually no evidence of any discussion at the Convention of a need to protect a private right to arms outside the militia context. During the Constitution’s ratification process, several states proposed amendments protecting militias. In the most notable exception, an Anti-Federalist minority in Pennsylvania proposed an amendment protecting a broad right to arms for hunting and self-defense, but it was defeated and did not make it out of the state convention. The same pattern occurred in Massachusetts. In the end, the vast majority of state proposed amendments to the Constitution linked the right to arms with militia service.
At the time Madison drafted the Bill of Rights, he had the benefit of this full record. Had he wished to provide for a broad individual right to arms – of the type relentlessly asserted by the NRA – he could have drawn on the few minority precedents that did so. Madison, however, based his initial draft closely on the Virginia model referring to a well-regulated militia. Debates in the House and Senate, which revised and refined Madison’s draft, likewise centered on protecting militias from federal control, with no mention – literally none – of a right to arms outside the militia context. The final version of the amendment that passed the Senate even more closely tied the opening militia clause with the right to bear arms than Madison’s original draft.
To be sure, again, throughout this period, formidable voices had advocated for a broader right to arms in different forums, but they appear to have been in the minority. Borne of the struggle between Federalists and Anti-Federalists, the Bill of Rights sprung from efforts to address objections to the Constitution. In the case of the Second Amendment, these predominantly centered on the need to protect state militias from dismantling by the federal government, rather than providing for an individual right to arms for self-defense, hunting or other personal purposes.
The NRA selectively draws from this complex record in brazen fashion. When asked at a CNN Town Hall what a “well-regulated militia” meant, the NRA’s Dana Loesch quoted Founder George Mason as saying it consists of “the whole people” to suggest Mason intended to insinuate that anyone with a firearm can form a militia. Mason’s ensuing words, however, clearly reveal a very different concern, namely the ability of Congress to limit and control state militias. What Mason sought was confirmation that states (rather than the federal government) might select, arm and discipline militias.
Loesch went on to assert that, to the Founders, a well regulated meant “any man or any woman who could operate and service their firearm.” This likewise flatly distorts reality and would make meaningless the term well regulated. In fact, we do have some idea of what well regulated meant. Militias around the founding period generally existed under the mandate of state or local authority. Rather than ad hoc gatherings of random people with guns, these militias arose under a legal structure with rules. The very person Loesch misquoted – George Mason – had expressly indicated that militias should exist under a “regular and proper militia law.” Several influential publications of the period differentiate a “well-regulated militia” from merely arming citizens and yielding an armed mob. The two most influential treatises on militia, written by a future Congressman, Secretary of State and Secretary of War, directly undercut Loesch’s blunt claim, viewing a random, untrained armed citizen as a “useless, nay a mischievous expense of time, money and ammunition.”
Being ignorant of, or intentionally twisting, historical facts should be disqualifying, but for the NRA it appears a job criteria. For example, an NRA website quoting several Founding Fathers lists virtually every quote inaccurately or out of context. The site quotes the proposed Virginia Constitution of 1776 rather than the actual Virginia Constitution, which (as noted above) centered on the militia. It quotes Madison in Federalist 46 regarding “the advantage of being armed which Americans possess over people of almost every other nation,” omitting the rest of Madison’s sentence that these citizens would be led by “subordinate governments” or “united and conducted by governments.” Madison’s few words on the subject suggest that he, too, viewed the militia as operating under local, state or federal control – not the free-wheeling gun toting citizens suggested by the NRA.
The Supreme Court ruled, for the first time in 2008, that the Second Amendment provides for a right to firearms outside of militia service. That landmark case was a 5-4 decision split down ideological lines. Yet, even that case recognized that the Second Amendment right “is not unlimited,” and that the ruling did not cast doubt on “longstanding prohibitions” on firearms “in sensitive places such as schools” or laws “imposing conditions and qualifications on the commercial sale of arms.” In short, our problem today is not the Second Amendment.
No, the source of our tragedy is the NRA, a group whose rise in power parallels the rise in school mass shootings. Which makes Dana Loesch’s subsequent snide comment that many in the press “love mass shootings” due to the ratings even more ironic. Gun sales and the power of the NRA have spiked after each mass shooting over the years. Using Loesch’s logic, if power and money influences behavior, the one group that ought to like mass shootings is the NRA.
Tragically, we live in a time where we can legitimately question whether we are safe in school – where students around the country can be routinely mowed down by assault rifles for nearly two decades, while the country watches paralyzed. We expect our leaders to protect us, but they have proven too corrupt or cowardly to act. If Congress cannot act to protect a child at school, then what can it do? Lurking behind the long standstill on this issue lies one singular group, undercutting every effort not just to solve the problem, but even to study the issue.
The Second Amendment represents the bedrock principle the NRA claims to defend. Its leader Wayne LaPierre quotes the Constitution and speaks of patriotism, and its website proclaims the group’s dedication to securing our freedom as “proud protectors of history’s patriots.” Yet its claims – including on the Second Amendment -- rest on ignorance and deceit. There must be a special word for a group that veils itself in the American flag yet distorts our history and twists our principles for personal gain knowing, all the time, that its actions will place innocent citizens – including school children -- in danger of their lives. Whatever that word may be, it certainly is not “patriot.”