Sep 1 1996

How the NRA Rewrote the Constitution

On Second Amendment, Reporters Side With Gun Lobby Against Supreme Court

Extra! September/October 1996: How the Gun Lobby Rewrote the ConstitutionOn April 5, 1996, the United States Court of Appeals for the Ninth Circuit handed down its ruling in Hickman v. City of Los Angeles. Ray Hickman had argued that the Second Amendment to the U.S. Constitution gave him a right to keep and bear firearms, and that this right was infringed by the city’s refusal to issue him a permit to carry a concealed weapon. The Ninth Circuit rejected Hickman’s claim: “We follow our sister circuits in holding that the Second Amendment is a right held by the states,” the court said, “and does not protect the possession of a weapon by a private citizen.”

The Hickman case is the most recent in an unbroken chain of federal decisions, spanning 60 years, ruling that the Second Amendment does not confer an individual right to possess firearms. Courts have consistently held that the amendment’s 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”–only gives the states the right to maintain well-regulated militias, which since 1903 have taken the form of the National Guard.

Despite this clear legal history, the National Rifle Association for years has advanced the view that the amendment provides a fundamental right to private gun ownership that cannot be abridged by the passage of guncontrol laws. Despite its efforts, the NRA’s interpretation of the Second Amendment has never passed constitutional muster in the courts; the group has litigated and funded several Second Amendment cases in federal courts, but has never won any.

Still, the NRA has managed to dominate political and journalistic discussions of the Second Amendment. While the NRA’s interpretation of the Second Amendment is repeatedly cited in newspapers and on TV, the federal judiciary gets virtually no coverage of its definitive and binding rulings. News media coverage of the Hickman case is instructive: There was hardly any. Even though the decision is one of the most important in recent years on the Second Amendment, it went unreported in the New York Times, nor was it mentioned in the networks’ evening newscasts.

The Second Amendment in Court

Modern jurisprudence on the Second Amendment is founded on United States v. Miller, a 1939 Supreme Court case concerning a person convicted for carrying a sawed-off shotgun across state lines in violation of a 1934 federal law. The defendant argued in lower courts that the restraint on firearms violated his Second Amendment right to keep and bear arms. The Supreme Court upheld the conviction, ruling that the Second Amendment offers no constitutional protection for individual ownership or purchase of a firearm, unless related “to the preservation or efficiency of a well-regulated [state] militia.”

Every federal court since 1939 to hear a Second Amendment case has upheld Miller, despite repeated challenges over the years by gun-rights advocates. Brief excerpts from a few of many such cases since Miller illustrate the clear consensus in the federal judiciary on the Second Amendment’s meaning:

“Since the Second Amendment right ‘to keep and bear arms’ applies only to the right of the state to maintain a militia, and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm,” the Sixth Court of Appeals ruled in 1971 (Stevens v. United States).

“These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties…. The Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated Militia,'” the Supreme Court reiterated in 1980 (Lewis v. United States).

The Hickman case decided this year followed these and dozens of other clear-cut precedents. “This case turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment,” the appeals court stated in its unanimous decision. “We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court…. Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show injury when this right is infringed.”

The NRA’s failed efforts to get any federal court to take seriously its claim that there is an individual right to own firearms under the Second Amendment do not seem to have damaged the group’s credibility in the news media. Indeed, the NRA has a virtual monopoly in news reports concerning the gun movement’s fundamental issue–the Second Amendment.

The public’s right to know the judicial consensus on the Second Amendment is clearly at issue, since the federal courts, not the NRA, have the constitutional authority to define the legal reach of the amendment and its role in blocking or permitting gun-control legislation.

The Second Amendment and the ’94 Campaign

Although a few editorials, op-ed columns and news reports have cited the judicial consensus on the Second Amendment, these mentions are rare exceptions rather than the rule. The Los Angeles Times, the Atlanta Journal and Constitution and USA Today have provided the most conscientious editorials and reports. The vast majority of editorials and news articles, however, are situated in a context that explicitly or implicitly accepts the NRA’s view of the Second Amendment. Once established without challenge, this view is often presented as, or assumed to be, a formidable obstacle to gun-control laws, or to electoral candidates on the wrong side of the NRA’s influence.

A case in point is the coverage of the NRA’s role in the 1994 congressional elections, when the group was active in scores of districts. The NRA had taken much of the credit for the 1993 electoral defeat of New Jersey Gov. Jim Florio, a vigorous guncontrol advocate, and announced shortly thereafter that it would target congressional races to get gun-control opponents elected to the U.S. Congress. Subsequently, reporters covering these elections continually repeated NRA claims, or the claims of NRA-backed candidates, that gun control violated a fundamental constitutional right of individuals to keep and bear arms.

The New York Times, for example, ran two articles on the NRA and the 1994 congressional elections. On September 12, 1994, the Times covered a congressional race between an NRA-backed Republican congressmember in San Antonio, Henry Bonilla, who had voted against the assault weapons ban, and his challenger, Democrat Rolando Rios, whose support for the ban was the focus of his campaign to unseat Bonilla. Gun control was a major issue in the San Antonio race. There were more than 1,200 drive-by shootings there in 1993, one of which killed a four-year-old boy.

Even though San Antonio residents were outraged by the “random carnage,” Rios’ campaign aide initially discouraged his candidate’s concern with gun control in a Texas race, since, according to one consultant quoted in the article, “It makes no sense for any Texas Congressional candidate to be seen as an opponent of the Second Amendment…. Knocking Second Amendment rights around here is the kiss of death.”

Times reporter Katharine Q. Seelye made no effort to clarify the record regarding “Second Amendment rights.” Seelye reported that Rios “tried to distinguish between his opposition to assault weapons and his support for hunters’ rights,” but offered nothing to balance the misleading premise that the Second Amendment stands as a constitutional barrier to guncontrol laws.

A “Tough” Capitulation

Bob Kerrey political ad, 1994

Bob Kerrey demonstrating his support for “the constitutional right to bear arms.”

On Oct. 26, 1994, the Times carried a news report by Robin Toner on the NRA and the elections. This time, the focus was on the accuracy of NRA TV ads targeting two Democratic Senate incumbents, Sen. Bob Kerrey of Nebraska and Sen. Richard Bryan of Nevada, both of whom voted for the assault weapons ban.

Toner quoted NRA executive Tanya Metaksa as saying that the purpose of the NRA’s efforts to defeat congressional supporters of the ban was to defend “freedom and the rights of law-abiding Americans to own guns.” Toner then quoted an NRA ad targeting Kerrey, in which NRA spokesperson Charlton Heston addressed Kerrey on TV: “You said you wouldn’t vote for gun bans. But you went to Washington and voted for the first federal gun ban in American history.”

In response, Kerrey ran his own TV commercial, where, according to Toner, Kerrey is “dressed in hunting garb, as he fires at a clay pigeon.” Kerrey then qualified his support for the gun ban by stating: “I’m a hunter, and I believe in the constitutional right to bear arms.”

In a sidebar to the article, where Toner was supposed to check the veracity of both TV ads, she characterized Kerrey’s rebuttal to Heston as “a tough response to a tough attack: Kerrey deals head-on with the charge that his support for the ban was a sellout of Nebraska hunters and gun owners.” Not only did Toner fail to question Kerrey’s assertion of a “constitutional right to bear arms,” but she characterizes Kerrey’s confusion on the Second Amendment as “tough.”

Sen. Bryan’s response to the NRA attack ad was similar to Kerrey’s. Toner described Bryan’s TV spot, in which his vote for the assault weapons ban was “defended by a local law-enforcement official–and an N.R.A. member: ‘Dick Bryan is a strong supporter of our right to bear arms,’ the official says.”

Supreme Court Too Extreme?

Most journalists seem to feel no need to balance the NRA’s constitutional claims. In a September 1994 cover story on the NRA for the New York Times Magazine (9/11/94), two months before the ’94 elections, writer Philip Weiss quotes NRA officials without rebuttal on the Second Amendment:

  • NRA leader Wayne LaPierre on gun ownership: “It’s a birthright confirmed for us by the Constitution.”
  • The NRA’s Tanya Metaksa on guns: “[They’re] protected under the Bill of Rights of this country.”
  • Metaksa on the assault weapons ban: “We’re trying to draw a line in the sand by telling the American people that if you trash the Second Amendment you’re going to end up with a line in the sand that’s way over here. You’re going to have no way of defending yourself against a government that truly gets out of hand.”

The lack of information in the press about the judicial interpretation of the Second Amendment is perhaps not surprising: A survey conducted in 1995 by the pro-gun Second Amendment Foundation showed that 69 percent of journalists polled agreed with the NRA that the Second Amendment protects the individual right to own a firearm.

This is not to say that most journalists support the NRA’s anti-gun-control agenda. Most newspaper editorial pages supported passage of the Brady bill and the assault weapons ban. Many journalists apparently believe that an individual constitutional right to gun ownership exists under the Second Amendment, but see that right as subject to some reasonable regulation by the government.

This must seem to journalists like a safe and reasonable middle ground–between the “extremes” of the NRA and those who advocate comprehensive gun control. But staking out this position as the political center actually marginalizes the entire federal judiciary as too extreme to participate in the debate.

And there is no shortage of distinguished constitutional law scholars available to dispute the NRA’s Second Amendment claims, including Harvard’s Laurence Tribe, USC’s Erwin Chemerinsky and Dennis Henigan, legal director of the Center to Prevent Handgun Violence in Washington.

Winless pitchers and hitless hitters seldom make the big leagues. Why should serious journalists continue to print as presumptive truth the NRA’s view of the Second Amendment, when its record in the courts is no wins and all losses?

Howard Friel is editor of Aletheia Press, publisher of Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America (1996) and The Limits of Dissent: The Constitutional Status of Armed Civilian Militias (1996).


What Is a Militia, Anyway?

Norman Olsen of the 'Michigan Militia' (AP/John Flesher)

Media-identified “militia” member

Just as news media have been reluctant to challenge the constitutional claims of the N.R.A., some have also failed to question the claims of private paramilitary groups to be the “militias” whose right to bear arms is guaranteed by the Second Amendment.

While it’s been argued that the Second Amendment’s reference to “well-regulated militia” is ambiguous, the Constitution itself is quite explicit about what a militia is: Article 1, Section 8 gives Congress the power

to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; [and] to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

Article II, Section 2 makes the president the commander-in-chief of the militias when called into service of the United States–a fact that no doubt would dismay many self-proclaimed militia members.

Maryland Army National Guard (cc photo: Rick Brietenfeldt/MANG)

What the Constitution identifies as a militia

In Presser v. Illinois (1886), a case which is still good law today, the Supreme Court ruled that “citizens of the United States have no right to associate together to drill or parade with arms, independent of any act of Congress or state law.” In Vietnamese Fishermen v. Knights of the Ku Klux Klan (1982), a federal district court in Texas ruled, citing Presser, that “the Second Amendment does not imply any general constitutional right for individuals to bear arms or form private armies.”

The militias mandated in the Constitution have, since 1903, taken the form of the National Guard. While many so-called militia leaders claim to be constitutionalists, their reading of the Constitution is dubious: The constitutional militias were formed to execute federal laws and suppress insurrections; many latter-day militias advocate ignoring federal laws and preparing for insurrection.