How the NRA perverted the meaning of the 2nd Amendment.

How the NRA and Conservatives Perverted the Meaning of the Right to Bear Arms

How the NRA and Conservatives Perverted the Meaning of the Right to Bear Arms

The law, lawyers, and the court.
June 13 2016 6:44 PM

The Second Amendment Hoax

How the NRA and conservatives have perverted the meaning of the right to bear arms.

Scalia
As Scalia himself noted, “the right secured by the Second Amendment is not unlimited.” (Above, Scalia at the American Enterprise Institute, Oct. 2, 2012 in Washington, D.C.)

Alex Wong/Getty Images

Sunday night, when my son asked me why we shoot each other dead almost every day in America, I got to tell him that it’s because we are “free.” We are free to get a .223 caliber AR-15–style semi-automatic rifle and a 9mm handgun. And we are free to sell those weapons to someone who might shoot and kill 49 people in a nightclub because of whom they choose to love. We are free to arm ourselves against any potentially tyrannical federal government and also free to watch our children bleed to death in our schools, and churches, and clubs.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

And we are free to do it all again tomorrow and the day after that. We are free to feel paralyzed and trapped in a system that is literally killing us.

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Freedom in America also means that we are free to wake up every morning hoping that it’s not our kid who gets shot with a weapon of war, and free to wake up hoping it’s not our kid who shoots someone, and free to wake up praying it’s not our kid, or our spouse, or our neighbor who shoots herself. In this freest country on earth, we also happen to be in a perpetual hostage situation, in which one false move—or merely the choice to go to class, or to dance with friends—means you may wind up dead.

What does all this have to do with freedom? Well the document that promises and protects our freedom has been interpreted to say that we are all condemned to live out our days in terror, hostage to powerful interests who urge us to become ever more free by purchasing and stockpiling ever more lethal weapons of war. Perhaps nobody so perfectly captured this twisted definition of freedom as former Republican presidential candidate Ben Carson, who in the wake of yet another round of futile debates about gun rights last fall said this: “I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away.” Indeed.

This is where I tell you that the current interpretation of the Second Amendment—the one held onto by Carson, and Donald Trump, and practically the entire Republican Party—is a hoax. Outside of the GOP, this is widely understood. But what we fail to comprehend, as we bury more of our dead in the name of freedom, is that it is a triple-decker hoax: A lie wrapped in a fabrication, lacquered over with a falsehood. That we chose to wrap it around our necks as a symbol of our own liberty is our own fault and shame.

The Second Amendment to the Constitution says this: “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.” For most of U.S. history, that was understood to mean that the freedom guaranteed by the Second Amendment was precisely what it said: the right of the people of each state to maintain a well-regulated militia.

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So clearly and unequivocally held was this worldview that no less a liberal squish than Richard Nixon Supreme Court appointee Warren Burger said after his retirement in 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.” This reading was based on precedent. The Supreme Court had clearly agreed with Burger’s interpretation and not that of the special interest groups he chastised, perhaps most famously in a 1939 case called U.S. v. Miller. That ruling said that since the possession or use of a “shotgun having a barrel of less than eighteen inches in length” had no reasonable relationship to the “preservation or efficiency of a well regulated militia,” the court simply could not find that the Second Amendment guaranteed “the right to keep and bear such an instrument.” Period, full stop. And that was the viewpoint adopted by the courts for years.

What changed? As Cass Sunstein and others have explained, what changed things was a decades-long effort by exceptionally well-organized, well-funded interest groups that included the National Rifle Association—all of whom “embarked on an extraordinary campaign to convince the public, and eventually the courts, to understand the Second Amendment in their preferred way.” It’s rather miraculous, if you stop to think about it: In a few short decades the NRA’s view of the Second Amendment became the law of the land. By 2008, writing the majority opinion for the Supreme Court in District of Columbia et al. v. Heller, Antonin Scalia enshrined this view for first time that: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

That the Heller court itself qualified that right in multiple ways—and that in the years since Heller, the court has declined one important gun case after another—doesn’t change the fact that the hoax is now the law. On top of everything, most Americans believe by rather huge margins that the concededly ambiguous wording of the Second Amendment means that individuals have the constitutional right to bear arms, even if they don’t want it. According to a recent NRA poll, when asked if “[e]very American has a fundamental right to self-defense and a right to choose the home defense firearm that is best for them,” 76 percent of respondents said “yes.”

But that is only the crunchy bottom layer of the fraud. The larger fabrication is the idea that the Second Amendment—unlike other provisions of the Constitution—cannot be subject to any reasonable restriction. As my friend Sonja West pointed out in Slate after another mass shooting late last year, we impose limits, caveats, and conditions on many provisions of the Constitution without crying tyranny:

We have the constitutionally protected right to peaceably assemble, but not to block traffic. We are protected from unreasonable and unwarranted searches, unless there is probable cause, exigent circumstances, or a hot pursuit. If charged with a crime, we have the right to a speedy trial (but not if the prosecution is hunting down witnesses) and also a public one (but not if you want your trial televised). We also have the right to a trial by jury (unless the crime carries a sentences of six months or less).
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Constitutional rights are subject to every sort of condition and limitation, and as Scalia himself noted in Heller, “the right secured by the Second Amendment is not unlimited.” He even went on to list some reasonable limits.

The second hoax—that the right to bear arms is not merely an individual right but also that it is the only constitutional right subject to zero regulation—makes no sense on its face, until and unless you are willing to fall prey to the third fraud.

Hoax number three: Obama, Clinton, Democrats, liberals, the media, whomever are coming for your guns. They are Coming. For your Guns!!! This is the crunchy candy shell that makes the other two lies seem almost reasonable. Of course you should have an inviolate individual right to defend yourself against a tyrannical federal government if you have persuaded yourself that the federal government is indeed tyrannical. This is the big lie that continues to be broadcast and pushed out ad nauseam, and no amount of fact-checking or direct confrontation with accusers makes a whit of difference. The NRA wanted us to feel that only our guns would make us free, and they have prevailed.

That is, of course the paradox. We are in thrall to a fib of epic proportions that itself relies on two other lies. And because we are captive to all these lies, we are also captive to the notion that as much as we wish someone would do something about all the innocent dead people, our hands are tied by the freedom-affording gift that is the Second Amendment. It is a sick joke of our democracy that after every mass shooting we must tell our children that the Framers gave us this precious gift of liberty, more valuable than their lives, and that we are stuck with it. This is the opposite of freedom. It is slavery by choice.