One Does Not Bear Arms Against A Rabbit

How the gun lobby created the right to carry a gun

Gun violence and the wide availability of assault rifles are rightfully in the center of debate following last week’s massacre. We are an unusually armed country, with almost enough guns for every single person.

An important overview is offered by the nonprofit investigative news outfit Propublica and their “The Best Reporting on Guns in America.” Their summary introduces Jill Lepore’s New Yorker article “Battleground America” as “a primer for the modern day gun debate.” Opening with an account of the Chardon High School shooting in Cleveland, LePore continues with some statistics and carefully details the shift in the legal interpretation of the Second Amendment.

“The United States [has] the highest rate of civilian gun ownership in the world. (The second highest is Yemen, where the rate is nevertheless only half that of the U.S.),” reports Lepore. “No civilian population is more powerfully armed. Most Americans do not, however, own guns, because three-quarters of people with guns own two or more.”

Citing research, LePorre notes one in two households had guns in 1973, compared to one in three in 2010. “In 1980, nearly one in three Americans owned a gun; in 2010, that figure had dropped to one in five.”

It starts with the Second Amendment -- “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.”

As LePorre traces, the Articles of Confederation first called for the formation of militias with “public stores” of weapons in 1776. In 1787 the U.S. Constitution granted Congress the power “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” James Madison drafted the Second Amendment guaranteeing states the right to form militias to address concerns about a large, unchecked national army.

“One does not bear arms against a rabbit,” explained Pulitzer Prize-winning author Gary Willis arguing the Second Amendment should be read in a military context, not private gun ownership.

In 1871 the National Rifle Association was founded as a sport and hunting association. In the 1920s and 30s it supported waiting periods and backed the “1934 National Firearms Act—the first major federal gun-control legislation— and the 1938 Federal Firearms Act, which together created a licensing system for dealers and prohibitively taxed the private ownership of automatic weapons.”

Upholding the law unanimously in 1939, the Supreme Court agreed with the argument “that the Second Amendment is ‘restricted to the keeping and bearing of arms by the people collectively for their common defense and security.’”

The assassinations of President Kennedy, Bobby Kennedy and Martin Luther King led to a revised Gun Control Act in 1968, which “banned mail-order sales, restricted the purchase of guns by certain high-risk people (e.g., those with criminal records), and prohibited the importation of military-surplus firearms,” with the NRA’s qualified support.

Then things began to change. “If you had asked, in 1968, will we have the right to do with guns in 2012 what we can do now, no one, on either side, would have believed you,” David Keene told Le Porre. Current president of the National Rifle Association, Keene is the former chairman of the American Conservative Union.

The NRA’s extreme resistance to gun control is traced back to the 1977 “Cincinnati Revolt,” when conservatives led by former gun lobbyist Harlon Branson Carter took over at the annual convention, rewriting the organization’s bylaws.

“Reagan’s election, in 1980, made it possible for conservatives to begin turning a new interpretation of the Second Amendment into law,” writes LePorre. “As the legal scholar Reva B. Siegel has chronicled, Orrin Hatch became the chair of the Subcommittee on the Constitution, and commissioned a history of the Second Amendment, which resulted in a 1982 report, ‘The Right to Keep and Bear Arms.’

The authors of the report claimed to have discovered ‘clear—and long-lost—proof that the Second Amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms . . .’”

More than half of law review articles published between 1970 and 1989 favorable to the NRA were “written by lawyers who had been directly employed by or represented the N.R.A. or other gun-rights organizations,” according to constitutional-law scholar Carl Bogus. Former Chief Justice Warren Burger called this new interpretation of the Second Amendment “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.”

As concealed weapons and stand-your-ground laws spread, controls went the other way. “Between 1968 and 2012 . . . gun-control legislation was diluted, defeated, overturned, or allowed to expire,” continues LePorre, “and, in 2008, in District of Columbia v. Heller, the Supreme Court ruled, in a 5–4 decision, that the District’s 1975 Firearms Control Regulations Act was unconstitutional.”

Justice Scalia wrote, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.”

LePorre asked Keene if “any public atrocity had given him pause. He explained that it is the N.R.A.’s policy never to comment on a shooting.” Gun violence wounds or kills 100,000 Americans in an average year, the highest rate in the developed world.

posted at 05:11 pm
on Wednesday, December 19th, 2012

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