Overview: America's Gun and Violence Crisis; And: How the 2nd Amendment Got Hijacked by the NRA and Antonin Scalia
The Challenges Ahead: Protecting Our Society From Gun Violence
An Editorial by Don Hazen
One of the worst feelings that emerges from horrible events like the mass murder at Connecticut's Sandy Hook elementary school is the sense that we live in a country that has fundamentally lost the ability to protect itself and its most vulnerable citizens from gun violence.
This sense of defenselessness can be overwhelming, especially when the increasingly savage mass killings are blasted over our mass media. When we look at the recent scorecard, it's clear that the problem is spiraling out of control. Six of the 12 most deadly shootings in our history have occurred within the past five years. The vast majority of the world’s worst mass shootings, in developed countries, have taken place in the United States. There have been 65 mass shootings since Congresswoman Gabrielle Giffords was shot in 2009. On top of that, nearly 15,000 homicides were committed in the U.S. in 2011, two-thirds of them with firearms, and this rate is rising since December.
Ironically and depressingly, sales of guns and ammunition has gone through the roof since the Sandy Hook tragedy, and production cannot keep up with demand. So the 300 million guns in personal hands in the U.S. are increasing for sure.
With the mass murders, it is the NRA that is most culpable. The NRA has been transformed from an organization primarily about gun safety to one taken over by gun zealots. The NRA protects the ability of virtually anyone to get their hands on guns, even the most powerful assault weapons like those used in recent killings. This is in stark contrast to the rest of the developed world. For the NRA, "freedom" is now defined as the ability to carry a concealed handgun virtually anyplace.
Like most realities in America where consumers and citizens are routinely victimized, the adage "follow the money" always rings true. The NRA for all intents and purposes is the advocacy arm for the booming gun and ammunition industry, where in turn, some of the top gunmaker companies are owned by Wall Street hedge funds.
Gun violence is a huge problem for our society and a top editorial priority for AlterNet. Over the weekend we published Steven Rosenfeld’s illuminating article, "The Surprising Unknown History of the NRA." Below is, "How the Second Amendment Was Hijacked by Antonin Scalia and the NRA." Rosenfeld is a veteran investigative reporter, deeply immersed in the history and controversies regarding American gun culture, gun violence and gun control laws. He will be writing a series of articles on gun safety, the NRA, and violence this week and next.
We at AlterNet know that the fight with the NRA will be long and challenging. Many elected officials fear the NRA, because it will use its deep pockets to try to defeat them if they stray from the NRA’s uncompromising hard line. The NRA also donates, along with the gun industry, large amounts of campaign dollars to those running for office (follow the money).
Beyond the NRA, other factors that contribute to our violent culture must be examined. Jan Frel and I co-wrote the piece, "We Are a Country Drenched in Bloodshed: Some Hard Truths About Violence in the Media" several weeks ago about violence in the media, urging all of us to take a look at the interlocking dynamics that pervade much of our media landscape. The NRA works to "normalize" gun violence by sponsoring and collaborating with the production and marketing of violent video games, which deeply affect children and adolescents.
There is a long road ahead of us as a country before we can dig out of the morass of violence that has multiple causes and difficult fixes. But our intelligence tells us that easy access to guns, especially powerful assault rifles, is at the center of our pervasive and unacceptable violence problem. Clearly, the country has strayed from any semblance of balanced and cautionary policies where public safety is more important than the unfettered right to guns, including weapons designed for the military.
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
As Burger wrote in Parade, the meaning of the phrase, “the right of the people to keep and bear arms”—which became the NRA’s motto in 1977—must be understood “by looking into the purpose, setting and objectives of the [Constitution’s] draftsmen.”
The accurate context and historical use of these terms concerns states being able to recruit armed militias if need be from citizens; it’s not about empowering citizens to freely roam with guns. “People of that day were apprehensive about the new 'monster' national government presented to them," Burger wrote, noting that the First Congress limited the size of a national army to 840 men. “The state militia—essentially a part-time citizen army, as in Switzerland today, was the only kind of ‘army’ they wanted.”
“Some have exploited these ancient concerns, blurring sporting guns—rifles, shotguns and even machine pistols—with all firearms, including what are now called ‘Saturday night specials,’” Burger wrote, referring to the NRA and that era’s most troublesome firearm. “There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to ‘concealed weapons’ are common. That we may be ‘over-regulated’ in some areas of life has never held us back from more regulations of automobiles, airplanes, motorboats and ‘concealed weapons.’”
Burger was writing when murders by handguns were a leading cause of violent deaths in America. But another retired Supreme Court Justice, John Paul Stevens, gave a speech in October 2012, making the same point. “When I joined the Court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to the use of arms that were related to military service,” he told the pro-regulation Brady Center.
What’s really intriguing are the colonial-era and 19th-century gun controls that Winkler recounts in Gunfight. In colonial times, some states, such as New Hampshire and Rhode Island, had public officials go door-to-door to catalog “gun ownership in a community.” Ten of the original 13 colonies even confiscated guns for use in the Revolutionary War; that was called “impressment.” The guns were later returned, but Americans didn’t care if owners claimed a need or right to self-protection. Militia laws in Massachusetts, for example, required all gun owners to appear annually in public with their arms—musket rifles—for government inspection and listing on a statewide gun registry.
Only certain ethnicities were allowed to own guns. Racial minorities were barred, as were Catholics in Maryland. Only people who pledged their support to the Revolutionary War were allowed to keep guns, which disarmed about 40 percent of the white population that was still loyal to England. In some cities, like Boston, there were laws on where ammunition could be stored, and having a loaded gun in public and in one’s home was illegal and could result in that gun being taken by local authorities. But these gun controls were also matched with gun rights. Other colonies, such as Pennsylvania, New Hampshire, Virginia and Vermont (the 14th state) wanted founding documents giving residents gun rights for self-defense and state militias.
“The founding fathers had numerous gun control laws that responded to the public safety needs of that era,” Winkler writes. “While our own public safety needs are different and require different responses, the basic idea that gun possession must be balanced with gun safety laws was one the founders endorsed.”
Between 1790 and 1860, 20 states joined the Union and 14 of them included the right to bear arms in their state constitutions. But those states also passed gun laws that today’s NRA would fiercely oppose. Most notable was banning concealed weapons in public. Kentucky and Louisiana did that in 1813. Indiana followed in 1820. Tennessee and Virginia followed in 1838, Alabama in 1839, and Ohio in 1859.
Historian Clayton Cramer concluded that the bans were not just to repress freed slaves after uprisings in Haiti and Louisiana, but also to stop violence among whites. Gun laws were racially neutral. “These laws were designed to diminish exactly what the Wild West would later become famous for: dueling, gunfights, violence,” Winkler wrote. “The southern culture of the time, Cramer found, dictated that when someone insulted you publicly, you challenged them to a duel."
Even more surprising, the Wild West of innumerable Hollywood western movies was not so wild after all. In most frontier towns, guns had to be surrendered to local lawmen when their owners were within city limits. Reflecting that sentiment, James Stephen Hogg, who was elected Texas governor in 1890, said the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man."
When Dodge City, Kansas, was organized in 1973, its first local law was for gun control. The fabled shootout at the OK Corral in Tombstone, Arizona in 1881 was about disarming ruffians who would not turn in their guns to the sheriff. This myth “that once there was a time when people settled their differences with guns… [is] profoundly misleading,” Winkler wrote.
By the end of the 1800s, several states that put gun rights into their constitutions also regulated or completely banned openly carrying guns. Those states included Florida, Texas and Oklahoma. “Gun control was sufficiently widespread that the Washington State Supreme Court could write in 1907, ‘Nearly all the states have enacted laws prohibiting the carrying of concealed weapons,’” Winkler wrote.
Reversing, Not Rolling Back the Clock
One century later in 2008, a U.S. Supreme Court majority led by Justice Scalia threw out the District of Columbia’s handgun ban. In December 2012, the same Judge Posner who slammed Scalia’s ruling as “faux originalism” cited that case in his appeals court ruling striking down Illinois’ ban on carrying a loaded gun in public. He said he had no choice but to follow the Supreme Court’s new precedent. While Posner’s ruling conflicts with other circuits and may bring the issue back before the high Court, the larger reality is America’s gun laws have been unwinding for decades.
Before 1980, only five states allowed gun owners to carry concealed weapons in public, the New Yorker’s Jill Lepore reported in a detailed piece last April. By 2012, 44 states had passed some version of laws allowing the concealed weapons. The state of Florida passed a vigilante “Stand Your Ground” law in 2005—leading to the death of Trayvon Martin in February 2012—followed by passage of similar laws in 24 other states. And today, approximately 40 percent of guns are bought at 5,000 gunshows held annually, a loophole created in a 1986 federal law that evades licensing and training requirments.
The federal deregulation of guns started in the 1980s when Congress began passing laws during the Reagan administration that limited federal oversight and research and created the loopholes seen today. While the Clinton administration tried to reinstate controls in the mid-1990s—following some of the remedies made by Warren Burger such as expanded background checks and waiting periods for buyers—the past three decades have seen an almost unbroken record of political victories for pro-gun forces.
But those victories are a dramatic turn from the preceding 200 years of American history when gun rights were balanced by gun controls—first at the state and then federal level. The most horrific shootings in recent years—massacres at public schools, movie theaters and congressional forums—suggest the nation is not poised to enact a new generation of gun controls, but to return to the historic norm before the modern libertarian-run NRA and a radical Supreme Court majority pushed America to right-wing fringes.
Editor's note: This is the second in a series of AlterNet reports on the nation's emerging gun-control debate. The sources include several books, notably Gunfight: The Battle Over The Right To Bear Arms in America, by Adam Winkler (2011), Gun Show Nation: Gun Culture And American Democracy, by Joan Burbick (2006) and Lawyers, Guns and Money: One Man's Battle With The Gun Industry, by Carol Vinzant (2005). Other sources include reporting by the New Yorker's Jill LePore and Jeffrey Toobin, the New York Review of Books' Garry Wills, and U.S. Supreme Court decisions, including Justice Stephen Breyer's dissent in District of Columbia v. Heller (2008), as well as a piece by retired Supreme Court Chief Justice Warren Burger in Parade magazine.