After waking on Monday morning to news of the horrific massacre in Las Vegas, many Americans were overwhelmed by two emotions. The first was a profound sadness at the unimaginable loss of life, the second a crippling resignation that no reform would be forthcoming. “Nothing will change,” Steve Israel declared in an op-ed in The New York Times. A National Rifle Association able to stop any reform after the slaughters of Newtown and Orlando would be politically powerful enough to prevent any meaningful reform of America’s gun laws.
Over the past forty years, the NRA has had remarkable success at selling an extreme, no-compromise interpretation of the Second Amendment that views any gun regulation as an infringement on individual liberty and a step down the slippery slope to civilian disarmament. This extreme, one-sided perspective was reflected in the words emblazoned on the NRA’s former headquarters in Washington: “THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.” Conveniently omitted was the first clause of the Second Amendment, which refers to a “well regulated militia.” To the NRA, the Second Amendment is all rights and no regulation.
While the NRA’s understanding of the Second Amendment has gained many adherents in recent years, there is nothing inexorable or inevitable about it. The story of gun rights in America is one of transformation and adaptation. Much like the citizens’ militias favored by the drafters of the Constitution, the NRA’s approach, too, may fall out of favor and be relegated to the dustbin of history, opening up new possibilities for limiting gun violence.
However vigorously it promotes itself as a protector of the Constitution, the NRA owes its robust view of the right to keep and bear arms more to the rise of antigovernment sentiment on the American right since the 1970s than to the views of the Founding Fathers. The people who drafted and ratified the Second Amendment had military matters in mind. They were concerned that the federal government would abuse its proposed constitutional power to call forth, arm, and discipline the state militias. So they sought to limit the government’s ability to disarm those militias, which, in the absence of a standing army, were, as the amendment says, “necessary for the security of a free state.”
The framers did not see guns, as many do now, as a form of personal protection against criminals. Muskets were too inaccurate and too slow to reload to be effective protection for hearth and home. Guns won constitutional protection because of their usefulness in fighting wars. Their social and political importance, coupled with their inherent dangers, was also the basis for eighteenth-century gun control.
What the NRA doesn’t like to admit is that guns were regulated in early America. People deemed untrustworthy—such as British loyalists unwilling to swear an oath to the new nation—were disarmed. The sale of guns to Native Americans was outlawed. Boston made it illegal to store a loaded firearm in any home or warehouse. Some states conducted door-to-door registration surveys so the militia could “impress” those weapons if necessary. Men had to attend musters where their guns would be inspected by the government.
The founding-era gun laws often had different motivations from modern-day gun-control legislation. They were responding to the needs of the day and the particular threats posed by guns of that era. But just like today, gun regulation was ultimately justified as a pressing public necessity for the safety of the people. The impact of those laws was often severe. Boston’s storage law, for instance, meant that people could not, without risking a heavy fine, have a loaded a gun by their bedside to shoot an intruder.
In the early 1800s, the militia-based understanding of the Second Amendment began to be replaced by the view that the Constitution protects an individual’s right to have a gun for personal protection. After the War of 1812 showed how unreliable militias were for national defense, the country came to depend instead on the standing army that the framers had once feared. Meanwhile, guns were becoming more useful for self-defense due to technological advances in bullet and firearms design. Samuel Colt patented his famed revolver in 1836, the first gun capable of being fired multiple times before reloading. His company’s informal slogan captured the dawn of a new era in gun politics, in which the driving concern was no longer fighting wars but defending yourself from those who could harm you: “God made man, but Sam Colt made them equal.”
By the mid-1800s, as state court decisions and congressional debates reveal, the notion of the right to bear arms as an individual right had become commonplace. Yet even strong supporters of guns did not believe gun safety laws were inherently suspect. In the 1920s and 1930s, Karl Frederick, an Olympic gold medalist in pistol shooting who served as president of the NRA, was a leading advocate for requiring waiting periods on gun purchases and limiting concealed carry to those with a special need to have a gun on the streets. “I do not believe in the general promiscuous toting of guns,” explained Frederick. “I think it should be sharply restricted and only under licenses.” It is a sign of how drastically gun politics can change that today’s NRA considers that the laws written by its former president unconstitutional.
For decades, the Supreme Court read the Second Amendment only to apply to militias. It wasn’t until 2008 that the justices decided that the amendment guaranteed an individual right. Justice Antonin Scalia’s majority opinion in DC v. Heller claimed that the original meaning of the Second Amendment required this ruling, even as he dismissed the framers’ own words tying the right to keep and bear arms to the militia. As the legal scholar Reva Siegel has shown, the court’s decision was instead the quintessential example of the living Constitution: Scalia gave voice to “understandings of the Second Amendment that were forged in the late twentieth century”—largely by the NRA’s campaigning and lobbying efforts.
In the wake of the Las Vegas shooting, some advocates for reform argue for reversing Heller or even repealing the Second Amendment altogether. The courts and the Constitution are not, however, the main impediments to good and effective gun safety measures. Even Scalia’s opinion, which held only that individuals have a right to keep a handgun at home, admitted that most forms of gun control are constitutionally permissible. Since Heller, the federal courts have been inundated with challenges to gun laws, but nearly every type of restriction has been upheld.
The Second Amendment does not stand in the way of better gun laws; the NRA does. In states where the NRA has little electoral sway, like Massachusetts and California, gun laws are more restrictive. Today’s battles over laws banning assault weapons and requiring universal background checks are mainly political, not constitutional. Even though such laws are consistently upheld in court when they have been enacted, the NRA’s stranglehold on gun legislation in most states and in Congress prevents such laws from being adopted more broadly.
Despite Heller and the NRA’s political influence, the nation’s leading gun group faces an uncertain future. The country is undergoing major demographic shifts that pose a distinct challenge to the NRA: growing numbers of minority citizens, increasing urbanization, and rising rates of higher education, all of which are associated with greater support for gun control. Even among gun owners, the organization’s rhetoric is seen as increasingly outlandish. How is a “good guy with a gun” supposed to stop someone holed up in a hotel room shooting military-style weapons out of a window? Is 58 dead and nearly 500 injured really, as the former Fox News anchor Bill O’Reilly said Monday, “the price of freedom”?
The torrent of mass shootings, coupled with the NRA’s tone-deaf intransigence, has breathed new life into the gun-control movement. Where once the NRA was the only group focused on gun policy that spent considerable sums on elections, the playing field has been leveled a bit by the Michael Bloomberg-financed Everytown for Gun Safety initiative and Gabrielle Giffords’s Super PAC, Americans for Responsible Solutions. In a few recent elections, such as a ballot initiative in the state of Washington to require universal background checks, gun-control advocates have even outspent the NRA.
Despite the sense of resignation so many feel after yet another mass shooting, the mood is shifting. Although President Obama was unable to win new federal laws after Newtown, there has been a flurry of activity at the state level, with new restrictions enacted in California, New York, New Jersey, Connecticut, Oregon, Colorado, Washington, and Maryland. A significant portion of the US population lives in a state that has beefed up its gun laws over the past five years.
The NRA can still count on an influential bloc of intense single-issue, anti-gun-control voters to sway members of Congress, and on the Trump White House to appoint justices committed to the expansion of gun rights. Yet just as electoral politics, rather than the words of the Second Amendment, is the source of the NRA’s power, the democratic process is how the NRA can be defeated. Change is possible. But it won’t come from gutting the Second Amendment. It will come from the same type of political mobilization that gave us the modern NRA.