First Freedom Page 27
As we’ve seen, the debate over the Second Amendment centered on who controlled the militias, the federal or state governments. Everyone understood that a militia consisted of free individuals who would almost always grab their own firearms—the ones they used in their everyday existence—to engage in a concerted effort to protect themselves, their community, or their country . . . sometimes from their own government. Many colonies enshrined an individual’s right to bear arms in their own constitutions before the Bill of Rights was even written—most of them in much more explicit terms.
Not even the British, whose attempts to disarm Americans had sparked a rebellion, would ever challenge the underlying belief that self-defense was an individual right. “The right of self defense is the first law of nature,” wrote George Tucker in the 1803 Blackstone’s Commentaries regarding the American Second Amendment. “In most governments it has been the study of rulers to confine this right within the narrowest possible limits . . . and [when] the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”1
During the nineteenth century, there was still no need to debate whether the Second Amendment was an individual right. Again, before the mid-1900s the right of an individual to bear arms had been so self-evident that on the rare occasions it was mentioned it was brought up to compare American liberty with tyranny elsewhere. In an 1823 letter to John Adams, William H. Sumner, politician and general in the Massachusetts militia, noted that if the population of the United States “like that of Europe, chiefly consisted of an unarmed peasantry,” it would be conquerable. “Here,” he went on, “every house is a castle, and every man a soldier. Arms are in every hand, confidence in every mind, and courage in every heart. It depends upon its own will, and not upon the force of the enemy, whether such a country shall ever be conquered.”2 Adams concurred with this thinking. An armed citizenry would not be susceptible to tyranny.
“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers,” wrote Joseph Story, an associate Supreme Court justice in the early 1800s, “and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
Contemporary liberals often view this form of rhetoric against the government as an endorsement of treason. Of course, despite our many political fights, there is no need for armed insurrection today. What sneering contemporary critics fail to comprehend is that the founding generation believed those who would undermine the universal and inalienable liberties of the people laid out in the Constitution—whether they were in the government or not—are the ones committing sedition.
During the 1800s, firearm innovation and fascination allowed Americans to explore, tame, and ultimately populate the West. This project, with all its moral implications, both admirable and sometimes ugly, made the United States the most powerful economic power on earth. Meanwhile, a number of municipalities in the West passed local gun ordinances. Not one of these regulations ever challenged the idea of a man’s right to own a firearm. Nor would the right to bear arms be challenged during the Civil War era, when manufacturing capacity and industrialization of the Union—spurred in part by gun innovators like Hall and Colt—helped create an infrastructure of superior armaments and technology that defeated the Confederacy.
It should be stressed that not all Americans benefited equally from the right to defend themselves—at least, not until the second half of the twentieth century. The early Americans denied both Catholics and other intolerable Christian denominations their right to self-defense. Black Americans would be denied these rights for centuries longer. Frederick Douglass reacted to the Fugitive Slave Act of 1850 by editorializing that the best remedy might be “a good revolver, a steady hand, and a determination to shoot down any man attempting to kidnap.” (Would any modern gun control advocate contend his was a treasonous statement?) Even after the Civil War was won, blacks still struggled to have their liberties protected. Most of the first gun controls, in fact, were racist in intent. In 1834 the state of Tennessee revised its Constitution from “That the freemen of this State have a right to keep and to bear arms for their common defence” to “That the free white men of this State have a right to keep and to bear arms for their common defence.”3 A number of southern states followed suit.
By the first post–Civil War election in 1868, some southern blacks had begun to arm themselves. In one incident in Tennessee, a black man fought off a mob of terrorizing Klansmen who dragged him from his house by brandishing his gun. “I prevented [one of them] by my pistol, which I cocked, and he jumped back,” the man explained. “I told them I would hurt them if they got away. They did not burn nor steal anything, nor hurt me.” These kinds of events were the exception to the population that was often left helpless. Soon “Black Codes” were instituted that made owning guns illegal for most blacks and continued to put them at the mercy of racist governments.
When Jacob Howard, the Michigan senator, introduced the Fourteenth Amendment to ensure that blacks in the South had their constitutional rights protected, he noted that “the personal rights guaranteed and secured by the first eight amendment to the Constitution” as in the freedom of speech and of the press and “the right to bear arms,” specifically (emphasis mine).4 The late nineteenth-century civil rights leader Ida B. Wells noted that one of the lessons of post–Civil War America and “which every Afro American should ponder well, is that a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.”5 T. Thomas Fortune, another black civil rights activist of the era, argued that it was with a Winchester that the black man could “defend his home and children and wife.”6 Although most of the founders certainly did not intend for the Second Amendment to protect all men, these civil rights leaders understood natural law better than most. More than a century after the Constitution was written, most discussion regarded the right to bear arms as a means to counteract internal tyranny and the threat of invasion.
As we’ve seen, during the 1900s—specifically in the 1930s and later 1960s—gun control advocates made headway in both gun control and rewriting history. But by the late 1970s the previously unnecessary Second Amendment activists would join social and fiscal conservatives as an emerging conservative majority in the 1980s. Congress would even pass the Firearm Owners Protection Act of 1986, which reined in the rogue ATF from harassing gun dealers and forbade the federal government from creating a national registry. (An amendment to the law, however, also banned civilian ownership of fully automatic guns manufactured after May 19, 1986. Owning one that was made before that date now requires federal registration and an extensive background check.)
Those gains proved to be short-lived. Bill Clinton would be the first president in American history to openly and actively seek to constrain gun sales to civilians and regulate ownership. He later claimed to regret this effort for political reasons, but in 1993, Clinton signed the Brady Bill—named after James Brady, the White House press secretary who was shot by John Hinckley Jr. in 1981 with a “Saturday Night Special” (popular slang for a cheap handgun) during an attempt to assassinate President Ronald Reagan. In the aftermath of the murder attempt, Brady and his wife, Sarah, would become leading gun control advocates through the Brady Campaign. (The organization had begun as the more honest National Council to Control Handguns in 1974, then Handgun Control, Inc., and finally the Brady Campaign to Prevent Gun Violence.) The Brady Bill included a slew of regulations and taxes, but its most consequential regulation would be the “waiting period.” A prospective gun buyer would have to wait five business days while the authorities checked on his or her background, during which time the sale would be approved or prohibited based on an established set of criteria.7
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nbsp; As many saw it, the law, with its many procedures, had finally transformed a right guaranteed by the Constitution into a privilege, like driving. For the first time, law-abiding American citizens were impelled to ask the state for permission to buy a firearm. The NRA challenged the law on Tenth Amendment grounds. In 1997 the Supreme Court ruled that the provision of the Brady Act that forced state and local law enforcement officials to run background checks was unconstitutional. Checks would eventually occur federally through a new system called the National Instant Criminal Background Check. All the background checks would be immediately destroyed, because federal law still prohibited the creation of a national registry.
Democrats, however, weren’t done. A year later they passed the Violent Crime Control and Law Enforcement Act of 1994, or what would more commonly become known as the “assault weapon ban.” A truly silly law born of a campaign of scaremongering, the ten-year federal ban on the manufacture of new semiautomatic assault weapons had everything to do with the cosmetics of guns yet was ignorant of how they actually worked. Gun features that frightened non–gun owners, like collapsible stocks, pistol grips, bayonet mounts, and flash suppressors, were banned. Manufacturers found ways around these strictures, and the ban did nothing to mitigate violence, since the majority of gun homicides were executed using handguns. So when the ten-year sunset provision of the assault weapons ban ran its course, the law was not renewed by a Republican Congress—without much protest from Democrats.
Around the same time the NRA was gaining political clout, policy wonks and legal minds began laying the groundwork for reclaiming the Second Amendment. In 1983 the Michigan Law Review published “Handgun Prohibition and the Original Meaning of the Second Amendment” by Don Kates, a Yale Law School graduate who had worked with William Kunstler during the civil rights movement.8 The paper, a meticulous refutation of collective rights theory, hastened a flood of new scholarship in libertarian and conservative circles. Kates’s ideas even began gaining some traction with liberal academics—most notably with the highly respected Laurence Tribe—creating a momentum that resulted in a political movement, and ultimately, a challenge in the federal courts.9
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In 1991, former Supreme Court chief justice Warren Burger was telling reporters that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” Originalism, the judicial interpretation that follows closely the original intentions of the Constitution, was anathema to many, but nothing seemed to be more grating to its opponents than the argument for the individual right of gun ownership.
Burger was correct, but not in the way he imagined. It would take one case to create an opening to prove him wrong. It came in 1998, when a doctor named Timothy Joe Emerson was in the midst of an acrimonious divorce. His wife requested a restraining order against him from a Texas court. Like many Texans, Emerson had been collecting guns for years and legally owned around thirty firearms of various types. His wife told the police that Emerson had threatened to use one of his pistols, a 9-millimeter Beretta that he kept in his office. What Emerson didn’t know was that federal law forbade anyone under a domestic restraining order from possessing any firearms. He was arrested. Emerson’s court-appointed lawyer argued, perhaps unaware of the dearth of Second Amendment cases or the history he was making, that without any judicial finding that his client posed a danger to his wife, Emerson still had a constitutional right to own a gun. To the surprise of many, the Fifth Circuit found that the Second Amendment “protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.”
While government lawyers looked at the panel’s ruling before deciding whether to appeal to the Supreme Court (they did, although the court did not take it up), then attorney general John Ashcroft was asked to clarify his position on the Second Amendment. While not specifically mentioning the Emerson case, Ashcroft wrote that he “unequivocally” believed the original intent of the Second Amendment was to protect the right of individuals to arm themselves. Just as the First and Fourth Amendments secure individual rights of speech and security respectively, “the Second Amendment protects an individual right to keep and bear arms,” he wrote. This was a dramatic about-face from the Clinton administration. A 2001 Boston Globe article noted that courts had been treating the Second Amendment as “a relic of the American Revolution.”
The Emerson decision also sparked the interest of a number of libertarian think tank legal scholars, including Clark M. Neily, Steve Simpson, and Robert Levy (and soon a private-sector lawyer, Alan Gura). Levy, a wealthy software designer, had entered the George Mason University School of Law at the age of fifty and exited as valedictorian. After two clerkships with federal judges, he became a policy wonk at the Cato Institute in Washington. By his own admission, his interest in Second Amendment law was purely idealistic. Levy had never personally owned a gun.10 Soon a number of other idealistic lawyers, almost none of them gun enthusiasts, began plotting their case. And everyone knew the best place to start would be in the nation’s capital, where federal law not only prohibited almost every citizen from owning a handgun but compelled those who did own rifles and shotguns to keep them unloaded and disassembled or bound by a trigger lock, making them useless as a means of self-defense.
The lawsuit they were devising featured a diverse group of Americans as plaintiffs. One of the first to sign on was an African-American Capitol Hill resident named Shelly Parker. Fed up with the crime near her home, Parker attempted to clean up the neighborhood, provoking the ire of local drug dealers, who began vandalizing her property and threatening her life. In Washington, DC, however, if Parker obtained a gun to protect herself, she would be arrested. “In the event that someone does get in my home,” she explained, “I would have no defense, except maybe throw my paper towels at them.”
The suit—and others like it—moved slowly through the court system. Adding to the complexity of the situation was that the National Rifle Association, now the leading gun rights organization in the country, believed that bringing a Second Amendment case to higher courts could backfire and undermine gun rights by enshrining the collective rights theory. The libertarian contingent didn’t believe this would be the case after Emerson. Moreover, hadn’t lower courts already been functioning under this idea anyway? How could it get worse? The NRA attempted to consolidate cases. It sued the more formidable Department of Justice, wrongly believing that Ashcroft’s statement on the Second Amendment might dissuade it from taking the case. Levy and his team concentrated on the less formidable Washington, DC, court and a direct challenge on Second Amendment grounds.
In February 2003, the six plaintiffs filed a lawsuit in the District Court for the District of Columbia challenging the constitutionality of the Firearms Control Regulations Act of 1975. The case was first dismissed by the judge, but a three-judge panel of the U.S. Court of Appeals for the District of Columbia reversed that dismissal in a 2–1 decision. Only one of the plaintiffs had standing, and his name, Dick Heller, would become synonymous with the originalist interpretation of the Second Amendment.
Heller was a security guard at the Federal Judicial Center. While District of Columbia laws allowed “special police officers” like Heller to carry handguns to protect government employees, they were not allowed to take those guns home and protect themselves, their families, or their homes. For a long time, Heller had found this inequitable. In July 2002, at the urging of a prescient friend, Heller attempted to register his revolver with the Metropolitan Police Department. He was instantly rejected. It would, no doubt, have struck the authors of the Federalist Papers as outlandish, if not authoritarian, to demand a citizen get a gun permit to have standing in a case over his constitutional rights. Yet, due to Heller’s seemingly innocuous act, the Court of Appeals was able to strike down provis
ions that banned citizens from owning firearms in their homes. The court held that the Second Amendment protected “an individual right to keep and bear arms,” and that such a right “existed prior to the formation of the new government under the Constitution.” In addition to sport shooting and self-defense, the right to own a gun, the majority wrote, should be “understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).”
Washington’s then mayor, Adrian Fenty, immediately denounced the decision, as did a number of congressmen and law enforcement agencies, calling it “unconscionable” and claiming, “It flies in the face of laws that have helped decrease gun violence in the District of Columbia.” Fenty provided no evidence for his claim, nor did it matter very much when it came to the constitutionality of Washington’s ban. In April 2007, Fenty petitioned for rehearing en banc, and on November 20 of that year, the U.S. Supreme Court agreed to hear the case.
District of Columbia v. Heller was a landmark case, invalidating a federal law that prohibited owning a handgun and, at least for now, enshrining the Second Amendment as an individual right. Justice Antonin Scalia, writing for the majority, offered a historical, philosophical, and legal exposition of the history of the Second Amendment. “Putting all of these textual elements together,” he wrote, “we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”
Just as the First Amendment protects modern communication and just as the Fourth Amendment applies to modern forms of search, the Second Amendment extends to guns that “were not in existence at the time of the founding.” Despite the many hyperbolic responses to the decision, Scalia did not offer a maximalist position. It is, he also wrote, “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”