This is the final part of a three-part series on gun control in the 20th Century based on “The Great Gun Control War of the 20th Century — And its Lessons for Gun Laws Today“ by David B. Kopel of the Sturm College of Law at Denver University. The first part of the series can be read here and the second here.
Despite setbacks in the mid-1980s, the gun control lobby stayed in the fight. Handgun Control, Inc. managed to recruit Sarah Brady, the wife of President Reagan’s press secretary James Brady, who was shot during a failed assassination attempt on the president. James Brady would later join her.
For gun grabbers the Bradys’ involvement signaled a small but important victory. As Kopel observed, the fact that they were Republicans “offered the possibility of taking the gun control message to the Republican establishment.”
The gun control lobby also made an important strategic move, shifting away from the handgun debate, which had yielded virtually no results, focusing instead on “assault rifles.” In 1987 memo, the Communications Director of the National Coalition to Ban Handguns, Josh Sugarmann wrote the following:
“The semi-automatic weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase that chance of public support for restrictions on these weapons.”
Their campaign got a boost a year later when a man murdered five school children in Stockton, Calif. with a Kalashnikov-style, semi-automatic rifle. With momentum shifting in their direction, gun control advocates finally hit pay dirt with the 1993 Brady Act. Rather than fight the bill outright, Kopel writes, the NRA focused its efforts on influencing the bill via amendments, such as requiring background checks on sales to lawful purchasers be destroyed and ensuring the handgun waiting period would expire in five years to be replaced by a different system.
Kopel concludes that the amendments helped make the ban “mostly about appearances,” and for those firearms actually affected, there were simply too many features for the ban to have any real impact.
“The generic definition focused on accessories such as bayonet lugs and adjustable stocks. So I observed that manufacturers simply removed the prohibited features, renamed the guns, and were soon selling firearms that in internal operation were operationally the same as the banned guns. On the other hand, the ban on new magazines over ten rounds was real. For some guns of recent vintage, I saw the price of grandfathered “high capacity” magazines increase tenfold. However, when one considers many of the older model guns on the list, such as the AR-15 (in production since the 1960s), I estimate that the world-wide inventory of ammunition magazines holding more than 10 rounds was probably in the tens or even hundreds of millions.” [Emphasis added]
Nevertheless, passage of the Brady Act’s galvanized gun rights activists and spurred them to action. In the 1994 elections the Democrats lost the House for the first time since 1953, a coup President Clinton himself attribute to the NRA. Every single Democrat incumbent endorsed by the NRA was re-elected.
As the political fight raged, a philosophical tug-o-war played out in the background. For all the victories achieved by the pro-gun rights movement, it was no thanks to any similar triumphs among pro-Second Amendment legal scholars. As it turned out, it was politically incorrect to even talk about the Second Amendment, let alone write about it.
Then in 1983, the Michigan Law Review published an article titled “Handgun Prohibition and the Original Meaning of the Second Amendment” Written by Don Kates, it was “only the third time in history that a top ten law review had published a serious article on the Second Amendment.”
Professor Sanford Levinson, a liberal who supported the individual right interpretation, later suggested the reason for the lack of discussion.
“The best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even ‘winning,’ interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.” [Emphasis added}
By the 1990s, Kates “standard model” interpretation was mainstream (the model views the Second Amendment as a normal individual right, but bounded by permissible controls.
But it also had its critics.
One of them was Garry Wills, who claimed that “the Second Amendment had no legal meaning, but was in fact a clever trick by James Madison, deliberately written so as to have no significant content,” according to Kopel.
He was not alone in this opinion. The American Bar Association (“ABA”) also held this position, claiming “It is doubtful that the founding fathers had any intent in mind with regard to [the] meaning of this amendment.”
This claim was indirectly, and perhaps unwittingly, contradicted when the Supreme Court declared in its United States v. Verdugo-Urquidez decision that the word “people” in the Bill of Rights had the same meaning in the First, Second, and Fourth Amendments. Constitutional scholars supporting the individual right saw the logical conclusion: according to the court, if a person had an individual right to free speech, the same applied to gun ownership rather than being a “collective right” enjoyed through a militia.
Slowly, the academic community began to catch up with public sentiment on guns.
Yet the political battle raged on. The 1994 Congressional election had been a setback for gun control groups. Shortly after Columbine, Kopel writes, Vice President Al Gore cast the tie-breaking vote in the U.S. Senate for an amendment to a bill that would have given the ATF the authority to shut down any and all gun shows in the United States.
Gore would go on to win the Democratic nomination for the 2000 presidential race, which Kopel described as “the great showdown on gun control.”
“Like the election of 1800 for the First Amendment, the 2000 election would decide the fate of the Second Amendment,” he writes.
During a Supreme Court case that year, Clinton’s Department of Justice claimed in front of the judges that the Second Amendment only applied to National Guardsmen. On top of that, Solicitor General Seth Waxman argued that “the Second Amendment does not extend an individual right to keep and bear arms,” that it “could ‘take guns away from the public,’ as well as ‘restrict ownership of rifles, pistols and shotguns from all people.’”
The backlash to these comments by the gun rights community was so intense, Kopel concludes that “If not for the gun issue, the election would not have been close.” George W. Bush ended up beating Gore in a controversial finish.
As with the 1994 Congressional election, President Clinton later wrote that the NRA yet again cost gun grabbers electoral success.
For the next decade shall issue concealed carry laws, rather than handgun bans, were passed throughout the country. In 2004, the federal “assault weapon” ban expired. The next year, the Protection of Lawful Commerce in Arms Act was passed, preventing municipal lawsuits against gun manufacturers. The Handgun Control Inc. had even changed its name to the “Brady Campaign to Prevent Gun Violence,” tacitly conceding the unpopularity of the term “gun control.”
The right to keep and bear arms was so popular that during the 2008 presidential primaries, Hillary Clinton declared that “people have a right to bear arms” and criticized Obama for his anti-gun stance, even though he too claimed to believe it was an individual right.
“None of this is to say that Schumer, Clinton, or Obama believed that the Second Amendment prevented the various gun control proposals that they supported.” Kopel writes. “But it was quite a change from 1988 when the Democratic Party could nominate a candidate who would forthrightly declare that there was no individual right”
The gun debate finally culminated in the landmark District of Columbia v. Heller decision, in which the Supreme Court voted 5-4 that the Second Amendment protects an individual’s right to possess a firearm.”
“The Great American Gun Control War lasted nearly a century, and the greatest national battles of all were fought in the last quarter of the twentieth century,” Kopel writes. “The results of that War are settled, and obvious: First, gun rights are no more “absolute” than are any other rights. Second, the most unconstitutional laws on guns are the laws which attempt to deprive law-abiding Americans of their right of armed self defense, and their choice of a proper firearm with which to exercise the right, or which attempt to limit self-defense solely to the home.”
A vital lesson from this gun control war is that the unless action is taken in the states themselves to nullify and resist unconstitutional federal gun laws, the threat will exist perpetually. Gun rights activists no doubt fought with the best of intentions and attempted to thwart gun grabbers at every turn, but their strategy demonstrated that despite victory after victory at a federal level, and even at a state level, the enemy eventually recuperates and makes another attempted assault on our right to keep and bear arms. The only way to neutralize the threat is by getting states to pass Second Amendment Preservation Acts.
Had such laws been passed from the very beginning when gun control war first began, we might not be having to fight it today.
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