History of Gun Control – Part 2

The History of The Gun Rights War

Part II

As noted in Part 1 of this series, the history of The Gun Rights War is actually a history of vain attempts to control behavior by regulating things, and it actually pre-dates the invention of firearms, probably going back to the very beginning of human history.  But here in the US, the roots of The Gun Rights War were planted in the soil of racism.  

The right to arms was firmly ensconced in the American system and psyche as a fundamental aspect of liberty – distinguishing citizen from subject and master from slave.  It is ironic that, as another group broke the bonds of slavery and strove for recognition as free men and citizens, this same fundamental principle of liberty should cause citizens to compromise their own rights in an attempt to limit the rights of others.

The two key obstacles blocking restrictions on arms at the state and local levels were the objections of White citizens not willing to have their rights infringed, and federal intervention under authority of the Bill of Rights and later the 14th Amendment.  

Whites’ fears of lost liberty were largely overridden by their fear of armed Blacks and assuaged by assurances that any restrictions would apply only to “undesirables.”  The Federal Government was pushed out of the equation with careful parsing of the Constitution and the 14th Amendment in cases before the Supreme Court, particularly the Slaughter-House Cases and a case called US v. Cruikshank.  Both cases have subsequently been reviled by scholars as being among the worst opinions ever delivered by the Supreme Court, but as recently as 2010 the Court turned down an opportunity to reverse Slaughter-House.

Prohibition and the violence it brought led to the first federal gun control law, the National Firearms Act of 1934 (NFA) which restricted machineguns and other “exotic” weapons.  The NFA led to the first Supreme Court case directly hinging on the Second Amendment, US v. Miller.  In that case Miller and his lawyer were no-shows before the Court so the only arguments were those of the government lawyers.

The Court opined that the Second Amendment’s purpose was to “assure the continuation and render possible the effectiveness of” the militia and that it must be looked at with that object in mind.  They then held that since there was no evidence presented to show that a short-barreled shotgun was normal military gear, its possession would not be protected under the Second Amendment.  For nearly eight decades lower courts used the Miller case as support for the position that the Second Amendment only applied to people and weapons engaged in active service in a government-sanctioned militia.

By the late 1950s the idea of federal gun laws began percolating and that was accelerated by the tragic political assassinations of the 1960s along with rising crime and racial tension. This all was also coinciding with large numbers of very inexpensive WWII surplus firearms being dumped into the US market. That’s when Senator Thomas Dodd (D-CT), introduced a bill to regulate the sale of firearms and ammunition, restrict firearms imports, and to license gun dealers.   

The fight over the law was muddied by multiple versions – most much more restrictive.  This led many to see Dodd’s final bill as an acceptable compromise and it enjoyed quite a bit of support among gun owners and a firearms industry wanting to block those cheap imports.  Once the law was implemented though, numerous problems began surfacing and still proponents of stricter laws were clamoring for more and more restrictions.  The National Rifle Association became the reluctant leader of the “Gun Lobby” as shooters and rights advocates demanded more organized resistance to the constant onslaught.

That resistance didn’t materialize in earnest until almost 10 years later when fire-brand gun writer Neal Knox and a group of rights advocates staged a coup during the NRA Annual Meeting in Cincinnati, Ohio in 1977.  That was a turning point for NRA and Knox went on to lead an all-out political war on the GCA and BATF.  This resulted in the largest membership boom in NRA’s history and, eventually, passage of the McClure – Volkmer Firearms Owners’ Protection Act.

NRA realized some success in the states too, but the group had very little luck in the courts.  On several occasions NRA-sponsored legal challenges fell flat – sometimes very badly.  But in 2004 a financially secure, libertarian minded attorney named Robert Levy joined forces with a brash and successful young litigator named Alan Gura. Together they meticulously put together a very narrow, very specific challenge to the virtual ban on functional handguns in the District of Columbia.

That case, DC v. Heller, was a resounding victory for the Second Amendment – though a narrow one with a Court split 5-4.  Gura, now with backing of the Second Amendment Foundation and the Illinois State Rifle Association, already had a follow-up case in the wings with a challenge to Chicago’s handgun ban.  To win, the Court would have to agree that the Second Amendment is enforceable against state and local governments.  By another 5-4 decision Gura and company won McDonald v. Chicago and opened the door to challenges against state and local gun laws around the country.

The Second Amendment Foundation and Gura, with the cooperation of local grassroots groups, are currently challenging laws and regulations in a dozen states and at the federal level.  They have also enjoyed numerous small victories employing a careful, piece-by-piece strategy for reclaiming the Second Amendment.

Meanwhile the rights movement is growing and dispersing with more people involved in more organizations working on more principle-based legislation than ever before.  Litigation is important and having a big dog like NRA on the job in DC is important too, but elections, legislation, and ultimately liberty are in the hands of the grass roots gun rights movement.  The Firearms Coalition and I are proud to be deeply involved in that movement and invite every lover of freedom to participate.

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