As noted in Part 1 of this series, the history of the gun-rights war is actually a history of vain attempts to control behavior through regulation, and it actually pre-dates the invention of firearms, probably going back to the very beginning of human history. But here in the U.S., the roots of the gun-rights war were planted in the soil of racism.
The right to arms was firmly ensconced in the American system and psyche as a fundamental aspect of liberty – distinguishing citizen from subject and master from slave. It is ironic that, as another group broke the bonds of slavery and strove for recognition as free men and citizens, this same fundamental principle of liberty should cause citizens to compromise their own rights in an attempt to limit the rights of others.
The two key obstacles blocking restrictions on arms at the state and local levels were originally the objections of white citizens not willing to have their rights infringed and federal intervention under authority of the Bill of Rights, and later the 14th Amendment.
But whites’ fears of lost liberty were largely overridden by their fear of ex-slaves being given the full rights of citizenship – in other words, armed blacks – and assuaged by assurances that any restrictions would apply only to “undesirables.”
The federal government was pushed out of the equation with careful parsing of the Constitution and the 14th Amendment in cases before the Supreme Court, particularly the Slaughter-House Cases and a case called US v. Cruikshank. Both cases have subsequently been reviled by scholars as being among the worst opinions ever delivered by the Supreme Court, but as recently as 2010 the Court turned down an opportunity to reverse Slaughter-House.
Prohibition and the violence it brought led to the first federal gun-control law, the National Firearms Act of 1934, or NFA, which restricted machineguns, cane and umbrella guns, short-barreled rifles and shotguns and destructive devices such as mortars and grenades. The NFA led to the first Supreme Court case directly addressing the Second Amendment, US v. Miller. In that case Miller and his lawyer were no-shows before the Court, so the only arguments were those of the government lawyers.
The Court opined that the Second Amendment’s purpose was to “assure the continuation and render possible the effectiveness of” the militia and that it must be looked at with that object in mind. They held that since there was no evidence presented to show that a short-barreled shotgun was normal military gear, its possession would not be protected under the Second Amendment.
For nearly eight decades, lower courts have used the Miller case as support for the position that the Second Amendment only applies to people and weapons engaged in active service in a government-sanctioned militia.
By the late 1950s the idea of a citizen militia was further seen as rather archaic, and there was little support for the principles of the Second Amendment. The combination of rising crime and racial tension coinciding with the importation of millions of WWII surplus military weapons at ridiculously low prices converged with a general inclination in Washington, D.C., to get the federal government more involved in just about every aspect of every citizen’s life.
There was also concern on the part of U.S. firearms manufacturers who no longer had the huge demands of the war and felt the cheap imports were undercutting their businesses. That’s when Senator Thomas Dodd, Democrat of Connecticut (a state with several major firearms manufacturers), introduced a bill to regulate the sale of firearms and ammunition, restrict firearms imports and to license gun dealers. Spurred on by the tragic assassinations of John and Bobby Kennedy, Martin Luther King, Jr., and other civil rights and political leaders, Dodd’s bill was eventually passed as the Gun Control Act of 1968, or GCA.
The fight over the law was muddied by multiple versions, including some with much harsher and restrictive provisions. This led many to see Dodd’s final bill as an acceptable compromise, and it enjoyed broad support – even among gun owners.
As the law was implemented, however, numerous problems began surfacing, and the proponents of stricter laws were immediately clamoring for more and more restrictions. The National Rifle Association became a reluctant and ill-prepared lobbying organization, as shooters and rights advocates demanded more organized resistance to the constant onslaught.
That resistance didn’t materialize in earnest until almost 10 years later, when fire-brand gun writer Neal Knox and a group of rights advocates staged a coup during the NRA Annual Meeting in Cincinnati, Ohio, in 1977. Operating under the organization’s long-ignored bylaws and New York not-for-profit corporation law (NRA is chartered in New York), the members fired key officers and put the NRA’s lobbying activities on an equal footing with its general operations.
That was a turning point for NRA, and Knox went on to lead an all-out political war on the GCA and the agency tasked with its enforcement, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF. This resulted in the largest membership boom in NRA’s history and, eventually, passage of the McClure – Volkmer Firearms Owners’ Protection Act.
The NRA’s efforts to defend gun rights were successful in the legislative sphere, but the organization found less success in the courts. On a couple of occasions over the years the NRA attempted to challenge gun laws in court and in most cases they lost – sometimes very badly.
But in 2004 a financially secure, libertarian minded attorney named Robert Levy joined forces with a brash and successful young litigator named Alan Gura. Together they began building a case to specifically force the Supreme Court to make a declaration on the meaning of the Second Amendment. They assembled a roster of sympathetic plaintiffs and meticulously put together a very narrow, very specific challenge to the virtual ban on functional handguns in the District of Columbia.
That case, DC v. Heller, was a resounding victory for the Second Amendment – though a narrow one with a Court split, 5-4. Gura, now with the backing of the Second Amendment Foundation and the Illinois State Rifle Association, already had a follow-up case in the wings with a challenge to Chicago’s handgun ban. To win, the Court would have to agree that the Second Amendment is enforceable against state and local governments. By another 5-4 decision Gura and company won McDonald v. Chicago and opened the door to challenges against state and local gun laws around the country.
The Second Amendment Foundation and Gura, with the cooperation of local grassroots groups, are currently challenging laws and regulations in California, Illinois, New York, New Jersey, D.C., Maryland, North Carolina, Texas, Ohio and at the federal level. They have also enjoyed numerous other victories employing a careful, piece-by-piece strategy for reclaiming the Second Amendment.
Meanwhile the rights movement is growing and dispersing with more people involved in more organizations working on more principle-based legislation than ever before. Litigation is important, and having a big dog like NRA on the job in D.C. is important too, but elections, legislation and ultimately liberty are in the hands of the grassroots gun-rights movement. The Firearms Coalition and I are proud to be deeply involved in that movement and invite every lover of freedom to participate.