Can Obama Slay the NRA Beast?
Senate Majority Leader Harry Reid is no stranger to domestic violence. His father killed himself with a gunshot to his head more than four decades ago. And his state, Nevada, is no stranger as well. It’s had the nation’s highest rate of women killed by men—most by gunshots—during five of the past six years, the Violence Policy Center reported.
But in 2010—where Nevada had that bloody distinction for the third year in a row—Reid did the gun lobby a big favor. Pro-gun libertarians were saying that the president’s health care reforms would allow government to compile a registry of gun owners. Reid feared the rumors could derail the Patient Protection and Affordable Care Act. So on page 776 of the giant bill, he added lines barring doctors from gathering information on a patient’s guns or ammunition, and also barred insurers from charging higher rates to gun owners.
The National Rifle Association wanted the language, the Washington Post noted, which child health advocates and pediatricians noticed recently. Some were furious, asking how could they treat victims of violence if they could not ask about guns at home? Reid’s staff tried to spin it, saying he put it in because of insurance issues. But most of the language concerned limiting would-be gun registries, gun databases and data gathering.
“This illustrates the fact that the NRA has insinuated themselves into the small crevices of anything they can do in their power to prohibit sensible gun safety measures,” Denise Dowd, a Kansas City, Missouri, emergency care physician told the Post.
Insinuate is the right word. Since the early 1980s, a newly militant NRA has been at the forefront of finding, exploiting and nurturing cracks in state and federal gun controls—just as it has created and publicized an exaggerated view of Second Amendment rights. While its political successes are undeniable, it also has built a myth that it cannot be challenged—a myth that is starting to crumble in 2013’s emerging gun control debates.
Understanding how and what the gun lobby has accomplished is a prerequisite to unraveling its political influence and addressing gun violence—and assessing whether President Obama’s pending gun control reforms are likely to be effective.
A Long And Dark Shadow
It’s hard to believe that Reid’s staff didn’t know that the NRA and Republicans have put limits on the federal government’s abilities to collect, study and share gun-related crime data since 1996—part of a strategy to minimize informed public debate. But suppressing government and academic research on guns was only one part of the NRA playbook.
The gun lobby sponsored academics to write tilted Second Amendment analyses touting an individual’s gun rights while omitting America’s history of gun controls. They lobbied Congress and states to roll back as many gun laws as possible, or grant new privileges to gun owners, such as allowing concealed weapons in public. They donated to political campaigns—ramping up after horrific incidents such as 1999’s Columbine High School massacre—and were most successful when Republicans were in power.
As Dowd noted, they kept targeting and finessing the fine print of the law. Before the Newtown school shootings, they were the only group pushing the Justice Department to loosen rules letting non-citizens buy guns, which it did last June. And days before the Newtown shooting, the NRA was urging members to comment on a proposed DOJ regulation to allow the use of “armor-piercing” bullets for “sporting purposes.”
The modern gun lobby emerged in the late 1970s, after a libertarian faction led by Harlon Carter, a champion marksman and ex-federal Border Control Agency chief staged a coup inside the NRA and replaced a board of directors who wanted to focus on its historic hunting and marksmanship mission. (The NRA had supported gun control laws since its founding in 1871, but started having reservations in the late 1960s.) After the 1977 coup, Carter changed the NRA motto to an edited Second Amendment, “The Right of the People to Keep and Bear Arms Shall Not Be Infringed.” That reflected its new agenda: making exaggerated constitutional claims of gun rights—to push back on gun controls; and a view that government was the enemy of gun owners’ freedom.
The NRA saw its first big political openings under Ronald Reagan’s presidency. Reagan had championed state gun control laws when he was California’s governor in 1968—in response to that decade’s race-based violence and Black Panthers showing up with rifles at legislative hearings on proposed gun laws. But unlike Franklin Roosevelt, who was the target of a botched assassination attempt a month after taking office in 1933 and then backed the first federal firearms laws in 1934, Reagan survived an assassination attempt early in his first term in 1981 but would not call for new federal gun controls. He had been elected by a grassroots coalition that included the NRA’s new militant wing.
Today, pollsters will tell you that most Americans believe the Second Amendment grants individuals unfettered gun rights. But this wasn’t always the ‘conventional wisdom’ or a view held by legal scholars. The NRA worked for years to create this paradigm and had rightwing Republicans’ help. In 1982, the Senate Judiciary Committee’s Subcommittee on the Constitution, chaired by Utah’s Orinn Hatch, issued a report, “The Right To Keep and Bear Arms.” It claimed to find “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 in a peaceful manner, for protection of himself, his family, and his freedoms.”
That Second Amendment view was not shared by that era’s mainstream Republicans. But starting in the 1970s and through the 1980s, law review articles started appearing touting the NRA’s revisionist view. Two-thirds were written by lawyers who had worked for the NRA or gun groups, the New Yorker reported last April. These efforts were akin to the Tea Party in 2010—part of a leading edge within the GOP to push the party to the right. They succeeded: in 1986, Congress unwound federal gun controls for the first time.
That year’s Firearms Owners Protection Act created what is today called the ‘gun show loophole,’ by loosening restrictions on licensed dealers and unlicensed individuals selling guns at these shows by allowing ‘private sales.’ It also lowered barriers to interstate sales of guns and ammunition through the mail. Congress also loosened other aspects of federal law, such as banning the Bureau of Alcohol, Tobacco, Firearms and Explosives from searching gun dealers without a warrant, and barred the government from keeping a database of gun owners. Today, 40 percent of guns are bought at gun shows, according to Temple University’s David Kairys, including 80 percent used in crimes.
Right wingers got a big break in 1989, when a liberal law professor, Sandy Levinson, wrote a Yale Law Review article exploring the rhetorical question of why not take an expansive view of the Second Amendment—just as liberals took an expansive view of the First Amendment in the civil rights movement. Libertarian columnists such as George Will soon touted Levinson’s work as bolstering the NRA viewpoint.
These developments troubled some law-and-order conservatives, such as retired U.S. Supreme Court Chief Justice Warren Burger, who debunked the NRA’s Second Amendment claims in Parade magazine in 1990 and called for new federal gun controls—particularly for handguns and tracing gun ownership. In 1991, he told PBS’s NewsHour that the NRA’s constitutional claims were a “fraud.”
The call for more federal gun control was not acted upon until there was a Democrat in the White House: Bill Clinton. In late 1993, Congress passed the Brady Handgun Violence Prevention Act, expanding the system of background checks to buy a new gun and creating a five-day waiting period before picking it up. It was named for Reagan’s press secretary, who was hit in the 1981 assassination attempt and sustained permanent brain damage. Unlike during his presidency, Reagan supported the Brady bill.
And in September 1994, two months before midterm elections, the Democratic-majority Congress passed a federal assault weapons ban. That law was only in effect for a decade and not been renewed. (Today, it is seen as limited in scope because it only banned a few guns and was easily evaded.) In 1994 as today, the NRA would oppose any new federal gun controls; but the Clinton-era bills came at a particularly volatile time.
Toward the end of the 1992 presidential race and early in Clinton’s first term, the Justice Department was involved in two badly botched raids that played into the NRA’s worst fears about government infringement on gun rights. In the Ruby Ridge incident, snipers killed the wife and son of a separatist who was believed to have illegal weapons after a gunfight and siege in Idaho. And in Waco, Texas, a DOJ standoff with armed religious fundamentalists ended in a fire killing 76 followers, including children.
In 1994’s congressional elections, the NRA was part of the rightwing coalition that railed against federal government and the Clinton administration, and helped elect Republicans to their first House majority in a half-century. Clinton blamed the defeat on the gun laws, and ever since virtually any Democrat who was not personally exposed to gun violence has feared the NRA’s wrath. That appears to be changing after the Newtown shooting, as Democratic governors such as New York’s Andrew Cuomo have fast-tracked new gun controls and Congress is studying reforms, but barely two years ago in 2010, Nevada’s Reid added the gun research restrictions to the Obamacare bill—underscoring the gun lobby’s enduring power and influence.
The first restrictions on federal research on gun violence came soon after the GOP took control of the House in 1994. Two years later, House Republicans banned the Federal Centers for Disease Control and Prevention from studying links between gun use and violence. Before the ban, medical journals relying on federal research discussed studies that found people living in homes with guns faced a 2.7-fold increased risk of murder and 4.8-fold increased risk of suicide, compared to homes without guns.
The NRA wanted to steer political and scholarly debate away from the links between guns and violence and instead focus on gun ownership as an expression of constitutional freedom. Ironically, just as Reagan came around to support the Brady bill after he left the White House, former Republican Congressman Jay Dickey of Arkansas, who led the 1996 effort to stop federal gun research, last July wrote a Washington Post commentary regretting that effort and calling for the research to resume.
Today, many Americans were outraged that the NRA’s called for arming teachers after the Newtown massacre. But in 2001 after the 9/11 attacks, the NRA lobbied regulators to allow pilots to carry firearms—the same prescription. And during the George W. Bush administration, the NRA saw years of legislative victories—including more limits on releasing federal data on guns and shielding gun makers from lawsuits.
In 2003, the Tiahrt amendment, named after former Rep. Todd Tiahrt, R-KS, restricted the Bureau of Alcohol, Tobacco, Firearms and Explosives from releasing information on tracing guns used in crimes, making it harder to track illegal gun trafficking.
In 2005, Congress immunized the gun industry from liability in most lawsuits related to “criminal or unlawful misuse” of a gun. The law was the NRA-led response to suits by gun control groups that sought to have the manufacturers pay for the injuries caused by gun violence. “The law has not stopped gun litigation, but it has created an obstacle,” a Brady Center to Prevent Gun Violence spokesman told ProPublica.org this month.
In 2007, the gun lobby stopped new rules on storing explosives by the Occupational Safety and Health Administration (OSHA), saying gun store owners would be hard-pressed to meet them and that they would interfere with transporting and storing small arms ammunition. In July 2007, the NRA told members that OSHA halted its rule-making process due to their “strong opposition.”
That year, Congress appropriated funds for the Justice Department to grant to states to improve the background check system—which relies on states to send court records of various categories of banned people—felons, mentally ill, drug addicts, etc.— for the scrutiny envisioned in 1993’s Brady Bill. As AlterNet reported, only a dozen states now submit background check data to the DOJ—a low number in part due to a 1997 U.S. Supreme Court ruling that made state compliance with the law voluntary.
And late in 2008—one month before Barack Obama took office—the federal Fish and Wildlife Service issued new rules allowing gun owners to carry concealed weapons on federal parkland and forests in states with laws allowing concealed weapons. That rule covers most of the country. Before 1980, only five states allowed concealed weapons outside the home for personal protection. By 2008, more than 40 states passed laws allowing concealed weapons for self-defense. (Forty-three state constitutions grant individuals rights to use guns outside of the state militia reference in the federal Constitution’s Second Amendment.)
The NRA has seen states loosen gun controls or expand gun rights in recent decades. Most notable are so-called ‘Stand your ground’ laws, which exonerate citizens who use deadly force when confronted by an assailant. Florida was first to pass this law in 2005, followed by two-dozen other states since then. Trayvon Martin’s death in Florida in February 2012 became national news after his killer cited the law in his defense.
Florida has also led the nation with legislation—now tied up in federal Court—that tells doctors to not ask about patient gun use. Seven other states have similar laws.
The Obama Administration And Gun Control
The NRA’s political victory streak continued in Obama’s first term. Most notably, the U.S. Supreme Court in June 2008 threw out the District of Columbia’s ban on handguns, with its rightwing majority issuing a ruling in Heller that held the Second Amendment included the right of individuals to keep a handgun at home for self-protection.
That ruling, authored by Justice Antonin Scalia, is arguably the Court’s most significant revision of constitutional doctrine in decades. While it is one of the gun lobby’s biggest legal victories, it held that Americans only have a right to a handgun at home for self-defense—leaving all other guns and uses in public open to federal regulation.
Meanwhile, the Republican-led House has continues to push for rolling back gun controls. In December 2010, it included language in a larger bill that lifted a ban on transporting guns in checked bags on Amtrak trains.
In 2011, the National Defense Authorization Act included language preventing military commanders and officers from talking to service members about their private weapons, even if a that soldier was seen as being at risk for suicide—which are now occurring at record levels. In December 2012, two retired Army generals—including an ex-Chief of Staff—wrote a Washington Post column urging Congress to stop the ban.
In June 2012, the ATF lifted 90-day residency requirement for immigrants living in U.S. who want to obtain firearms. And last July, the Senate did not vote on an international arms trade treaty, pleasing the NRA’s 4 million members. Three months earlier, GOP presidential candidate Newt Gingrich told the NRA’s annual meeting, “The Second Amendment is an amendment for all mankind.”
And congressional Republicans have been pushing for a new federal gun law that would expand, not contract, gun rights. The ‘National Right To Carry Reciprocity’ proposal would let people who live in states that have looser restrictions carrying concealed weapons (say Utah) bring those guns into states with stricter laws (New York). In April 2012, California Sen. Diane Feinstein placed a ‘hold’ on the bill, stalling its progress.
Whether the NRA’s three-decade-long political victory streak will be broken in 2013 is an open question that can only be answered by assessing the fine print of the proposed reforms and seeing how quickly they are implemented at the federal and state levels. But there appears to be new political will to not just reverse some of the worst gun laws and loopholes, but to challenge the NRA’s underlying principles which inflate the Second Amendment right to guns. Indeed, as the Supreme Court’s Heller ruling stated, the federal Constitution permits an array of gun control laws.
The Obama Administration will be proposing a package of federal gun control reforms on Wednesday, January 16. Vice-President Biden has been meeting with various constituencies and is expected to propose a slate of reforms that could roll back federal law to where it stood in the early 1980s—with new and more robust background checks, bans in assault weapons and high-capacity ammunition magazines, closing the gun show sales loophole, restarting federal research into gun violence, and other measures—some of which do not need Congress to act.
The Newtown shooting has ended the acquiescence of some Democrats in federal and state office. Two previously pro-gun Democratic Senators, Virginia’s Mark Warner and West Virginia’s Joe Manchin, both with “A” ratings from the NRA, joined Obama’s call for “meaningful” action. Meanwhile, longtime gun-control proponents, such as Diane Feinstein are preparing new legislation that is said to not repeat mistakes in prior federal bans. And governors in New York, Connecticut and Colorado have all called for renewed state gun control laws—with New York acting the quickest and passing new state gun controls this week.
Whether some Republicans in Congress will break from the NRA’s grip and support new gun controls is an open question. That has to happen for any measure to emerge from the House. But understanding how the NRA has dominated gun policy and debate in recent decades is the first step to unraveling its power and influence—as assessing the White House’s remedies in 2013.