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Coalition Against Gun Violence |
Originally appeared in Newsletter
Vol. 5, No. 3, Summer 1999
Just when it appeared the 2nd Amendment issue was settled as far as the courts are concerned, in April 1999, a U.S. District Judge, Sam Cummings, in Lubbock, Texas struck down a law that made it a felony for people under domestic restraining orders to possess a firearm. The judge said there was inadequate proof that the husband, who had been indicted for threatening his estranged wife during a divorce, was indeed threatening and that the law had the further effect of "criminalizing a lawabiding citizen's 2nd Amendment rights."
The myth that the Constitution guarantees the right of citizens to own gun is kept alive by the NRA. Polls show that up to 80% of the public "believe" citizens have a constitutional right to own guns, although federal courts have, in the past, almost universally rejected the NRA version of the right to bear arms, saying it is a right reserved for state militias, not individuals.
The NRA and other gun groups have consciously steered away from 2nd Amendment arguments and have put money into research hoping to change the legal landscape -- and eventually winning judicial respect for the right to bear arms. The approach appears to have born fruit. Two years ago Supreme Court Justice Clarence Thomas suggested it was time for the high court to take another look at the 2nd Amendment (a view shared by Justice Scalia). Both the Texas judge and Thomas cited the growing body of scholarly work that the NRA has helped fund, to put the NRA's view of the the 2nd Amendment back on the map.
Because of their limited discussion on the matter, the intent of the founding fathers remains a subject of debate, but private ownership of firearms was generally accepted at the time and probably didn't warrant much discussion. To gun control groups the right to bear arms is contingent upon serving in a state-ordered militia. Pro-gun groups say the militia was meant to be broadly defined as any group of ablebodied men, as opposed to an organized-armed force.
Richard Gardiner, a former NRA assistant general counsel who handles a number of gun challenges for the group, says there hasn't been a need to invoke the 2nd Amendment in court because the NRA has been successful in Congress in preventing the most onerous gun-control laws. Mr. Gardiner says that there are better arguments than the right to bear arms:
- 1997- it was successfully argued that the Brady Bill was an illegal federal mandate that violated 10th Amendment protection of states rights.
- The NRA is protesting that the Justice Department's policy of keeping records of gun purchases for 6 months violates gun owners' privacy rights.
- In other cases the NRA argues that a law doesn't accurately describe the gun targeted by particular guncontrol legislation. This argument is known as "void for vagueness," and has been "the biggest winner so far" in attacking antigun laws.
- David Hardy, a Tucson, Arizona lawyer and firearms specialist who is handing an NRA'suit in U.S. district court in Michigan challenging the 1994 federal law banning assault weapons, argues that it denies NRA members equal protection under the law. Although a fan of the NRA is interpretation of the 2nd Amendment, he says, "You've got a sizable uphill battle there," using the 2nd Amendment in court. "It is something you hope to do eventually, but something you can rarely win in the here and now."
What one may take away from all this is that the 2nd Amendment does not protect either side of this debate. Every gun control law and safeguard for society is going to be challenged by the NRA through the court. NRA lawyers are finding ways to get around the 2nd Amendment while they search for judges who can be "persuaded" that this nation needs to protect the rights of gun owners rather than save the lives of its citizens.
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Copyright © 1999-2007 Coalition Against Gun Violence. All rights reserved.
A Project of the Nuclear Age Peace Foundation
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