How the NRA Rewrote the Second Amendment – POLITICO Magazine
A fraud on the American public. Thats how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.
Twenty-five years later, Burgers view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in barseven in churches.
Story Continued Below
Many are startled to learn that the U.S. Supreme Court didnt rule that the Second Amendment guarantees an individuals right to own a gun until 2008, when District of Columbia v. Heller struck down the capitals law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Dont look for answers in dusty law books or the arcane reaches of theory.
So how does legal change happen in America? Weve seen some remarkably successful drives in recent yearsthink of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Associations long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.
***
The Second Amendment consists of just one sentence: A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Today, scholars debate its bizarre comma placement, trying to make sense of the various clauses, and politicians routinely declare themselves to be its strong supporters. But in the grand sweep of American history, this sentence has never been among the most prominent constitutional provisions. In fact, for two centuries it was largely ignored.
The amendment grew out of the political tumult surrounding the drafting of the Constitution, which was done in secret by a group of mostly young men, many of whom had served together in the Continental Army. Having seen the chaos and mob violence that followed the Revolution, these Federalists feared the consequences of a weak central authority. They produced a charter that shifted powerat the time in the hands of the statesto a new national government.
Anti-Federalists opposed this new Constitution. The foes worried, among other things, that the new government would establish a standing army of professional soldiers and would disarm the 13 state militias, made up of part-time citizen-soldiers and revered as bulwarks against tyranny. These militias were the product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age 16 to 60 was enrolled. He was actually required to ownand bringa musket or other military weapon.
On June 8, 1789, James Madisonan ardent Federalist who had won election to Congress only after agreeing to push for changes to the newly ratified Constitutionproposed 17 amendments on topics ranging from the size of congressional districts to legislative pay to the right to religious freedom. One addressed the well regulated militia and the right to keep and bear arms. We dont really know what he meant by it. At the time, Americans expected to be able to own guns, a legacy of English common law and rights. But the overwhelming use of the phrase bear arms in those days referred to military activities.
There is not a single word about an individuals right to a gun for self-defense or recreation in Madisons notes from the Constitutional Convention. Nor was it mentioned, with a few scattered exceptions, in the records of the ratification debates in the states. Nor did the U.S. House of Representatives discuss the topic as it marked up the Bill of Rights. In fact, the original version passed by the House included a conscientious objector provision. A well regulated militia, it explained, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
Though state militias eventually dissolved, for two centuries we had guns (plenty!) and we had gun laws in towns and states, governing everything from where gunpowder could be stored to who could carry a weaponand courts overwhelmingly upheld these restrictions. Gun rights and gun control were seen as going hand in hand. Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia. As the Tennessee Supreme Court put it in 1840, A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.
***
Cue the National Rifle Association. We all know of the organizations considerable power over the ballot box and legislation. Bill Clinton groused in 1994 after the Democrats lost their congressional majority, The NRA is the reason the Republicans control the House. Just last year, it managed to foster a successful filibuster of even a modest background-check proposal in the U.S. Senate, despite 90 percent public approval of the measure.
What is less knownand perhaps more significantis its rising sway over constitutional law.
The NRA was founded by a group of Union officers after the Civil War who, perturbed by their troops poor marksmanship, wanted a way to sponsor shooting training and competitions. The group testified in support of the first federal gun law in 1934, which cracked down on the machine guns beloved by Bonnie and Clyde and other bank robbers. When a lawmaker asked whether the proposal violated the Constitution, the NRA witness responded, I have not given it any study from that point of view. The group lobbied quietly against the most stringent regulations, but its principal focus was hunting and sportsmanship: bagging deer, not blocking laws. In the late 1950s, it opened a new headquarters to house its hundreds of employees. Metal letters on the facade spelled out its purpose: firearms safety education, marksmanship training, shooting for recreation.
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. He is the author of The Second Amendment: A Biography.
View post:
How the NRA Rewrote the Second Amendment - POLITICO Magazine
- An Official Journal Of The NRA | This District Courts Treatment of the Second Amendment is Comically Unconstitutional - Americas 1st Freedom - November 18th, 2025 [November 18th, 2025]
- Kennedy secures veterans Second Amendment rights in deal to reopen government, renews call to stop paying Congress during shutdowns -... - November 18th, 2025 [November 18th, 2025]
- Federal Bills Introduced to Safeguard Second Amendment Rights During Government Shutdowns - NSSF | The Firearm Industry Trade Association - November 5th, 2025 [November 5th, 2025]
- Why the political arguments used by conservatives to twist the Second Amendment are a public fraud - Milwaukee Independent - November 5th, 2025 [November 5th, 2025]
- Save the Filibuster Save the Second Amendment - Gun Owners of America - November 5th, 2025 [November 5th, 2025]
- The Supreme Court Is More Interested in Second Amendment Cases Than Ever Before - The Trace - November 3rd, 2025 [November 3rd, 2025]
- SNL Weekend Update: Michael Che Says Government Still Aids Food Insecure Families Through Second Amendment After SNAP Cutoff - Deadline - November 3rd, 2025 [November 3rd, 2025]
- Supreme Court to weigh Second Amendment rights of cannabis users - inlander.com - November 3rd, 2025 [November 3rd, 2025]
- The Popular 3D-Printed Gun Globalizing the Second Amendment - Bloomberg - October 30th, 2025 [October 30th, 2025]
- The Future of the Second Amendment: A Nation Divided, Armed, and at a Crossroads - The Truth About Guns - October 30th, 2025 [October 30th, 2025]
- A warning to Florida public officials about the new open-carry law - Second Amendment Foundation - October 30th, 2025 [October 30th, 2025]
- Members Newsletter: Will SCOTUS Go Narrow in its New Second Amendment Cases? - The Reload - October 30th, 2025 [October 30th, 2025]
- I just took Everytowns online firearm training course - Second Amendment Foundation - October 28th, 2025 [October 28th, 2025]
- New Hampshire Bill Strengthening Second Amendment Rights on Public Property Advances - The Truth About Guns - October 26th, 2025 [October 26th, 2025]
- An Official Journal Of The NRA | Illegal Drugs and Second Amendment Rights - Americas 1st Freedom - October 23rd, 2025 [October 23rd, 2025]
- Supreme Court Will Weigh Gun Restrictions for Drug Users - The New York Times - October 23rd, 2025 [October 23rd, 2025]
- The Right to Bear Technology: Americas Other Second Amendment - Andreessen Horowitz - October 23rd, 2025 [October 23rd, 2025]
- Supreme Court adds another gun case to the docket, over drug use and the Second Amendment - MSNBC News - October 23rd, 2025 [October 23rd, 2025]
- Supreme Court will consider case on Second Amendment rights of drug users - Yahoo - October 23rd, 2025 [October 23rd, 2025]
- Supreme Court will decide if 'habitual drug users' lose their gun rights under Second Amendment - The Spokesman-Review - October 23rd, 2025 [October 23rd, 2025]
- Supreme Court will consider case on Second Amendment rights of drug users - Fox News - October 21st, 2025 [October 21st, 2025]
- Why an American raised in Rhodesia reveres the Second Amendment - Second Amendment Foundation - October 21st, 2025 [October 21st, 2025]
- In yet another move against gun ownership, California Democratic Governor Gavin Newsom recently signed Assembly Bill 1127 into law, triggering... - October 17th, 2025 [October 17th, 2025]
- Across the aisle: shootings, safety and the Second Amendment - The Muhlenberg Weekly - October 15th, 2025 [October 15th, 2025]
- Second Amendment auditors walking roads with rifle and body armor, Fla. cops say - Police1 - October 13th, 2025 [October 13th, 2025]
- The Second Amendment Holds More Weight Than Uncle Dicks Deer Stand - NSSF | The Firearm Industry Trade Association - October 11th, 2025 [October 11th, 2025]
- Supreme Court to hear Hawaii gun law case with Second Amendment implications - Baltimore Sun - October 11th, 2025 [October 11th, 2025]
- Our Next Debate: Would America Be Safer Without the Second Amendment? - The Free Press - October 9th, 2025 [October 9th, 2025]
- Fact Check Team: SCOTUS to hear Hawaii gun law case, potential impact on Second Amendment - The National Desk - October 9th, 2025 [October 9th, 2025]
- Second Amendment auditors walking Florida roads with AR-15 and body armor - Tampa Bay Times - October 9th, 2025 [October 9th, 2025]
- Fact Check Team: SCOTUS to hear Hawaii gun law case, potential impact on Second Amendment - KRCR - October 9th, 2025 [October 9th, 2025]
- Impac Mortgage : Discloses Execution of Second Amendment to Tax Benefits Preservation Rights Agreement and Execution of Amended and Restated Key... - October 9th, 2025 [October 9th, 2025]
- Supreme Court takes Second Amendment case challenging Hawaii gun law - Fox News - October 4th, 2025 [October 4th, 2025]
- Supreme Court takes case that could allow more guns in malls and restaurants - CNN - October 4th, 2025 [October 4th, 2025]
- Justices Take Up Second Amendment Case Over Hawaii's 'Affirmative Consent' Law - Law.com - October 4th, 2025 [October 4th, 2025]
- A different view on Second Amendment rights - thepress.net - October 4th, 2025 [October 4th, 2025]
- Second Amendment Roundup: Removal of Firearm Disabilities - inkl - October 2nd, 2025 [October 2nd, 2025]
- Pursuit Attractions and Hospitality, Inc. Enters into the Second Amendment to the Credit Agreement - MarketScreener - October 2nd, 2025 [October 2nd, 2025]
- Pass the CR, then fight with Truth , and the forgotten part of the second amendment. - Daily Kos - September 30th, 2025 [September 30th, 2025]
- Letters: What the Second Amendment really guarantees - NOLA.com - September 28th, 2025 [September 28th, 2025]
- The Correct Argument for the Second Amendment - The Stanford Review - September 25th, 2025 [September 25th, 2025]
- Letter to the Editor: Protect the Second Amendment - Bemidji Pioneer - September 25th, 2025 [September 25th, 2025]
- Supreme Court should revisit the Second Amendment - Wisconsin State Journal - September 21st, 2025 [September 21st, 2025]
- The Second Amendment Was Created to Put Down Slave Revolts - CounterPunch.org - September 19th, 2025 [September 19th, 2025]
- Charlie Kirks Shocking 2023 Gun Statement Goes VIRAL after Assassination | Defends Second Amendment - Oneindia - September 17th, 2025 [September 17th, 2025]
- Georgia Sheriff Calls Upon Citizens to Exercise Their Second Amendment Rights - Firearms News - September 17th, 2025 [September 17th, 2025]
- The Trump Administration's Half-Baked Plan to Disarm Transgender People Is Legally Bankrupt: Such a Gun Ban Is Not Authorized by Statute or Allowed by... - September 17th, 2025 [September 17th, 2025]
- Budget Committee Approves Ratification Bill on Second Amendment to EC-Bulgaria Financing Agreement under Recovery and Resilience Facility - - September 17th, 2025 [September 17th, 2025]
- Guns of Delusion: Who killed Charlie Kirk? America's Second Amendment obstinacy - The Times of India - September 13th, 2025 [September 13th, 2025]
- Charlie Kirks Murder Illustrates How the Second Amendment Is Swallowing the First - Slate - September 13th, 2025 [September 13th, 2025]
- Vaccines, the Second Amendment, and the Utah Supreme Court - Utah Public Radio - September 13th, 2025 [September 13th, 2025]
- Florida Court Strikes Down Open Carry Ban, Aligning Firearm Laws with Second Amendment - Hoodline - September 13th, 2025 [September 13th, 2025]
- Charlie Kirk's pro-Second Amendment stance revisited after shooting death - Daily Express US - September 13th, 2025 [September 13th, 2025]
- Florida touts big win for Second Amendment after court throws out open carry ban - Washington Examiner - September 13th, 2025 [September 13th, 2025]
- Second Amendment activists in shock as Charlie Kirk shot instead of just schoolchildren - The Beaverton - September 13th, 2025 [September 13th, 2025]
- Fact Check: Charlie Kirk once said some gun deaths 'worth it' in order to have Second Amendment - Yahoo News UK - September 11th, 2025 [September 11th, 2025]
- DeSantis announces 'Second Amendment' tax holiday, renews push for open carry of guns - The Northwest Florida Daily News - September 11th, 2025 [September 11th, 2025]
- Fact Check: Charlie Kirk once said some gun deaths 'worth it' in order to have Second Amendment - Yahoo News Canada - September 11th, 2025 [September 11th, 2025]
- Charlie Kirk once said some gun deaths 'worth it' in order to have Second Amendment - Snopes - September 11th, 2025 [September 11th, 2025]
- Charlie Kirk said "some gun deaths" were an acceptable cost for having Second Amendment gun rights - Daily Kos - September 11th, 2025 [September 11th, 2025]
- Medical Marijuana and the Second Amendment: Eleventh Circuit Revives Second Amendment Challenge to Federal Ban on Gun Ownership for Drug Users - JD... - September 11th, 2025 [September 11th, 2025]
- Charlie Kirks Pro-Gun, Second Amendment Comments Resurface After Fatal Shooting at UVU - Times Now - September 11th, 2025 [September 11th, 2025]
- Reader says protect Second Amendment rights, but reduce access to some firearms - San Antonio Express-News - September 11th, 2025 [September 11th, 2025]
- DeSantis announces 'Second Amendment' tax holiday, renews push for open carry of guns - Lakeland Ledger - September 11th, 2025 [September 11th, 2025]
- Charlie Kirk, shot dead in Utah, once said gun deaths are 'worth it' to save Second Amendment - Firstpost - September 11th, 2025 [September 11th, 2025]
- Florida will have a Second Amendment sales tax holiday. Here's what to know - Pensacola News Journal - September 9th, 2025 [September 9th, 2025]
- DeSantis announces 'Second Amendment' tax holiday, renews push for open carry of guns - yahoo.com - September 9th, 2025 [September 9th, 2025]
- Florida Second Amendment Sales Tax Holiday begins, runs through end of the year - Floridas Voice - September 9th, 2025 [September 9th, 2025]
- Marylands Handgun Roster Board: a rubber stamp or assault on Second Amendment? - Baltimore Sun - September 6th, 2025 [September 6th, 2025]
- Tennessee joins other states on Second Amendment SCOTUS brief - WKRN News 2 - September 6th, 2025 [September 6th, 2025]
- Opinion: Bill 36-0144 Is an Unconstitutional and Racist Attack on the Second Amendment - The Virgin Islands Consortium - September 6th, 2025 [September 6th, 2025]
- Letter to the Editor: Americas Deadliest LoopholeThe Case Against the Second Amendment - Peachtree City Citizen - September 6th, 2025 [September 6th, 2025]
- Congressional Democrats Try to Stop AG Bondi from Restoring Ex-Offenders Second Amendment Rights - Cato Institute - September 5th, 2025 [September 5th, 2025]
- Understanding the Second Amendment commas and all - thepress.net - September 5th, 2025 [September 5th, 2025]
- In Louisiana, gun sales are promoted with Second Amendment tax break - Shreveport Times - September 3rd, 2025 [September 3rd, 2025]
- In Louisiana, gun sales are promoted with Second Amendment tax break - yahoo.com - September 3rd, 2025 [September 3rd, 2025]
- Cabinet Asks Parliament to Ratify Second Amendment to Recovery, Resilience Facility Financing Agreement with EC - - September 3rd, 2025 [September 3rd, 2025]
- Hunters get tax break during Louisianas Second Amendment Sales Tax Holiday Sept. 57 - Unfiltered with Kiran - September 3rd, 2025 [September 3rd, 2025]
- Analysis: The Latest on Weed, Dangerousness, and the Second Amendment [Member Exclusive] - The Reload - September 1st, 2025 [September 1st, 2025]
- Second Amendment Sales Tax Holiday recognized this weekend - WAPT - August 29th, 2025 [August 29th, 2025]