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Overview: America's Gun and Violence Crisis; And: How the 2nd Amendment Got Hijacked by the NRA and Antonin Scalia

Don Hazen introduces our ongoing series on gun violence and the NRA; Steven Rosenfeld exposes the commandeering of the Second Amendment.

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How the Second Amendment Was Hijacked by Antonin Scalia and the NRA

By Steven Rosenfeld

In conservative circles, Supreme Court Justice Antonin Scalia is not just considered a “rock star,” as the New Yorker put it in a 2005 profile. He's a guitar-smashing rock star, because of his blunt speaking style and withering barbs aimed at critics and ideological opponents—especially liberals. 

Scalia, the outspoken law professor who helped create the right-wing Federalist Society, served in the Nixon administration, and was nominated to the federal bench by Ronald Reagan in 1984 and the U.S. Supreme Court in 1986, has always given speeches about his beliefs. In 1997, he boasted to conservatives that, “I am now something of a dodo bird among jurists and legal scholars,” explaining that he was an “originalist” who ignored modernity when it came to interpreting the U.S. Constitution. “You can fire a cannon in the faculty lounge of any major law school and not strike an originalist.”

Eleven years later in June 2008, Scalia was the lead author in a Supreme Court decision that arguably is the most audacious revision of constitutional doctrine so far in the 21st century -- revealing that he was anything but an originalist. In District of Columbia v. Heller, by a five-to-four vote, the Court held that the Constitution’s Second Amendment includes the right of individuals to own a gun at home for self-defense.

Scalia is now the longest-serving justice. He took office on September 26, 1986, the very day that Chief Justice Warren Burger, a conservative Nixon appointee also known for literal readings of the Constitution, stepped down after 17 years on the Court. But when it came to the Second Amendment, Burger was the originalist. And not long into his retirement, he became appalled that the National Rifle Association was touting an interpretation that didn’t exist in the Constitution—that Americans had gun rights as individuals.

The Second Amendment reads, “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."

Burger became so upset about the NRA line—enshrined at the highest levels of American law by Scalia 13 years after Burger died—that the retired Chief Justice debunked it in a January 1990 article in Parade magazine, distributed in Sunday newspapers nationally. He began by citing the latest facts, 9,000 murders by handguns nationwide, recounted American history and concluded with the Constitution’s Preamble, to “ensure domestic tranquility” allowed for new federal gun controls “if we are to stop this mindless homicidal carnage.” He said handguns should be regulated anew.

Burger, no liberal, went further. He told PBS in late 1991 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.”

When Gun Controls Were The Status Quo

Burger reflected what America’s mainstream legal circles believed for most of the 20th century. That view was based on knowledge of American history, in which the nation’s states and territories enacted a range of gun controls—including laws that today’s NRA fight with abolitionist zeal. And during the 20th century, Burger, like his predecessors on the Court, supported federal gun regulations as a means of fighting violent crime. Congress also supported federal gun controls from the Depression Era of the 1930s until mid-1980s, when they reversed course and started loosening them in Ronald Reagan’s presidency.

How did Warren Burger’s Constitution morph into Antonin Scalia’s Constitution? The short answer is a small team of libertarian lawyers, who shared the modern NRA’s belief that gun rights are the heart of American freedom but were more aggressive and eager than the NRA to bring a test case to the Supreme Court. When they got there six years after they started, they unexpectedly found a receptive and influential Justice Scalia in the driver’s seat. In the March 2008 hearing over a suit challenging Washington, DC’s handgun ban, Scalia answered questions from other justices put to the libertarians—cutting them off, scripting their answers and replying for them. And then he wrote the majority opinion.

Liberals immediately criticized Scalia, who found that Washington, DC had overeached in its handgun ban because it would not allow residents to keep handguns at home for self-defense. But Scalia was careful in his activism. He gave the pro-gun lobby exactly what it long wanted: an expanded Second Amendment. But Heller left room for federal regulation of other guns, which today’s gun-control proponents and legal scholars say allows for a new generation of gun controls after the Newtown school shooting.

But Scalia was also severely criticized by outspoken right-wing jurists, such as federal appeals court judge Richard Posner, who called Scalia’s work “faux originalism” in a Federalist Society speech in Washington. Another well-known conservative federal judge, J. Harvie Wilkinson III, wrote the majority “press[ed] their political agenda.”  
There is a larger point beyond Scalia’s vanities and hypocrises that has relevance for the nation's emerging gun control debates. Starting in the mid-1970s and climaxing in Heller, the NRA has dominated this debate not just by touting a constitutional fraud—as Chief Justice Burger put it—and spending vast sums in political campaigns, but by deliberately avoiding the true history of gun rights and gun control laws in America.

What’s most striking and relevant about that history, which follows America’s founding, was how states embraced the very gun controls that today’s NRA religiously opposes and has unwound in recent decades. As the country awaits President Obama’s response to Newtown, it is more than a talking point to note that America always had extensive gun controls. What’s abnormal, as Warren Burger noted, is the recent libertarian-dominated deregulation of guns at the expense of genuine public safety.  

“The two ideas—the right to bear arms and gun control—are not mutually exclusive,” wrote UCLA’s Adam Winkler in his 2011 book, Gunfight: The Battle Over The Right To Bear Arms in America. “In fact, America has always had both.”

The Original Second Amendment

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