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Is the NRA Right -- Are Second Amendment Freedoms Under Attack?

12/24/2012 02:43 pm ET | Updated Feb 23, 2013

A Tragedy Mandates a Call to Action

In the wake of the unfathomable horror of the Newtown, Connecticut, elementary school massacre, public discourse has rightly focused on the incredibly disturbing perception of gun homicides in the United States. In particular those done by mass shooters, which have not declined even though the homicide rate has. Logically, included in this discussion are issues of school safety, mental illness and the availability of heavy weaponry -- except, of course, for groups like the National Rifle Association (NRA). The NRA has been quite deft at establishing a Second Amendment mythology that seeks to exclude virtually any discussion of regulation on heavy weapons, period. It is akin to an alcoholic stating that alcohol isn't part of the problem, because he takes his vitamins, exercises and avoids cigarettes.

As we now all know, twenty-six people were murdered, including twenty children and their protectors by an apparently deranged 20-year-old armed with heavy weaponry. Anne Marie Murphy, a 52-year-old mother of four, reportedly valiantly tried to protect the children in her care from a hail of high powered bullets, including one, Dylan Hockley, 6, who she cradled in her arms. Another hero, Victoria Soto, a 27-year-old first grade teacher, was found crouched with her students in a closet. High powered rifles with voluminous magazines meant that these victims, some shot 11 times, never had a chance against a well-armed active shooter. Recent shootings at theaters, malls, churches and schools mandate that public discourse examine all possible solutions to prevent more of these mass killings.

NRA's Myth Machine

However, in one of the most arrogant and wrongheaded positions taken in recent political history, the NRA has made it quite clear that our Second Amendment rights preclude discourse about regulation of heavy weaponry, ammunition and capacity. They point to a left wing industry and corrupted media hell bent on gutting our Second Amendment freedoms. Wayne LaPierre, NRA CEO, in one of his only post Newtown interviews stated on NBC'sMeet the Press:

You know, look. I know there's a media machine in this country that wants to blame guns every time something happens. I know there's an anti-Second Amendment industry in this country. I know there are political (UNINTEL) for 20 years always try to say it's because Americans own guns...

You know, the American people, I know one thing about them, they value their freedom. And when the reality of the consequences of what the politicians in this town and the media and the elites want to do to their Second Amendment rights and take them away, I think they'll do what they've done historically. They'll defend the freedom...

If it's a panel that's just going to be made up of a bunch of people that, for the last 20 years, have been trying to destroy the Second Amendment, I'm not interested in sitting on that panel. The American public supports their freedoms. NRA is not going to let people lose the Second Amendment in this country, which is supported by the overwhelming majority of the American people.

The Second Amendment

Is Mr. LaPierre right or is he the Joe Isuzu of Constitutional analysis? His folklore revolves around the Second Amendment protecting private ownership of virtually any gun being under attack. But what the heck is this Second Amendment and what does it mean?

On December 15, 1791, the Bill of Rights was ratified. The Bill of Rights, or the first ten amendments to the constitution, generally protected states and individuals from the oppression of an overarching central federal government and included protections in the realm of property rights, criminal procedure, speech and religion.

Interestingly, these protections at the time of ratification did not protect individuals from interference with these various rights from the actions of state and local officials. That would have to wait until after the Civil War, with the passage of the 14th amendment in February 1868, which courts have used to apply most, but not all, of the Bill of Rights protections to state and local action as well.

The Second Amendment states:

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.

The Evolving Role of the Supreme Court

There has been much debate as to whose rights are being protected (private individuals or state militias, now known as the national guard in each state), what kind of weapons are included and whether these rights restrict just the federal government, or the states as well? Until the past decade the case-law was often not clear or subject to change as cases increasingly eroded the authority of states to interfere with individual rights. It was only in this century that the scholarly and judicial interpretations of the Second Amendment veered away from one emphasizing the right as one protecting states to maintain and arm a national guard, to one that provided protection to gun ownership by individuals, primarily of simple weapons in the home. It should be noted that around the time of ratification nearly all white males from 17-45 were considered militia.

Still, by 1886, the United States Supreme Court upheld the right of states to prohibit private militias armed with heavy weapons without violating either the First Amendment's protection of association or the Second Amendment in Presser v. Illinois:

The right voluntarily to associate together as a military company or organization or to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the State and Federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

Other late nineteenth century cases allowed states to regulate guns with respect to licensing and concealment, but that was largely because the Supreme Court held then that the Second Amendment restricted only federal action -- something that is no longer a holding of the High Court.

In United States v. Miller, the Supreme Court upheld the right of the federal government to criminalize possession of a sawed off shot-gun, because it was not a weapon suitable for a militia:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

The case seemed to support the interpretation that Second Amendment rights extended more to state militias than individuals, though the opinion was somewhat narrow and hardly definitive.

The most definitive case came at the end of the Supreme Court's term in June 2008 in a case called District of Columbia v. Heller, where a special policeman was denied a permit to possess a gun in his home owing to a virtually complete handgun ban in Washington, D.C. A subsequent case basically applied the rule in Heller to state and local governments as well. In a controversial, but well researched, 5-4 majority opinion conservative Supreme Court Associate Justice Antonin Scalia settled the issue which is now the law of the land:

"There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."

If one were to stop here, the NRA's folklore may actually make sense. However, the Supreme Court has ruled that various rights held to be the most protected, including the right to religious exercise, speech, marriage and interstate travel, are still subject to reasonable regulation.

Justice Scalia said as much in Heller:

Of course the right was not unlimited, just as the First Amendment 's right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Scalia's opinion was most concerned with protecting the right of law abiding citizens to possess handguns and simple weapons in the home, not any gun in any place:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. (Citations Omitted). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (Emphasis added).

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (Citations Omitted, Emphasis added)

It may be objected that if weapons that are most useful in military service -- M-16 rifles and the like -- may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment 's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Even a fundamental right can be regulated and gun ownership is no different. As conservative federal district court judge Larry Burns opined:

Bystanders got to [Tuscon mass killer Jared] Loughner and subdued him only after he emptied one 31-round magazine and was trying to load another. Adam Lanza, the Newtown shooter, chose as his primary weapon a semiautomatic rifle with 30-round magazines. And we don't even bother to call the 100-rounder that James Holmes is accused of emptying in an Aurora, Colo., movie theater a magazine -- it is a drum. How is this not an argument for regulating the number of rounds a gun can fire?

I get it. Someone bent on mass murder who has only a 10-round magazine or revolvers at his disposal probably is not going to abandon his plan and instead try to talk his problems out. But we might be able to take the "mass" out of "mass shooting," or at least make the perpetrator's job a bit harder.

The NRA's complete and insane refusal to put any regulations on weapon type, magazine capacity, and ammunition on the table of public discourse may be about many things, but the Second Amendment is simply not one of them.

Prof. Levin is the co-author of The Limits of Dissent: The Constitutional Status of Armed Civilian Militias (with Thomas Halpern) and a former New York City police officer.