This week, the mayor of the city of Pittsburgh signed a local ordinance, drafted in response to the massacre last fall at the Tree Of Life synagogue, that would ban use of AK-47s and other large-capacity firearms within the city limits, and allow authorities to pursue court orders to disarm persons determined to be an “extreme risk” to themselves or others.
Instantly, the NRA sued to block these measures, consistent with its relentless stance that the right to own and brandish firearms— any firearms, anywhere — is an inviolable individual right guaranteed by the U.S. Constitution. Pro-gun protesters, under the influence of this received dogma, marched in the streets of Pittsburgh, toting their newly-forbidden weaponry and shouting “we will not comply!”
There are procedural as well as constitutional problems with a city purporting to pass gun control measures of this kind, but the fundamental locus of this conflict is the absolutist right-wing narrative about gun rights, which decries any infringement of gun ownership, even on the most rational and limited basis, as a violation of the Second Amendment and a step down the oft-invoked slippery slope that ends in the presumed horror of a unarmed citizenry.
How did this constitutional narrative about guns become embedded in our cultural mythos? One imagines that the uniquely American notion of rugged individualism and our origins as frontier settlers (or, if you will, displacers of indigenous peoples) had a lot to do with it. But we mustn’t forget that the current interpretation of the Second Amendment as a guarantee of an individual right to own and operate firearms is a relatively new one, and that for most of our nation’s history, the Second Amendment figured almost not at all.
The NRA can sue Pittsburgh because, in 2008, the Supreme Court, in a 5-to-4 decision, handed down its opinion in District of Columbia v. Heller, discussed here shortly after it was issued. The majority opinion in that case was written by the late Justice Antonin Scalia, and represents his most lasting and pernicious legacy. Heller marks the triumph of an agenda diligently pursued by the NRA and the originalist mavens of the Federalist Society. But more importantly, it also marks the culmination of a relatively recent sea-change in the way the Second Amendment was understood by Americans, and in the way we think about the Constitution itself.
The constitutional question, raised in Heller by a D.C. law that required trigger locks for stored handguns and banned what we now call “open carry” of handguns, was whether the Second Amendment’s rather disjointed language — “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” — confers an irreducible individual right akin to the right of speech contained in the First Amendment, or is intended to preserve the possibility of forming a militia when necessary, and hence is a “collective” right linked to military service.
Scalia’s approach in Heller is that of a finicky linguist (does the “prefatory clause” limit the “operative clause”; is the phrase “bear arms” idiomatic or literal?), rather than that of a judge rendering an opinion that will directly affect — lethally — the life of a society. But the result was sweeping. The ruling struck down D.C.’s gun law to the root. None of it survived, not even the trigger lock requirement, on the unsupported ground that the Second Amendment requires not only that handguns be available, but that they be available for “immediate” use.
Scalia’s opinion in Heller effectively overruled two Supreme Court precedents, and in so doing contradicted long-established understandings of the Second Amendment. In 1876, the Court ruled that “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.” In 1939, the Court ruled that the Second Amendment did not protect ownership of types of weapons not having a “reasonable relationship to the preservation or efficiency of a well-regulated militia.”
Despite its originalist drag, Heller was in this sense as aggressive a case of judicial activism — anathema to conservatives — as Roe v. Wade. But unlike Roe, which appears to be in jeopardy of reversal in the not-distant future, Heller has likely been cemented into the Court’s precedents for at least a generation to come by the appointments of two additional conservative justices who are avowed admirers of Scalia, Neil Gorsuch and Bret Kavanaugh. Such are the consequences of presidential elections.
In her remarkable history of the United States, These Truths, Harvard professor Jill Lepore reminds us that after the assassination of John Kennedy, the NRA supported a ban on gun sales by mail-order, and later supported the 1968 Gun Control Act, passed after the assassinations of Martin Luther King and Bobby Kennedy in a single year, which restricted “high-risk” persons from buying guns, and prohibited the importation of military firearms. The NRA was in those days a sportsman’s club, not a right-wing political organization; it wouldn’t form a lobbying arm until 1975. Ronald Reagan, patron saint of conservatives, had supported gun control measures as governor of California. Even Richard Nixon, who famously waged a war on drugs, declared guns “an abomination,” and urged a ban on handguns, saying “I don’t know why any individual should have a right to have a revolver in his house.”
How far we’ve come – or fallen. Lepore succinctly describes the arc of this decline:
The idea that the Second Amendment guarantees an individual’s right to carry a gun, rather than the people’s right to form armed militias to provide for the common defense, became the official position of the NRA only in the 1970s, and only after a struggle not unlike the contest over abortion among the leaders of the Republican National Committee. Part of the backlash against both feminism and civil rights, gun rights became a conservative political movement, a rights fight for white men.
….Both reproductive rights and gun rights arguments rest on weak constitutional foundations; their very shakiness is what makes them so useful for partisan purposes: gains seem always in danger of being lost.
In 1986, the Senate Judiciary Committee, then chaired by Orrin Hatch, issued a report written largely by NRA-backed lawyers called The Right to Keep and Bear Arms, which purported to discover that the Second Amendment had been misinterpreted for two centuries, and rather than merely providing the right of the people to form armed militias, conferred on individual citizens the right to keep and carry arms for their own purposes. This was greeted by constitutional scholars at the time with a mixture of incredulity and amusement. Lepore recounts how, in 1991, Warren Burger, former Chief Justice of the Supreme Court, described the new interpretation of the Second Amendment as “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American people by special interest groups that I have ever seen in my lifetime.”
Yet somehow this interpretation has become a centerpiece of conservative ideology, and weapons that arch-conservative Richard Nixon called “an abomination” have become emblems of liberty. Again, from These Truths:
It was, indeed, breathtaking. In a few short, violent years, guns became for conservatives what abortion had become for liberals: an emotionally-charged matter of a constitutionally-guaranteed, individual right with which party operatives could reliably get voters to the polls because, in fact, the constitutional guarantee was no guarantee at all.
Much as we might like to, we cannot look to the Constitution for answers to the most vexing moral questions of our time. Those answers remain, as the men who wrote it surely believed, the province of the people, and if we can begin to relieve ourselves of the modern constitutional mythology of gun rights, sensible regulation of gun ownership and use might begin to be the norm in America, rather than the perpetually embattled exception.