Boston University Law Review January, 1995
75 (1995): 57.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
GUN CRAZY: CONSTITUTIONAL FALSE CONSCIOUSNESS AND DERELICTION OF DIALOGIC RESPONSIBILITY
Andrew D. Herz *
A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment . . . . Our decisions belie that argument, for the Second Amendment was designed to keep alive the militia.
¾ Justice William O. Douglas[1]
INTRODUCTION
This is an Article about the causes and costs of false consciousness ¾ false consciousness regarding the constitutional concept of the "right to bear arms." This is an Article about the deceit, misperception, and dereliction of responsibility that have characterized America's dysfunctional gun control debate.
My focus is on the claim that every proposed regulation of firearms necessarily implicates the Second Amendment. The gun lobby[2] has suc-[Page 58] cessfully spun a mythical broad individual right to bear arms for all legal private purposes. Yet the courts have consistently found that the Second Amendment guarantees a right to bear arms only for those individuals who are part of the "well regulated Militia" ¾ today's stateside National Guard. Despite widespread belief to the contrary, the courts have clearly held that there is no right to bear arms for self-defense, hunting, or shooting competitions, much less arsenal-building in preparation for resistance of potential domestic tyranny.
Those with the greatest ability and responsibility to challenge this constitutional myth ¾ politicians, journalists, and legal scholars ¾ have failed to do so. The body politic's widespread, and virtually unchallenged, belief in this vast right to bear arms has significantly undermined reform efforts to limit and regulate access to firearms. A constitutional false consciousness has perpetuated a system that provides notoriously easy access to all types of high-powered weapons. As a result, America has become the runaway world leader in gun violence, a place where:
• More than 38,000 people died from gunshot wounds in 1991 ¾ more than 100 men, women, and children for each day of the year.[3] [Page 59]
• An estimated 222 million firearms are in circulation in a population of 260 million.[4]
• One handgun rolls off an assembly line every twenty seconds, and someone is injured or killed by another handgun once every twenty seconds.[5]
• Six states have already seen firearms surpass motor vehicles as the leading cause of death by injury, and if the current trend held [Page 60] in 1994, gun deaths have already topped annual motor vehicle deaths.[6]
• Thirteen children are struck by bullets ¾ "stray" and not-so-stray[7] ¾ each and every day.[8]
• Gunshot wounds are the leading cause of death of African-American males aged fifteen to nineteen.[9][Page 61]
• The second most dangerous consumer product on the market is also one of the least regulated.[10]
This Article contends that the prevailing Second Amendment deception represents an especially severe threat to rational policymaking in a representative democracy. An economically self-interested, single-issue pressure group has effectively mobilized a rabidly vocal minority to drown out and shout down virtually all other voices in the constitutional conversation. It is the judiciary's interpretations that set the boundaries of constitutionally permissible political action. Yet we cannot even hear the judicial voices that are supposed to be the primary arbiters of the Constitution. We must reform our nation's firearms laws using an accurate political map ¾ one whose terrain is free of phantom constitutional barriers discredited by the courts. We must undertake a rational cost-benefit analysis.
But we are not engaged in any such analysis, thanks in large part to the constitutional fish story told by the gun lobby, swallowed by the public, and rarely challenged by politicians, the media, or legal scholars.
Part I of the Article examines doctrine, reviewing the consistent case law that interprets the Second Amendment as providing a narrow individual right[11] to bear arms only when necessary to maintain a "well regu-[Page 62] lated Militia." In light of this settled case law from the Supreme Court and ten circuit courts of appeals, Part I explains that the gun lobby's story of a broad individual right to bear arms for all legal private purposes[12] ¾ barring virtually all regulation of firearms ¾ is untenable. The broad- individual-right view is, at best, a normative argument about what the Second Amendment should mean, rather than what it actually does mean today.
Part II explores deception, documenting the causes and costs of the constitutional false consciousness surrounding the Second Amendment. With its ritualistic refrain about "the right to bear arms" supporting an agenda that is part political and part commercial, the gun lobby has successfully seeded an American psyche already rich in its reverence for the gun. With its fanatical, quasi-religious insistence on adherence to the false gospel of a broad individual right to bear arms, the gun lobby has played an important role in blocking potential gun control legislation, and in perpetuating our extraordinary level of gun violence.
Part III alleges dereliction of duty, contending that political leaders, the media, and legal scholars owe the public a special "dialogic responsibility." Given their respective positions of power, influence, respect and access to effective means of communication, politicians, journalists, and scholars each have both the resources and the role-responsibility to con-[Page 63] tribute meaningfully and truthfully to our national dialogue on vital political and legal issues. Part III then analyzes how all three groups have failed to hold up their end of the constitutional gun control debate. These groups have failed to make the public aware of the judicial consensus rejecting the gun lobby's broad-individual-right position. That constitutional deception has reverberated, with insufficient explanation or challenge, throughout the halls of Congress, newsrooms, and our nation's law schools and law reviews.
The Article ultimately urges a more conscientious effort by politicians, journalists, and scholars to uplift the dialogue, to expose the delusional constitutional barrier, and to urge the public to explore the simple costs and benefits of a comprehensive regulatory approach to firearm manufacture, sale, and possession.
I. THE OPERATIVE AND FABRICATED MEANINGS OF THE SECOND AMENDMENT
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.[13]
A. A Tale of Two Stories
In their attempts to clarify the text of the Second Amendment and to sway public opinion, gun lobby and gun control advocates tell two competing stories. The gun lobby's story treats the Second Amendment as a broad individual right ¾ a near-absolute right for all law-abiding citizens to possess firearms for all private purposes, including self-defense, hunting, shooting competitions, and readiness for armed rebellion.[14] Under this broad view of the Second Amendment, the textual focus rests almost exclusively on the guarantee in the Amendment's second clause, that "the right of the people to keep and bear Arms shall not be infringed." Gun-rights advocates propounding the broad view insist that the "well regulated Militia" was in 1791, and is today, made up of citizens bearing their privately owned firearms and gathering together independently, without government control.[15] The broad view relies almost exclusively on an originalist interpretive stance, emphasizing what gun-rights litigator Don Kates has appropriately labeled the "personal attitudes of the Founders"[16] ¾ statements in favor of private firearms ownership for assorted purposes, especially for the purpose of arming the citizenry as a precau-[Page 64] tionary counterweight against potentially tyrannical government.[17]
The competing story told by gun control advocates treats the Second Amendment as a narrow or a limited individual right. Courts and commentators have often labeled this the "collective right" or "states' right" view.[18] According to this story, the "right to bear arms" was established in 1791 only to preserve a well-regulated militia, and not to extend to purely private purposes. The arms-bearing right only applies to individuals using firearms for purposes that are necessary to maintain the well-regulated militia. Under this narrow view of the Second Amendment, the textual focus is primarily on the introductory clause. That clause is described as unique in the Bill of Rights: an explicit statement of purpose that modifies the "right of the people to keep and bear arms" in the second clause. Proponents of this limited reading contend that the "well regulated Militia" was a government-organized, trained, and disciplined fighting force drawn from a specified segment of the population, rather than a collection of all armed and independent citizens.[19]
This narrow view relies in large part on twentieth-century developments surrounding the Second Amendment, and only partially on originalist materials. The originalist part of this story portrays the Second Amendment as a compromise between the Federalists' insistence on a strong federal government supported by a large standing army, and the Antifederalists' demand that the states maintain control over the existing state militias as a counterweight to the expanding federal power.[20]
It is not the purpose of this Article to claim that any constitutional [Page 65] "clause can generate a uniquely correct answer"[21] ¾ particularly when the clause's syntax is as confusing as that of the Second Amendment . But it is worth noting that the broad-individual-right view ¾ leaning so heavily as it does on colonial leaders' various statements of subjective intent ¾ seems unconvincing, even from a purely originalist standpoint.[22] On closer examination, glowing testimonials from Founding Fathers such as James Madison and Patrick Henry to American's great "advantage of being armed"[23] and "[t]he great object . . . that every man be armed"[24] are even less persuasive, regardless of how many times the gun lobby trots them out. Gun-rights advocates manufacture many of the apparent endorsements of an expansive Second Amendment interpretation by stripping critical context from the original quotations.[25] The "well regulated Militia" of 1789 was indeed well regulated by the government; it was not the independent, spontaneous gathering of armed citizens described by gun-rights activists.[26] Although some gun-rights activists [Page 66] dismiss the introductory clause as nothing more than "a declaration of political philosophy,"[27] the plain meaning of that language suggests a narrow focus on the militia in defining the right to bear arms.
The drafting history of the Second Amendment further bears out that narrow focus. The Framers could have explicitly drafted a broad right to bear arms, had they so intended; compare the First Amendment's command that "Congress shall make no law" with the explicit qualification opening the Second Amendment. If the drafters of the Bill of Rights had intended to include self-defense or hunting within the scope of the arms-bearing right, they could have included appropriate language. Bill of Rights author James Madison and the entire First Congress were well aware of alternative, broader formulations that did not link the arms-bearing right to the militia, and that explicitly listed self-defense and/or hunting as private purposes covered by the right to bear arms.[28] Yet they refused to adopt several such proposals offered by the Antifederalists and by the various state ratifying conventions.
Furthermore, we need not read the Second Amendment exclusively through the eyes of a small group of white property-owning males who lived in a world utterly different than our own.[29] Ours is a "Living Constitution," one that must be read against the backdrop of changing social circumstances. In the words of Justice Brennan:[Page 67]
The ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.[30] The gun lobby's broad-individual-right view falls apart in our time. The passage of two centuries has brought wholesale changes in the composition of the well-regulated militia,[31] and in the role of firearms in American society.[32]
B. "The Most Well-Settled Proposition in American Constitutional Law"
We must label the gun lobby's view that the Second Amendment guarantees a nearly unlimited right to bear arms for what it is ¾ a fabrication. [Page 68] But the broad view is not a fabrication only because it seems implausible in light of changed social circumstances. That expansive Second Amendment story is also a fabrication because it is not the law of the land.
In the wake of the only Supreme Court decision offering an extended analysis of the Second Amendment's scope, federal courts have invariably ruled that the Second Amendment right to bear arms applies only to those individuals using firearms in connection with their service in an organized state militia. An extraordinarily consistent body of case law has held that a variety of restrictions on private firearms ownership, use, and sales do not violate the Second Amendment, because such restrictions have no effect on the maintenance of a well-regulated militia ¾ the National Guard. As former Solicitor General Erwin Griswold once wrote: "[T]hat the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American Constitutional law."[33]
1. Supreme Court Case Law
In the 1939 case of United States v. Miller,[34] the Court unanimously approved the indictment of two individuals for transporting an unregistered sawed-off double-barrel 12-gauge shotgun in interstate commerce.[35] The Court found that there was no evidence to show that the weapon had "some reasonable relationship to the preservation or efficiency of a well-regulated militia."[36] The case's holding is unfortunately less than crystal clear. Miller presented an appeal from a quashed indictment; the Court had no record evidence in front of it, and simply declared that it would not take judicial notice of sufficient facts to demonstrate that the shotgun was useful to the militia.[37] But more significant than Miller's holding is the Court's discussion of the Second Amendment's "obvious purpose." The Amendment "assure[d] the continuation and render[ed] possible the effectiveness" of the militia contemplated in Article I, section 8, and "must be interpreted and applied with that end in view."[38] The Court subsequently made clear that the governmentally organized stateside National Guard, not privately armed citizens, is the contemporary equivalent of the Second Amendment's well- regulated militia.[39] [Page 69]
Gun-rights litigators and activists frequently characterize Miller as granting constitutional protection for all military weapons, because the case focused on the nexus between the weapon and the militia.[40] Under this reading, the Court's interpretation would have granted citizens the right to keep and bear bazookas, rocket launchers, and grenades.
But the Court went only as far as was necessary to dispose of the case before it. The Miller holding most plausibly means only that it is a necessary condition that a firearm be useful to the militia and an individual's service therein, not that military utility is a sufficient condition to grant constitutional protection. The individual using the firearm still must be doing so in the context of service in a government-organized (not independent) militia.[41] The Court did not say that the Second Amendment protected the use of military-type firearms for any other purposes, nor did it ask whether the seized shotgun might be related to nonmilitia purposes such as self-defense or hunting.
In a nineteenth-century case, Presser v. Illinois,[42] the Court damaged another central theme in the gun lobby's broad-individual-right story. In Presser, the defendant organized and led a parade of rifle-bearing members of a German nationalist organization without obtaining the permit required under the challenged Illinois statute.[43] That statute prohibited any group of men other than the officially organized Illinois voluntary [Page 70] militia from associating as a military organization.[44] The Court rejected the idea of a right to bear arms in order to organize independent armies or to prepare for insurrection against a potentially despotic government.[45]
This insurrectionist view of the Second Amendment simply made little sense in light of the militia's constitutionally commanded role of "suppress[ing] insurrections."[46] As one commentator has succinctly contended:
How can the militia be a collection of citizens with the constitution-[Page 71] ally guaranteed right to engage in armed resistance against their government if the Constitution itself grants Congress the power to call out the militia ["to execute the Laws of the Union [and] suppress Insurrections"?] The Constitution cannot view the militia both as a means by which government can suppress insurrection and as an instrument for insurrection against the government.[47]
Thus not only has the Court rejected the broad-individual-right view; it has also rejected any private right to bear arms for collective insurrectionist purposes.[48][Page 72]
The Supreme Court has consistently reaffirmed its narrow reading of the Second Amendment in various substantive due process challenges. Early on, the Court repeatedly rejected attempts to incorporate the Second Amendment into the Fourteenth; therefore the "right to bear arms" poses no restrictions on the states.[49] Gun-rights activists have argued that these decisions are meaningless because they came prior to the onset of modern incorporation doctrine.[50] But the Court has not seen fit to revisit those earlier decisions, refusing to grant certiorari in any of the cases dismissing Second Amendment challenges to state regulations on non-incorporation grounds.[51] The NRA recently chose not to press an incorporation claim before the Court after rejection in Fresno Rifle & Pistol Club v. Van de Kamp.[52]
Faced with a more modern substantive due process challenge in Lewis v. United States,[53] the Court found no fundamental right to bear arms, and applied only rational basis scrutiny in upholding federal restrictions [Page 73] on firearms ownership by convicted felons.[54] The Court noted that such restrictions "are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties."[55] Despite gun lobby claims to the contrary, the Court has said nothing to suggest that it has retreated from the narrow view of the Second Amendment expressed in Miller and Lewis.[56]
2. The Circuit Courts of Appeals
The narrow view of the Second Amendment is settled law in the federal courts of appeals. In Miller's wake, ten circuits have explicitly adopted a narrow reading of the right to bear arms,[57] and one other[Page 74] seems similarly inclined.[58] Every federal appellate decision since Miller has rejected the broad-individual-rights position and focused instead on whether use of a weapon was related to maintenance of a well-regulated militia. Every such court faced with the gun lobby's claim that Miller extends constitutional protection to all weapons with military utility has squarely rejected that assertion.[59]
By way of example, the Tenth Circuit has noted that "[t]he purpose of the second amendment as stated by the Supreme Court in [Miller] was to preserve the effectiveness and assure the continuation of the state militia."[60] Similarly, the Seventh Circuit reviewed Miller in the process of [Page 75] upholding the ban of the Village of Morton Grove, Illinois on handgun possession, and wrote: "Construing this language [of the Second Amendment] according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia."[61]
Two more recent cases demonstrate not only that this narrow-individual-right view prevails, but also that the courts of appeals are unwilling to entertain variations of Second Amendment concepts when those variations imply a broad individual right to bear arms. The decision of Farmer v. Higgins illustrated the bankruptcy of the "any-military-weapon" reading of Miller. The Eleventh Circuit brusquely dismissed as "without merit" Second Amendment challenges to a law that the NRA called "the first ban on firearms possession by law-abiding citizens in American history": a federal ban on private ownership of automatic machine-guns obtained after May 19, 1986.[62] Surely automatic machine-guns (weapons that keep firing once the trigger is pressed) have military utility. Indeed, the RNA's Firearms Legal Defense Fund's unsuccessful Petition for Certiorari challenged the Eleventh Circuit's decision by pressing this point and the any-military-weapon characterization of Miller.[63]
In 1992, gun-rights activists presented the Eighth Circuit with some variations on this theme in United States v. Hale.[64] They claimed that the Second Amendment offered a judicially enforceable collective right, or that it presented a fundamental individual right.[65] Interestingly, that court did not even feel the need to discuss the "collective right" versus "individual right" distinction, stating: "Whether the 'right to bear arms' for militia purposes is 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia."[66] Rejecting the challenge to a federal restriction on machine-gun ownership, the panel also observed that the claim of a "fundamental right to keep and bear arms . . . has not been the law for at least 100 years."[67]
Quite simply, subsequent to Miller's statement that the "obvious purpose" of the Second Amendment is to maintain the well-regulated militia, federal and state courts have upheld a panorama of record-keeping, regis-[Page 76] tration, dealer licensing, and felon-exclusionary firearms restrictions,[68] as well as universal bans on private ownership of both handguns[69] and machine-guns.[70] Courts have also consistently rebuffed the standard gun-lobby claims that the Second Amendment provides a right to bear arms in order to hunt[71] or to provide for personal self-defense.[72] Finally, arguments for a right to organize private militias have likewise fallen on deaf [Page 77] judicial ears.[73]
3. Letting Settled Law Lie
For more than fifty years, the Supreme Court has consistently refused to expound on Miller. The Court has denied certiorari in at least nine cases in which the lower courts relied on Miller to reject Second Amendment challenges.[74] More tellingly, the Court dismissed still another appeal for want of a substantial federal question.[75] Although orthodox understanding views a denial of certiorari as making no comment on the merits,[76] the Court's long-standing laissez-faire attitude indicates, at a minimum, a deep disinclination to disturb existing doctrine.[Page 78]
The Supreme Court's reluctance to review any Second Amendment case may, indeed, suggest even more than mere inertia or lack of interest. Peter Linzer has argued that "the orthodox view [regarding certiorari denials] is oversimplified, and in some cases, false."[77] His study of certiorari denials lends support to the theory that the Supreme Court has long approved, or at least not disapproved, the narrow understanding of the Second Amendment adopted by the circuit courts of appeals. Linzer notes that "a remarkable number of federal and state court opinions" find that "because of some special circumstance, a certiorari denial in a particular case indicated the Court's view on the merits."[78] Two of those "special circumstances" are important here: (1) "cases in which the Supreme Court had denied certiorari in a similar case in [the] face of a claim that the fact situation was governed by a still earlier precedent";[79] and (2) "a related category of cases in which the Court had denied certiorari despite the great importance and controversial nature of an earlier lower court holding or series of holdings identical to the one being made by the current lower court."[80]
The first of these circumstances takes into account the established certiorari "policy" of the Court, as embodied in Supreme Court Rule 10. That rule contains a list of factors that, "while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered"[81] when evaluating petitions for certiorari. The factor relevant to this discussion is:
(c) When a state court or a federal court of appeals has decided an important question of federal law which has not been, but should be, settled by this Court, or has decided a federal question in a way in conflict with applicable decisions of this Court.[82]
Linzer's view is, in effect, that a pattern of certiorari denials strongly suggests that the certiorari requirements have not been met with respect to a particular issue. This in turn leads to the conclusion that lower court decisions simply are not in conflict with the Court's precedent, as the Court itself views that precedent.[Page 79]
In the course of a half-century's worth of Second Amendment challenges, state and lower federal courts have presented the Supreme Court with decisions that restrict the scope of Miller as well as decisions that take wholly different paths. Upholding local handgun regulations, the District of Columbia Court of Appeals explicitly rejected the any-military-weapon view of Miller[83] and echoed "numerous other courts" in finding that "the Second Amendment guarantees a collective rather than an individual right."[84] In six other cases in which the Court denied certiorari, the First, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits each in turn explicitly or implicitly relied on Miller in embracing an exceedingly narrow vision of the Second Amendment.[85] To the extent that the Rule 10 factors are taken seriously, these decisions describing the Second Amendment in the narrowest terms seem neither to have broken ground unplowed by the Miller Court, nor to have reached a conclusion in conflict with the Court's understanding of Miller's reading of the Second Amendment.
The nine denied petitions for certiorari add up to provide the second set of circumstances that give meaning to certiorari denials: Taken together, they surely constitute "a related category of cases" rejected by the Court "despite the great importance and controversial nature" of these consistent earlier lower court holdings. As Linzer concludes, "When the Court several times refuses to review a consistent lower court position, there is certainly a stronger argument that the denials mean something than when the Court does nothing more remarkable than deny certiorari in one similar case."[86][Page 80]
The argument seems stronger still in light of the Supreme Court's per curiam dismissal of an appeal for want of a substantial federal question in Burton v. Sills.[87] In Burton, the Court refused to hear a gun-lobby-supported challenge to the New Jersey Supreme Court's 1968 holding that the state's gun control laws did not violate the Second Amendment. Adopting the narrow view of the Second Amendment, the New Jersey court found that the state's licensing requirements for manufacturers, wholesalers, and retail dealers, as well as permit and identification card requirements for purchasers, did "not impair the maintenance of the State's active organized militia" and thus were "not at all in violation of either the terms or purposes of the second amendment."[88]
The Court's summary disposition of Burton itself carries significant precedential weight ¾ such summary action binds both the Court itself [89] and lower courts.[90] A summary affirmance "without doubt" rejects "the specific challenges presented" to the Court for review.[91] The difficulty is, of course, determining the "precise issues presented and necessarily decided" by the lower court,[92] for it is only challenges to those issues that the Court rejects.
The gun-rights advocates in Burton raised several issues in their jurisdictional statement.[93] Of interest here is their Second Amendment challenge, which the New Jersey Supreme Court unfortunately rejected on two alternative grounds: (1) The court held that the Second Amendment was not incorporated into the Fourteenth;[94] and (2) even assuming such incorporation, the Amendment had a narrow, militia-centric scope, and [Page 81] thus did not preclude regulation of private firearms ownership.[95] Because the Supreme Court's summary affirmance did not specify which of these grounds it relied upon, the value of Burton is unclear. However, at the time of the Court's action, the incorporation debate was at its zenith.[96] With the contemporaneous trend toward more incorporation, the summary disposition of Burton suggests a Court willing to stick by its Miller decision.
Finally, there are several indications that the prospects are dim for a sudden reversal in this unified field. The gun lobby might take heart in the fact that it requires only four Justices' votes to obtain certiorari[97] ¾ four votes from a Court as politically conservative as the one led by William Rehnquist and prodded by Antonin Scalia. Yet the Rehnquist Court, willing (if not eager) to depart from stare decisis in the areas of habeas corpus[98] and civil rights,[99] shows no such signs on the Second Amendment. The current Court has continued the trend of certiorari denials in this area.[100] It is possible that even the NRA recognizes that the law is settled, for the NRA was unwilling either to petition for certiorari after the recent Ninth Circuit decision upholding the California assault-weapons ban,[101] or to challenge the Brady Law, on Second Amendment grounds.[102][Page 82]
The Miller Court's narrow reading of the Second Amendment has been well understood and well received by the lower courts, and the Supreme Court seems unwilling to disrupt that understanding. Miller's legacy is readily apparent: The Second Amendment is neither "embarrassing"[103] nor "terrifying."[104] It is, in fact, "obsolete."[105] The Second Amendment's operative guarantee is only "that the Congress shall not infringe upon the right of a state to maintain its militia and should not so disarm a citizen as to prevent him from functioning as a militiaman in the organized state militia."[106] Barring a complete abandonment of more than fifty years of settled jurisprudence, no gun control law restricting or regulating any aspect of private purchase, use, or possession of firearms should see invalidation on Second Amendment grounds.
II. THE CAUSES AND COSTSW OF CONSTITUTIONAL FALSE CONSCIOUSNESS
Gun-rights advocates employ two basic arguments against all gun control proposals:
(1) The proposal represents a misguided policy choice and is therefore inadvisable;
(2) The proposal violates the Second Amendment, and is therefore impermissible.
The first of these ¾ the policy argument ¾ revolves around three central claims, each profoundly misleading: (1) "Guns Don't Kill, People Do";[107][Page 83] (2) "Outlaw Guns and Only Outlaws Will Have Guns";[108] and (3) "There are already 20,000 state and national firearms regulations, and those cities with the strictest gun control have the highest crime rates."[109] Though [Page 84] exaggerated and misleading, these policy arguments are entirely appropriate topics for discussion. The gun lobby's second basic argument, on the other hand, materially misstates the meaning of the Second Amendment. As Part I explained, the NRA's constitutional trump card is a fake. The gun lobby's constitutional bluff has unfortunately convinced many citizens and public officials to fold their hands, or to play for smaller stakes. On a mission to thwart significant firearms regulation initiatives, the gun lobby has narrowed the scope of the gun control debate. Mutually reinforcing political, commercial, and quasi-religious forces have instilled in the American public the false consciousness of a sacred and sweeping individual "right" ¾ at massive social cost.
A. What Is the NRA?1. The Political Lobby
Wayne LaPierre, the NRA's[110] Executive Vice President, recently rallied the faithful with a cry of rededication to the organization's "singular purpose as guardian of the Second Amendment."[111] The NRA fulfills its self-conferred role as constitutional guardian by waging a nationwide struggle against virtually all measures that would in any way regulate or restrict access to firearms.[112] The NRA is a relentless single-issue lobby-[Page 85] ing machine, spending $22.4 million on such activities in 1993.[113] The [Page 86] organization's primary lobbying arm is the Institute for Legislative Action ("ILA"), which issues frequent "legislative alerts"[114] to NRA members and aggressively recruits and trains state and local gun clubs to be effective grass-roots lobbyists.[115]
The NRA often employs a bit of hyperbole ¾ what one author describes as the "Armageddon appeal" ¾ warning the 3.3 million NRA members[116] that, for example, gun control proposals are "the first step toward . . . a federal police force disarming the law-abiding populace."[117] And the alleged slippery slope hardly ends with gun confiscation. The mildest gun control proposal triggers warnings that "unless NRA members fail to [sic] become outspoken, highly-visible defenders of the Constitution, the Second Amendment will fall, followed by our other sacred freedoms ¾ religion, speech and press."[118]
The gun lobby's extremism has to some extent backfired in recent years, having led to repudiation by the law-enforcement community and sportsmen's groups,[119] as well as legislative setbacks at the state and national levels.[120] There are sustained rumblings of financial problems[121][Page 87] and internal dissension.[122] Yet it would be foolish to underestimate the [Page 88] power of the lobby once deemed the "Terminator of American Politics."[123] Indeed, the Spring of 1994 brought a federal ban on assault weapons, and reports of an NRA near-death. These reports appear sadly premature in the light of a cold Winter 1995 morning,[124] for in the wake of the midterm election, the NRA is poised to call in a contract with the new House majority and seek repeal of the 1994 legislation.[125][Page 89]
The coming battle promises to be ugly. The NRA has long demonstrated a willingness to wield any potentially effective weapon, no matter how crude. Politicians fear the NRA not only because its members often vote strictly on the basis of gun control stances, but also because the group is not afraid to take the low road. Playing on its membership's twin dreads ¾ the fear of crime and the fear of Big Brother's storm-troopers confiscating their weapons ¾ the NRA convinces its agitated and oft-misled members to engage in aggressive and highly effective grassroots lobbying efforts.[126] Gun-lobby leaders and their supporters have frequently misrepresented the provisions of pending legislation,[127] and have bullied[128] and [Page 90] smeared[129] enemies. When one adds the NRA Political Victory Fund's careful deployment of millions of dollars in annual donations to benefit friends and target enemies,[130] the NRA remains anything but a paper tiger.
2. Selling the Product
As a second role, the gun lobby works hard for the financial interests of the firearms industry, and of the NRA itself.[131] The NRA depends upon gun manufacturers, and gun manufacturers depend upon the NRA to function "as a pro forma trade association for the firearms industry," taking the heat in legislative battles, and "cloak[ing] all firearms controversies in the bullet- proof vest of constitutionality."[132]
NRA publications and events serve to trumpet new firearms and ammunition. For instance, the cover of the April 1994 American Rifleman exclaims "NRA PRESENTS TODAY'S NEW GUNS."[133] Most of the advertising dollars inside NRA publications come from the firearms industry,[134] and the American Rifleman's publishers are certainly ready to return the favor with positive editorial copy. Readers are frequently warned that criminals lurk just around each corner, so the readership must own guns for self-protection.[135] The NRA pulls no punches in [Page 91] warning its members that it must fear not only the hoodlum street thugs, but also Uncle Sam's "storm troopers."[136] Fear is a powerful sales device. "Fear sells guns."[137]
New markets ¾ particularly the youth and women's market ¾ are aggressively targeted by advertising and editorial copy, by firearm manufacturers' promotions, and by NRA political posturing.[138] Dozens of pages in each issue extol the virtues of new rifles, pistols, ammunition, and accessories. Negative reviews are exceedingly rare, because the NRA is an unabashed firearms-industry cheerleader. The cheers come despite the fact that gunmakers' profits come from products designed to deal death ever-more quickly and surreptitiously.[139] The cheers continue [Page 92] despite the fact that these necromerchants[140] often target their products for use by children[141] and criminals.[142][Page 93]
The NRA is concerned with its own business as well. The gun lobby's frequent financial self-promotion shows up in ads asking members to "Plan A Gift to NRA in Your Will." The NRA displays weapons at its annual meetings, provides NRA membership applications for manufacturers to include in weapons' packaging, and offers firearms as prizes in many of its mailings.[143] The gun lobby and the firearms manufacturers need each other. The direct link to firearms-dealing appears almost satirical in the NRA Round Up program, which has businesses ask customers to round-up purchase order amounts to the nearest dollar, contributing the excess change to the NRA.[144] A change collection jar for the local Ronald McDonald House this program is not. As one gun control advocate argues, "The common goal of this long-standing union is expansion of the domestic firearms market. Guns equal dollars ¾ increased sales for the industry and new members for the NRA . . . . For both the industry and the NRA, gun control is literally bad for business."[145]
3. The Firearms Fundamentalists
Like some other high-profile late-twentieth-century fundamentalist movements,[146] the NRA merges motives both religious and remunerative. The gun lobby's cavalier treatment of the constitutional text, and of the judicial consensus rejecting the broad view of the Second Amendment, must be understood as a quasi-religious movement, as well as simple political and marketing strategies. Former NRA Executive Vice President Warren Cassidy once said that people should view the NRA "as if [they] were approaching one of the great religions of the world." [147][Page 94] Some religious leaders oblige from their end. One Pensacola, Florida minister, Chuck Baldwin, actively preaches the firearms faith, giving sermons on "Christian combat." [148] The upper echelons of the NRA serve as the spiritual leadership of American firearms fundamentalism. As it is in many religious systems, "creative textual reading[ ]" is a hallmark of the NRA's theology.[149]
NRA members have absorbed their movement's canonical version of the Second Amendment. The fourteen hallowed words of the Second Amendment are apt to show up anywhere and everywhere in an NRA home, like a cross to a devout Christian. When members sip their first cup of coffee in the morning, many do so from mugs bearing the legend THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED. If they light up a cigarette with their coffee, chances are good they'll use a lighter adorned with those same words. And when they go out into the world, their pants may be held up with a belt whose buckle boldly proclaims: THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.[150]
Most NRA members believe passionately in the images of freedom and self-sufficiency they see embodied in gun ownership. Though the "right to bear arms" is important in itself, it is the bundle of emotional and psychological connotations of firearms ownership that stirs the passion of most gun owners.[151] Gun-rights advocates view unrestricted firearms ownership as the ultimate expression of "freedom," a word for which the gun preachers reserve their most prayerful tones.[152] Gun enthusiast Dave Twigg says that "[f]irearms represent freedom, a means for the individual to rise above his circumstances in terms of threats. An armed person has the means to protect their lives, their property and their loved ones."[153]
The images surrounding the "right to bear arms" center around freedom and power. Ever-threatening intrusions by criminal predators and despotic government forces must be resisted by any means necessary.[Page 95] Government is the real villain in either case. Playing a familiar American tune, the gun lobby offers a libertarian indictment of Big Government, on the one hand conjuring up visions of powerful gun-grabbing Washington confiscators knocking down the doors of law-abiding citizens.[154] On the other hand, the gun lobby bemoans the impotence of local police forces that cannot protect citizens from violent crime.[155] Guns offer freedom and power in this supposedly ever-more despotic and dangerous world.[156] Dr. Jona Perlmutter, Professor of Clinical Psychiatry at UCLA, believes that "[g]uns are a way of coping with inadequacy, helping us maintain a false image of power and strength. Larger guns only show us how much smaller we're feeling ourselves in the face of the societal changes around us."[157] Guns equal freedom and guns equal power, whether it is the fanciful notion of taking up arms against a regime seen as potentially or presently repressive, or the somewhat more plausible but risky hope of using a firearm to defend self, home, and family.[158]
To many Americans, guns also equal respect unfairly denied. A gun guarantees a measure of respect and power in a place that seems increasingly disrespectful and threatening.[159] For many children in the inner cities today, guns have become "something personal, a symbol of a terrible sort of power for a group that might not have felt very powerful in other [Page 96] facets of life."[160] Guns are viewed as guaranteeing their holders certain respect because guns are the tools for doling out instant punishment when someone acts in a disrespectful manner.[161] Fear of crime and personal insecurity riddle individuals from all socioeconomic groups. Hence, the lure of the gun as a symbol of respect borne of power crosses all demographic lines.[162]
The powerful emotional connections between firearms and freedom, and between firearms and personal potency, reflect the central role cast for guns throughout past and present American experience. In the retelling of history both distant and recent, guns are the stuff of myths, and gunmen, good and bad, are treated as larger-than-life figures. The pages of the NRA's American Rifleman reveal many nostalgic frontier images and the gun lobby's lingering love affair with the simpler days of the Wild West ¾ a time when the good guys always triumphed.
It is often said that America was "born . . . 'with the rifle in its [Page 97] hand.'"[163] In the earliest days of the nation, widespread ownership of firearms was a necessity. "Especially in the backwoods, the long gun was the instrument that put meat on . . . tables and defended . . . against the attacks of hostile native tribes. To help feed and protect their families, boys learned to shoot by the age of twelve."[164] But America's lingering love affair with the gun must be understood more in the context of historical mythology than meaningful history. "[L]ong after the weapon had ceased to be indispensable to domestic survival and nation-building, generations of Americans continued to embrace and glorify it as a living inheritance ¾ as a permanent ingredient of the nation's style and culture."[165] The late historian Richard Hofstadter asked:
Why is the gun still so prevalent in a culture that for the last century and a half has had only a tiny fragment of its population actually in contact with a frontier, that, in fact, has not known a true frontier for three generations.[166]
Perpetuating the frontier firearms legend is big business in all aspects of popular culture. Pop history on television and at the movies emphasizes the role of guns in taming the frontier. From 1903's The Great Train Robbery,[167] through Gary Cooper's classic performance in High Noon,[168] and to the present day, Wild West figures have always been celluloid heroes. Gunmen are celebrated whether they were lawmen (Wyatt Earp, Wild Bill Hickok, or Bat Masterson) or outlaws (Billy the Kid, John Wesley Harding, or Butch Cassidy and the Sundance Kid). The same pattern of glorifying gunmen, good or bad, continues in movies relating modern gun parables. Gun-toting G-Men under Elliot Ness are only slightly more glamorized than their 1920s-gangster counterparts like Dillinger and Capone.
Beyond the frontier imagery, the visual media of television and film constantly glamorize and even eroticize the gun[169] and gunmen. Guns themselves sometimes seem to be the central attraction.[170] Just as The [Page 98] Rifleman did for an earlier era of long-guns, shows like Miami Vice and the A-Team made stars out of high-tech semiautomatic weapons in the 1980s, sparking fascination for and interest in owning similar firearms.[171] More often the strong, sexy, and admirable stars are the gunmen. Tough guy, trigger-happy cops like Clint Eastwood's Dirty Harry are turned into law-and-order icons.[172] Vigilantes like the Charles Bronson character in the Death Wish movie series[173] became heroes of a middle class angry and frightened by rising street crime.[174] Bonnie and Clyde can be sexy pop heroes. So can gun-wielding random killers like Brad Pitt's toothbrush-chewing character in the film Kalifornia,[175] or Woody Harrelson's crazed "Mickey" in the film Natural Born Killers.[176] One recent Sylvester Stallone-Wesley Snipes vehicle, Demolition Man,[177] went so far as to ridicule the notion of a post-gun-culture world as one controlled by effeminate men with English accents and Japanese clothes, one offering little humor or sexual excitement.[178] And in a distressing twist on feminism, female stars have begun to fill similar shoot-em-up roles. Women prove that they can handle heavy firepower too; Bridget Fonda sports all manner of combat weapons in Point of No Return[179] and Geena Davis [Page 99] and Susan Sarandon get off a round for gun-toting feminism by shooting a would-be rapist and blowing up a sexist male driver's gasoline tanker in Thelma and Louise.[180] The music world increasingly plays the gun tune as well.[181]
While television, film, and song glamorize and eroticize, and thereby inculcate a pro-gun view into society, those media simultaneously desensitize the audience to the horrors of gun violence. They treat a national audience to thousands of murders and other acts of violence each year in action movies, television dramas, cartoons,[182] and true-crime news.[183] From Daffy Duck's uncanny ability to emerge from point-blank shotgun blasts with only scorched feathers, to the carefully choreographed bullet-ballets in big- budget action movie series like Lethal Weapon,[184] Rambo,[185] RoboCop,[186] and Die Hard,[187] each battle is more brutal in its comic-book intensity than the previous. Each bout of comic or carefully choreographed "gunplay" deadens our sense of horror at the brutality, and blinds us to the torn flesh and spilled blood that comes with each real gun injury.[188] Researchers agree that [Page 100]
[v]iolent imagery reinforces and encourages aggressive behavior in children already inclined to aggression; television and movie violence desensitizes the population as a whole to real-life violence; television and movie violence plays a role in criminal behavior, although poverty, drugs, gangs, child abuse and the availability of guns are more direct causes.[189]
The effects of these sounds and images should not be discounted. Inmates serving time on gun-related charges told Washington Post reporters that they "often tried to compare themselves to characters in a romanticized version of the Wild West."[190] The convicts said that "[s]hooting a gun was 'exciting'. . . . Shooting a gun was fun." A gun made them feel like John Wane.'"[191] One gunman claimed that his inspiration to shoot a Texas highway trooper was a "gangsta" rap tune by Tupac Shakur.[192] The eroticization of movie gunplay is also replayed in the streets: The inmates interviewed by the Post "compared shooting to sexual [Page 101] intercourse."[193]
Furthermore, for millions of Americans, worshipping firearms is a far more active process than mere passive absorption of the gun imagery that pervades the mass media. Rituals associated with the firearms faith include the devoted maintenance and display of antique rifles and pistols, collecting the minutiae of information on guns, and spending sleepless nights on the eve of the first day of deer season.[194]
Guns are often central characters in the rites of passage acted out by youngsters all over the nation, in both urban and rural settings.[195] For many kids, falling in love with the gun may begin with a glimpse of some powerful weapon in the hands of Rambo or Batman.[196] The romance quickly moves to the toy store, where many merchants display row after row of realistic firearms, everything from the popular "SuperSoaker 200" water gun to the "Combat Gear Electronic Gun" (with four different electronic sounds: "clip loading," "3 shot burst," "20 shot automatic," and "full action battle"), and the "X1 Recoil Blaster" (whose owners can "actually 'feel' the gun fire" with realistic recoil action, bright green pulsating light and robotic voice commands, including "fire, fire, fire"). [197] "[E]xperts who have studied the relationship between children and their toys say playing with fake weapons has no redeeming value and only desensitizes children to the shocking reality of crime and firearms." [198] Some kids start this desensitization process by making war with these all-too-real toys. Others need not wait that long to learn about guns. They can start when they begin to learn their "ABCs."[199][Page 102]
These gun-toting rites of passage from childhood are important. As a result, and like many religions, firearms fundamentalists depend on the inculcation of belief and rituals in youth. As the NRA officially recognizes: "The youth of America are our future. . . . [W]ithout their interest and involvement, there will be no gun ownership or hunting."[200] The NRA backs up that commitment with action: The Whittington Center Adventure Camps offer to teach youngsters, aged thirteen through seventeen, fundamental marksmanship skills and sports like rifle silhouette, high power rifle, trap, and skeet.[201] American Rifleman promotes "Youth Guns Today" in a feature story.[202] The NRA's Firearms Civil Rights Legal Defense Fund sponsors an essay contest for all elementary, junior high, and high school students "celebrating the Second Amendment as an integral part of the Constitution and the Bill of Rights."[203] The NRA sells a "Youth Coloring Book" ¾ David's First Hunt .
Firearms fundamentalism showers great praise on the faithful "us," and scorn on the heretical "others." "Us" is the good NRA member, and "them" is the lurking "other" of street criminals, a media perceived as anti-gun-owner, and a government portrayed as a collection of left-leaning gun-grabbers. New NRA members receive a patriotic "love-bombing,"[204] as they are welcomed into the fold of like-minded God-fearing and Constitution-loving folk, and are assured that they and all other NRA members are better than the rest of America.[205] This is a classic [Page 105] mixture of us-loving and other-loathing: our good Americans v. their bad Americans, our good Christians v. their bad Christians, our good families v. their bad families, and our good kids v. their bad kids.[206] The gun lobby uses this "us v. them" mentality effectively. Members are assured, via "personalized" mass mailings, that they are comrades in arms, intimate allies ¾ vital to an NRA leadership engaged in righteous struggle.[207]
B. What the Gun Lobby Has Wrought
Whether viewed primarily as a political lobby, an informal trade association, or an order of firearms preachers, it is clear that the gun lobby has been tremendously successful. Its victories in derailing gun control legislation vastly outnumber its recent failures. Much of the public has accepted NRA dogma as gospel, and firearms and related products sell very well. The gun lobby has successfully drawn narrow parameters around the gun control debate, has bottled up the vast majority of national legislation to regulate firearms, and has perpetuated the political, emotional, and commercial conditions necessary to maintain the wide availability of an almost unlimited selection of high-powered rapid-firing firearms.
1. Constitutional False Consciousness
The philosophical foundation of the NRA's entire political struggle is its Second Amendment sleight-of-hand. The gun lobby's misinformation campaign distorts the constitutional text itself. It is not "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," but rather " The right of the people to keep and bear Arms shall not be infringed." Official [Page 104] NRA products, from belt buckles to beer mugs, eliminate that troublesome introductory clause.[208]
Dishonesty also dominates the gun lobby's discussion of the judiciary's read on the Second Amendment. Gun-rights advocates argue not only that the Second Amendment should provide a broad, nearly absolute individual right to bear firearms, but that the Amendment does in fact guarantee all individuals a personal "right to bear arms" for all legal, private purposes. The gun lobby insists that the Second Amendment is an all-purpose barrier to virtually all gun control proposals.[209] This claim hardly squares with the exceedingly narrow judicial reading of the Second Amendment. As discussed in Part I, the courts have also squarely rejected the specific claims of gun-rights activists ¾ that the Second Amendment guarantees a right to bear arms for self-defense, for hunting, or in preparation for potential insurrection.[210] But gun lobby leaders either ignore or downplay the striking judicial consensus when speaking directly to their followers,[211] to the general public through the mass media,[212] or to academic audiences in law review pieces.[213][Page 105]
Viewing the Second Amendment as an absolute barrier to firearms regulation is like the assertion that the First Amendment's Free Speech Clause absolutely prohibits any speech regulations. To claim that the operative meaning of the First Amendment is that all forms of expression enjoy absolute protection is simply wrong. The gun lobby's tale of a sweeping individual right to bear arms for any legal private purposes is similarly wrong. If we define "legal certainty" as "predictability of judicial decision,"[214] then it is a legal certainty that the Second Amendment guarantees only the right to bear arms in the context of service in a state militia. The broad view has seen condemnation by former Solicitor General Erwin Griswold,[215] six former Attorneys General,[216] former Chief [Page 106] Justice Warren Burger,[217] and even the foremost proponent of the NRA's beloved "originalism" ¾ Judge Robert Bork.[218] Given this consensus, the gun lobby's story of the Second Amendment is law as intentional deception, not "law as integrity."[219][Page 107]
Although it is a "legal certainty" that the Second Amendment is an all-but-dead letter in the courtroom, that certainty fades as you travel beyond the courthouse steps. Out in the heartland, the "right to bear arms" resonates in the hearts and minds of a very vocal and active portion of the American public. Nurtured if not conditioned by the gun lobby's barely-challenged drumbeat of propoganda, these people believe in the "right" ¾ constitutionally or divinely ordained ¾ to bear arms against brutal thugs and feds. In today's America, that popular constitutional interpretation carries more weight that the clear judicial consensus.
This may strike some as an endearingly populist sense of legal meaning.[220] But it ignores the judiciary's supposedly primary role in constitutional matters. Dialogic legitimacy has been denied to those best trained to interpret the Constitution. In their place a single-issue pressure group ends up dominating the public discussion of a critical constitutional question.
During the 1993 hearings on the Brady Bill, leading gun control advocate Representative Charles E. Schumer (D-N.Y.) told one pro-gun lobbyist that "the [NRA] leadership . . . misleads its members and that is why we don't have rational gun control policy, and why you're getting weaker and weaker and weaker. You are so far over that no one believes you anymore."[221] Schumer's claim is supported by a number of surveys indicating that the general public, and even the NRA's own membership, increasingly views the gun lobby's leadership as unnecessarily extremist.[222] But Schumer is wrong if he actually thinks that "no one believes [the NRA] anymore." The gun lobby's constitutional misinformation campaign has successfully implanted the notion of a vast right to bear arms for all legal private purposes.
Most people do believe the NRA leadership when pro-gun activists raise the critical constitutional barrier and speak of a broad right to bear arms. The NRA has repeated its constitutional deception so often, and for so many years, that its fictional quality has been forgotten.[223] A late 1991 Los Angeles Times poll found that only thirty-nine percent of those responding felt that the Constitution should protect the right of all individuals to own guns, but that sixty-two percent of those surveyed believed [Page 108] that the Bill of Rights explicitly granted such a right.[224] Other surveys have documented a similar ignorance of the Second Amendment's narrow judicial interpretation.[225] Even among NRA members and employees there are quite a few who do not have any idea what the language of the Second Amendment even is.[226] "Primarily as a result of the NRA's efforts, the Second Amendment is the most misunderstood provision contained in the Bill of Rights."[227] One legislator, weary of the NRA's misinformation campaign, told his House colleagues that:
[T]he second amendment has been twisted. Its purpose and intent has been distorted and perverted by gun control fanatics whose view it is that guns may not be regulated or controlled in any way, and they have fooled us, hoodwinked the American people into believing that we cannot control guns. We violate the Constitution if we do so. The second amendment does not say anything like that, but they interpret it that way, and they have managed to convince very large numbers of intelligent people that any gun regulation is unconstitutional.[228]
Indeed, constitutional false consciousness has claimed fair-minded gun-lobby analysts like Osha Gray Davidson, and even ardent gun control activists like Handgun Control, Inc. presidents ¾ both Pete Shields and [Page 109] Richard Aborn have spoken of the mythical "right to bear arms."[229]
Gun-rights litigator Don Kates correctly employs the passive voice in contending that "[t]he individual right view is . . . accepted by a majority of the general populace."[230] Few Americans have the time or interest to read the relevant case law. Ignoring or mischaracterizing the consistent case law arrayed against its position, the gun lobby thumbs its collective nose at the judiciary, and at the significance of the judiciary's role in interpreting the Constitution.[231]
With its incessant assertion of a broad individual right to bear arms hoodwinking much of the public, the gun lobby has successfully slipped a false "trump" card into the political deck,[232] a bogus "rights" ace deemed more powerful than any vision of the common good.[233] The ultimate [Page 110] insidious effect of the gun lobby's constitutional distortion is the creation of an artificial tension between rights and the common good by claiming a phantom right to keep and bear firearms. Like much of the simplistic, exaggerated "rights talk" common in modern-day America, the gun lobby's "stark, simple rights dialect puts a damper on the processes of public justification, communication and deliberation upon which the continuing vitality of a democratic regime depends. . . . It impedes creative long-range thinking about our most pressing social problems."[234]
The gun-rights advocates' portrayal of the Second Amendment as conferring a broad individual right is a monumental myth. It is a libertarian pipe dream. It is a constitutional deception designed to further a political agenda. It is an argument about what the Second Amendment should guarantee ¾ not a reflection of what it does guarantee in any legally meaningful sense.
2. Legislative Obstruction
It took seven years and the expenditure of an extraordinary amount of political capital to pass the Brady Bill's baby step of a national waiting period for handgun purchases.[235] The successful 1994 battle to ban a [Page 111] modest set of assault weapons was nearly derailed by NRA lobbying, and faces far greater peril in the now-Republican-controlled Congress.[236] As six former Attorneys General have written: "The nation can no longer afford to let the gun lobby's distortion of the Constitution cripple every reasonable attempt to implement an effective national policy toward guns and crime."[237]
The President of the American Bar Association recently told reporters that the myth of a Second Amendment "fire wall" against "rational gun regulation . . . is so deeply rooted that as our staff have called in support of gun legislation we even had more than one congressman, who is inclined to support greater regulation, comment that he just had a problem with going against the Second Amendment."[238] The gun lobby has been raising the Second Amendment's supposedly red flag at every piece of gun control legislation for at least thirty years.[239]
Weary of the gun lobby's constitutional distortion, Representative Major Owens (D-N.Y.) has gone so far as to author a repealer of the Second Amendment.[240] Representative Owens said that he introduced the proposed repeal
because the second amendment has been distorted and is often misquoted to mislead the American people to believe that because the second amendment exists we should not and we cannot regulate the manufacture, the sale, and the distribution of guns in the United [Page 112] States. As a result of the notion being promulgated that we cannot regulate the sale and distribution and manufacture of guns, we have a paralysis by legislators across the country and by the Congress. . . . Polls have clearly shown that 75 to 85 percent of the people want some form of gun control, but we do not have gun control, except to a very limited extent, because a small group of intense gun fanatics have perverted the democratic process through threats and intimidation of any public figure who dares to speak for and vote for what the overwhelming majority of the people want.[241]
Representative Owens's proposal is essentially a facetious one, born out of his frustration with the gun lobby's Second Amendment misrepresentation. But repealing the Second Amendment is a red herring that pro-gun scholars have adopted.[242] Ostensible gun control proponents have repeated the need for such action.[243] The notion is as constitutionally unnecessary as it is politically infeasible.[244] In large part because of the gun lobby's constitutional smokescreen, the aggressive measures that would logically save lives are not even on the agenda.
3. Perpetuating Conditions of ViolenceThe constitutional barrier constructed by the gun lobby, the marketing of guns and their images, and the doctrinal inflexibility of firearms fundamentalism have been significant factors contributing to America's unparalleled level of gun violence. Although he perhaps inadvertently repeated the gun lobby's misleading rights incantation in doing so, President Clinton hit the nail on the head when he suggested that the country is fixated on the right to bear arms ¾ so fixated that we are unable to think about the reality of life that millions of Americans face on unsafe streets, under conditions that no other nation has permitted to exist.[245][Page 113] As the Chicago Tribune has editorialized: "By affording extraordinary legal and political protection to guns, this country suffers homicide and weapon-injury rates that far exceed those of other industrialized nations. Young American men face odds of being murdered that are 4 to 36 times higher than those in other developed countries."[246]
In erecting a bogus constitutional barricade against all gun control efforts, by insisting on unrestrained access to all firearms for all "law-abiding" Americans, the NRA has aided and abetted our national bloodletting. The gun lobby has perpetuated societal conditions that have seen more Americans die during the past twenty-five years in gun-related murders than were killed in the Vietnam War, the Korean War, and World War I combined.[247]
Despite these obvious social costs, many Americans seem to believe the gun lobby's proffered notion that the "right" to bear arms acts as a trump against any gun control legislation, even if that legislation might benefit the common good by saving lives, reducing the national toll of death and dismemberment, and reducing firearm-related health costs.[248] But there is no trump card in the deck. The collective national decision to maintain easy access to virtually unlimited quantities of high-powered firearms is, in reality, a simple cost-benefit analysis.
The gun lobby's moral culpability stems from its roles as preacher of false Second Amendment gospel, as commercial partner and promoter for an industry that sells products designed to kill, and as the strident political defender of a legal system that permits virtually unrestrained access to unlimited quantities of the most dangerous means of destruction. These roles have combined to produce a toll of over 35,000 killed every year and hundreds of thousands more raped, robbed, and assaulted in firearms-related violence.
C. The Evil That Gun Men Do
Aside from its cheerleading for a firearms industry that often caters to [Page 114] criminals and others bent on using their weapons to kill or damage fellow human beings, the gun lobby's legislative strategy has directly created an unregulated market in which "criminals, terrorists, fanatics and unstable people" can arm themselves.[249] Lee Harvey Oswald purchased the rifle used in the assassination of President Kennedy through an advertisement in the back of the NRA's American Rifleman.[250] Eric Houston wore his NRA cap as he killed four and wounded ten during a bloody rampage and eight-hour standoff in his old high school in Yuba County, California.[251] Some gun-rights activists have, in a patriotic frenzy, resorted to threats and actual violence against opponents and perceived traitors.[252][Page 115] Paul Walling's threat to shoot President Clinton and Attorney General Reno "for what they have done to the American people by trying to take guns away from them"[253] is only one example of the violence that gun-rights extremists have threatened or carried out.[254] Francisco Martin Duran's 20 to 30 rounds that raked the White House are only the ultimate symbol of the gun activists' rabid hatred for the gun-grabbing feds. [255]
One insidious byproduct of this ultra-alienated mentality is a lingering scent of racism in the gun lobby's ranks. That aroma is detectable in the implicit cost-benefit analysis of the gun lobby's opposition to "assault weapon" bans: The pleasure of more efficient or pleasurable hunting and target competition weapons is seen to outweigh the hundreds of lives (mostly of persons of color in the inner city) lost to semiautomatic gunfire. The aroma reaches it rankest levels when NRA leaders display apparent indifference to the death and suffering of "others" of color. Consider this letter from Paul Blackman, the NRA's Research Coordinator, explaining away the extraordinary level of gun violence in our cities:
With a gun-related homicide rate of 144 per 100,000 population for [Page 116] inner-city black male teenagers ¾ compared with 21.5 for whites, which Federal Bureau of Investigation Supplementary Homicide Reports would suggest means about 10 to 12 for non-Hispanic whites ¾ the problem affects those already unlawfully acquiring and using guns.[256]
This ostensibly sterile statistical analysis of "the problem" not-so-subtly reveals the gun lobby's racist assumptions: that (1) all, or at least most, nonwhite children and teenagers who die are criminals ("those already unlawfully acquiring and using guns"); and (2) we should discount this "cost" to society because the lives of these children of color are apparently worthless, or, at best, worth less. These assumptions are morally reprehensible in their chilly dismissal of the deaths of "bad" kids who get caught up in the lucrative drug trade. These assumptions are factually inaccurate, because they turn a blind eye to the hundreds of utterly innocent children of color slain and injured each year by "random gunfire."[257]
The NRA is an overwhelmingly white organization,[258] and one wonders how much to make of the radically divergent demographics between NRA membership and victims of gun violence. In the wake of the Los Angeles riots, the NRA sought to exploit racial fears by placing inflammatory ads in magazines with primarily white readerships, ads featuring color photos of black rioters.[259] The NRA has also spent millions on "CrimeStrike" ads, to spread a recently emphasized get-tough-on-crime [Page 117] message.[260] American Rifleman carries a regular ad for German war paraphernalia. More extremist gun-movement publications contain classified advertisements for "Nazi, Klan, S.S., Confederate & Pro-Gun" memorabilia, "Dolf Hitler" and Eva Braun teddy bears, and Hitler 100th anniversary beer steins.[261] The gun lobby's racism born of alienation is just another form of the fear employed to rally the faithful, to stir political activism, and to sell the product.
III. DERELICTION OF DIALOGIC RESPONSIBILITY
At the signing of the long-embattled Brady Bill in November of 1993, President Clinton stated that "a part of the life of millions of Americans . . . [has been turned] into an instrument of maintaining madness."[262] That madness is our gun-saturated culture in which one American is murdered with a firearm every thirty minutes.[263] A parallel madness, to which the President himself contributed, is the collective false consciousness surrounding the alleged "right to bear arms."[264]
Thus even as the President cheered our first step towards reducing the insane levels of gun-related death and injury in our society,[265] he reinforced the delusion surrounding the Second Amendment. Standing tall in the bully pulpit, flush with all the communicative power and responsibility as the nation's leader, the President came up short. As he and other elected officials have done so frequently in the past, Bill Clinton failed in his duty to articulate an accurate constitutional vision of the Second Amendment.
The President was not alone in his dereliction of duty. The New York Times simply paraphrased the President's reference to the mythical right to bear arms without further comment.[266] The print and electronic media fell short of their journalistic responsibilities to report the facts about the right to bear arms fully and accurately, and failed to contribute to an informed citizenry, as they so often have.
Members of the legal academy failed as well. Faced with prominent [Page 118] public reference to a phantom constitutional guarantee, not one legal scholar raised a reported objection to the President's misstatement regarding the supposed "right" to buy a handgun. This is hardly an isolated oversight. Despite their professional obligation and opportunity to communicate, law professors as a group have shown virtually no inclination to counter the constitutional false consciousness on this issue of vital public concern.
Political leaders, members of the media, and legal scholars all have a professional duty to contribute actively and accurately to the community's dialogue on matters of public concern. This dialogic responsibility is inherent in the American political scheme of representative and participatory democracy, and is reflected in the codes of professional ethics for journalists and law professors. The expertise, respect, and influence these groups have, as well as the effective means of mass communication available to them, are the primary sources of this dialogic responsibility. This responsibility also stems from the needs of the audience ¾ the electorate, the reading and viewing public, and the nonlawyers who receive a great deal of the raw information required to formulate an "informed" opinion from their political leaders, journalists, and legal priests and priestesses.[267]
All three groups have remained strangely silent. When they have spoken at all, they have generally echoed the gun lobby's chorus concerning "the right to bear arms," without mentioning the judicial consensus rejecting that expansive view. Although it is perfectly natural and acceptable for pro-gun-rights elected officials, media commentators, and scholars to argue that the Second Amendment should be read to protect all private firearms ownership, a dereliction of dialogic responsibility occurs when they when they claim that the Second Amendment does provide broad constitutional cover for gun owners. As Part I argued, this is simply a misstatement of the Second Amendment's operative meaning. By ignoring the settled case law that adopts a narrow view of the Second Amendment, politicians, journalists, and legal academics have misled the public and marginalized the judiciary's essential task of constitutional interpretation. After all, "[l]egal precedents matter. Or they should. On an issue as publicized as this one, they become much less significant when so few people know that they exist."[268][Page 119]
A. Political Leaders
1. Political Leaders' Dialogic Responsibility
Politics must be a dialogue if it is to reflect the underlying participatory values of our representative democracy.[269] Honest communication with the electorate and collective deliberation regarding major issues are necessary components of the American political system.[270] Open dialogue ensures citizens sufficient information to make intelligent contributions to the political debate, whether direct ( e.g., contacting representatives, responding to public opinion surveys, participating in public meetings and talk radio shows, or writing letters to newspaper and magazine editors)[271] or indirect ( e.g., donating time and money to political campaigns and advocacy groups, or voting itself). At a minimum, honest and thorough communication from elected leaders to their constituents is required to facilitate informed decisions in the voting booth ¾ the moment when the electorate (or at least some portion of it) engages in the lowest common denominator of participatory politics.[272]
As the popularly chosen "voice of the people" and wielders of significant power to chart the nation's course, congresspersons and the President bear primary responsibility for establishing the agenda for our national dialogue on matters of public concern.[273] With both ample staff [Page 120] support and wide media access, elected national officials have the opportunity to comment intelligently on most issues, and the communicative power to guarantee that those comments will be heard and read. As Mary Ann Glendon has argued, "[L]egislators need to be more conscious of the radiating pedagogical effects of their activities in a law-saturated society."[274]
Delimiting viable political options often requires constitutional contemplation. As our nation's lawmakers, members of Congress have a special duty to consider the constitutional implications of proposed and potential legislation,[275] and to communicate their views of those implications to their constituents, who must ultimately evaluate whether representatives' choices are appropriate.
When faced with a troubling issue in which the range of potential legislative solutions has been challenged on constitutional grounds, legislators have a duty to determine proactively the range of constitutional options for dealing with that issue. Because the Constitution both serves as our civic scripture [276] and provides the lines within which executive and legislative branch officials must paint, our representatives have a professional responsibility to address publicly constitutional claims that seek to rule out contemplated reforms.
Of course, self-preservation (rather than statesmanship) is often the name of the political game. Reelection-oriented politicians are often reluctant to take clear stands on proposals controversial enough to merit constitutional reflection. But as Stephen Macedo warns, "fully public justifications on controversial issues . . . will often be impossible to come by ¾ we must reconcile ourselves to that. While it may fail to achieve a construction that all reasonable people can agree upon, public reflection can help us identify and rule out unreasonable options." [277] Public reflection by our elected representatives can also help us understand and identify the scope of all reasonable constitutional options.[Page 121]
2. Political Leaders' Dereliction of Dialogic Responsibility
Unfortunately, the federal legislative branch has tended to avoid deep thinking about or careful articulation of constitutional issues.[278] This unfortunate tendency, which the Constitution does not contemplate,[279] has contributed to the electorate's ignorance about constitutional questions. Paul Brest notes that "because our representative institutions do not systematically address constitutional issues and because citizens have no occasions to participate in constitutional decisionmaking, popular talk about constitutional issues is often ill-informed and poorly reasoned."[280] Similarly, Mary Ann Glendon worries that the "greatest obstacle to political renewal under present circumstances may not be an [inert people] so much as the failure of persons in positions of leadership to provide models by personal example and to work actively to create opportunities for discussion.[281]
The dysfunctional gun control discourse is a sad paradigm of this cycle of ignorance. Our national elected officials have failed to facilitate any intelligent conversation regarding the Second Amendment. Rather than clarifying matters, the vast majority of our national legislators have either remained silent on the issue or perpetuated the constitutional false consciousness. Collectively and individually they repeat the empty refrain about the "right to bear arms" and claim that the Second Amendment [Page 122] prevents them from adopting a wide array of measures to address gun violence. Institutional pronouncements typify this. For example, the Firearms Owners' Protection Act of 1986[282] began with the precatory statement that "[t]he Congress finds that . . . the rights of citizens . . . to keep and bear arms under the second amendment to the United States Constitution . . . require additional legislation to correct existing firearms statutes and enforcement policies."[283] A 1982 report of the Senate Judiciary Committee's Subcommittee on the Constitution went even further. Under the chairmanship of ardent gun-rights proponent Orrin Hatch, the subcommittee issued a one-sided, misleading document officially adopting the gun-lobby- approved view of the Second Amendment.[284] The report included a strident preface by Senator Hatch, contending that the right to bear arms is the "right most valued by free men."[285] The report's exceedingly disingenuous "Case Law" appendix began by offering a strictly gun-rights slant on the few Supreme Court cases construing the Second Amendment, then proceeded with summaries of twenty-one gun-lobby-preferred nineteenth- and twentieth-century cases ¾ all from state courts. No lower federal court cases were noted. Nor did the report acknowledge the consensus throughout the circuits, or the lower courts' consistently narrow reading of Miller. If the report has the feel of having been written by the gun lobby, that is because it effectively was: The authors included two prominent gun- rights advocates ¾ Stephen Halbrook and David Hardy.[Page 123]
Individual legislators have offered innumerable inaccuracies, ranging from labeling the Brady Bill a "bullet hole in the Second Amendment"[286] to asserting a constitutional right to hunt with a firearm.[287] But invocation of the supposed Second Amendment "right" to bear arms for all private purposes has not only come from the lips of traditionally pro-gun legislators,[288] but also from some pro-gun-control corners. During a 1990 ABC program on the gun control issue, long-time NRA opponent Senator Howard Metzenbaum assured one woman that he would "protect [her] right" to continue using guns in sporting competitions.[289] Even a new arrival to Washington, pro-gun-control Senator Patty Murray, also refers uncritically to the constitutional right to own guns.[290] That gun control advocates fall into the trap of asserting that they do not seek to undermine anyone's "right" to possess firearms highlights the scope of our constitutional false consciousness.[291]
Our legislators are not the only political leaders who have failed to challenge the gun lobby's constitutional deception. President Clinton, though a supporter of enhanced gun control measures and "a gun owner's worst nightmare" (according to the NRA)[292] is the latest in a line of White House residents who have endorsed or referred uncritically to the [Page 124] "right to bear arms."[293] In addition to his misstatements at the Brady Bill signing,[294] Clinton has made a number of other reported references to the "right to bear arms."[295] Although the President is probably not endorsing the gun lobby's constitutional claims, he has made no reported mention of the case law confining that "right" to the narrowest of circumstances.
Why are presidents and the vast majority of legislators unable or unwilling to challenge the erroneous conventional wisdom regarding the [Page 125] Second Amendment? It may be a matter of political calculation. Setting the record straight on the Second Amendment probably offers little payoff at election time. In addition, the thought of directly challenging the gun lobby's central credo surely strikes fear in the hearts of many politicians already leery of the gun lobby's well-documented penchant for vicious retaliation.[296] Finally, the reluctance might be attributable to the very false consciousness that continued silence creates and reinforces. Presidents too are environmentally and emotionally preconditioned to accept the constitutional false consciousness propounded by the gun lobby.[297]
To his credit, President Clinton has promised to veto any attempted repeal of the 1994 ban on assault weapons.[298] But he fails to foster a wider debate or promote understanding of the gun lobby's bedrock constitutional claims. Although "[t]here may be good political reasons, in some circumstances, for coyness or even deception about what hangs on the resolution of a highly charged controversy,"[299] the tendency to avoid conflict on vital issues in order to avoid potential political damage is disheartening and dishonest.[300] And disabling. The presidential and legislative reluctance to explain that constitutional rights are not at stake in the gun control debate disables the public's ability to understand and evaluate its government's handling of this vital political question.
B. The Media
1. The Media's Dialogic Responsibility
The Fourth Estate's primary responsibility is to serve the entire community by disseminating accurate information that enables the reading, viewing, and listening audience to make informed judgments on issues of public concern. For at least three decades, the central principle underlying the First Amendment has been the support of an "uninhibited, robust, [Page 126] and wide-open" interchange of news and opinions on public issues.[301] The press is essential to this because "[w]ith the remoteness of most governments, state or federal, the press is the only continuous and reliable means by which people are informed about governmental actions and policies as well as possible alternatives."[302] The ability of the press effectively to explain existing policies and viable alternatives "determines not only the level of citizens' understanding of what their government is doing, but ultimately their ability to participate in the decision-making processes open to them."[303] In addition, political leaders also rely on the press to provide them with information and analysis vital to their official duties.[304]
Journalists are expected to uphold a specific professional duty to provide correct and comprehensive information about the issues of the day. The Code of Ethics of the Society of Professional Journalists proclaims that "[t]he public's right to know of events of public importance and interest is the overriding mission of the mass media. The purpose of distributing news and enlightened opinion is to serve the general welfare."[305] To meet that mandate, the media must report information not just accurately piece-by-piece, but completely. The journalist's Code of Ethics insists that "truth" is the media's ultimate goal and admonishes reporters that "[t]here is no excuse for inaccuracies or lack of [Page 127] thoroughness."[306]
In an age of too much information and too little time, citizens rely on the media to provide them with the raw material required for informed political participation. As Justice Powell once wrote:
An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government.[307]
Justice Powell was certainly correct that the print and electronic media are the means by which most citizens receive the bulk of the raw materials they need to inform their opinions on issues of the day. America is home to 1556 daily and 7437 weekly newspapers,[308] as well as 1519 television and 1697 radio broadcast outlets[309] ¾ information sources that reach into virtually every home in the nation and are a dominating influence on public opinion. This power of delivery underscores the media's weighty dialogic responsibility to "educat[e] the public"[310] and to enable citizens [Page 128] to participate in informed political debate and decisionmaking.[311] This power of delivery gives the media a significant role in setting the public agenda: "[W]hile it is not possible for the media to tell the population what to think, they do tell the public what to think about."[312]
2. The Media's Dereliction of Dialogic ResponsibilityFormer Senator Robert Kasten once lauded the First Amendment's protection of a free press because "[t]he free flow of information ensures that our citizens are fully informed about the issues of the day . . . and it ensures that misrepresentation can be uncovered in the give and take of full and robust debate."[313] Members of the electronic and print media have, however, generally failed to perform these tasks when reporting on the constitutionality of gun control proposals. Although the NRA may well be correct when it frequently complains that the media tends to portray the gun lobby in a negative light,[314] the major media's discussions of the Second Amendment typically adopt the NRA's interpretation uncritically. The ability of the press to educate the public and demand a full and fair accounting of public officials depends upon "the depth to which [the press] probes, the clarity with which it describes, the logic and analysis upon which it insists, and the fairness and objectivity of its review."[315] The media's shallow firearms-policy stories, however, almost inevitably refer to the supposed clash between the gun control proposal du jour and the Second Amendment's hallowed "right" to bear arms.
It is even harder to find any press discussion of the narrow judicial interpretation of the Second Amendment. Reporters fall into the same trap as most politicians, describing the Second Amendment as consisting of a broad- sounding but undefined "right" apparently cherished by and guaranteed to all good Americans. Media analyst Ben Bagdikian observes that the press is "[f]ar more effective in creating public opinion . . . [i]n the pursuit of events or ideas until they are displayed in depth [Page 129] over a period of time, until they form a coherent picture and become integrated into public thinking."[316] It seems only natural that the audience would adopt an erroneously expansive view after years of reading and hearing one story after another referring blindly to the Second Amendment's "right to bear arms."
A review of the newspaper, magazine, television, and radio transcripts contained on the LEXIS News Library reveals a pattern of inaccurate and misleading references to the constitutional concept of the "right to bear arms." In seventy-six percent of the stories, the media offered unqualified references to the "right to bear arms" or explicit endorsements of the notion of a broad individual right to bear arms.[317] Sometimes the misstatement comes in the form of a reporter's direct assertion that the Second Amendment guarantees "the right to bear arms," as in the following examples from the San Francisco Chronicle and St. Petersburg Times, respectively:
Although the right to bear arms is protected by the Constitution and is felt at a primal level by many who own pistols and shotguns, Americans continue to voice overwhelming support for congressional action on gun control legislation, a new Gallup Poll has found.[318]
I'm tempted, even on Independence Day, to say let's just ban handguns. For every article I read about some law-abiding person effectively defending himself with a gun, I must see 15 about senseless murders. Killings by tempestuous people who might have been content to pummel their victims, except for a gun. Pulling the trigger was so quick and easy. And so irreversible. But gun possession is protected by the Constitution.[319][Page 130]
Television journalists are often guilty of similar inadequate reporting, as evidenced by these excerpts from ABC's World News Sunday and Nightline:
[M]ore radical measures have been suggested ¾ registration of all firearms, even repeal of the constitution's second amendment, the right to bear arms.[320]
In 1993, religious arguments are becoming not only more and more political, they're becoming more and more violent, making some people wonder if not just the Second Amendment but First Amendment protections may have become too dangerous to sustain. Others, of course, insist that crimping those protections in any way could be the most dangerous political cut of all.[321][Page 131]
Sometimes the inaccurate impression comes not from a reporter's direct assertion, but from a gun-rights activist's deceptive claim that remains unchallenged. For instance, the Gannett News Service picked up this item regarding the NRA's 1993 convention: "For the benefit of NRA stalwarts [Rush] Limbaugh declared his love for the Second Amendment, which guarantees the right to bear arms."[322] Gannett did nothing wrong by reporting a speech in which Limbaugh claimed that the Second Amendment protects a broad right to bear arms for all law-abiding citizens. The wire story is nevertheless inaccurate, and perpetuates false consciousness, because it does not explain that Limbaugh and the NRA merely asserted this interpretation, and that courts have rejected that view. Though the variation may seem subtle, it makes all the difference whether one reports an asserted description of constitutional meaning or instead recounts that description as if it were valid.
Quite frequently, a newspaper merely fails to describe the Second Amendment's judicial landscape, even when the story in question cries out for some sort of case-law summary. For instance, in 1994 the New York Times ran a story about Florida panhandle communities that were establishing citizen-wide militias as a means of circumventing any national gun control. The reporter never noted the judiciary's focus on precisely such militia-membership as the sine qua non of Second Amendment protection.[323]
And the press goes even beyond mere omission. "Tests" designed to increase constitutional comprehension affirmatively offer vague and inaccurate descriptions of the Second Amendment. For instance, a Newsday quiz for student readers recently inquired:
If you were a founding father or mother meeting today, would you vote for or against the Second Amendment's right to bear arms?[324]
United Press International once offered its subscribers a constitutional test for adults, which posed the following unedifying question and answer:
[Q:] What amendment guarantees the "right of the people to keep and bear arms"?[324][Page 132]
[A:] The 2nd Amendment.[325]
These tests continue to omit relevant information regarding judicial views of the Second Amendment, but then add the element of teaching ¾ the media taking upon itself the task of educating. Sadly, a purported lesson merely exacerbates the reader's misinformation and confusion.
Why has the media failed so miserably to provide an accurate and sufficiently thorough Second Amendment narrative?[326] Several plausible reasons come quickly to mind. The first explanation might see nothing more than a combination of space limitations for, and laziness by, reporters and editors. It takes fewer column inches or air time to tell, and less effort to research and write, a story that simply repeats the pat phrases seen in every other gun control story.
A second reason might be traced to the bottom-line thinking that has infected much of the media with "tabloid fever" in recent years. Eager to sell papers and to maintain viewers and listeners for their loyal advertisers, media outlets increasingly focus their attention on the heat and not the light of any given story.[327] Third, the unquestioning regurgitation of the gun lobby's "right to bear arms" mantra may reflect many journalists' inclination to protect individual liberties of all kinds: even the illusory ones. An unspoken and perhaps subconscious fear of some in the media may well be: "If they go after the Second Amendment, the First Amendment is next on the list." Finally, the problem may simply be ignorance of the relevant case law.
None of these reasons can excuse the media's informative inadequacy. Draped in First Amendment protections whose primary purpose is to [Page 133] protect and promote "an unfettered interchange of ideas for the bringing about of political and social changes,"[328] the media has instead contributed to decades of political near-paralysis by uncritically reciting the same old Second Amendment song.
C. Legal Scholars
1. Legal Scholars' Dialogic Responsibility
Like the media, scholars of all varieties serve an important "informative function" in our political system.[329] The First Amendment's protection for academic freedom saves scholars from "laws that cast a pall of orthodoxy over the classroom,"[330] but it also imposes First Amendment responsibility to take part in the national colloquy on issues within the scholars' areas of expertise.[331] Scholars have this dialogic responsibility in part because they hold a position that allows them to develop their expertise,[332] in part because society accords them a special respect and status,[333] and in part because professors ¾ like politicians ¾ can get their names and notions in the papers and on television.[334] Compared to the average citizen, scholars have relatively easy access to the means of mass communication.[Page 134]
The scholar's typical tripartite duties of teaching, scholarship, and community service suggest an ethical responsibility to "refine, extend, and transmit knowledge" not only within the classroom, but to the rest of the community, a professional duty recognized by the American Association of Law Schools ("AALS").[335] Despite a frequently insular character, the greatest values of legal scholarship are those offered to the greater community: solving or at least addressing the "myriad problems of the world,"[336] and contributing to the development of an electorate well informed of those problems. Given the professional opportunity to acquire and transmit specialized knowledge, law professors bear some responsibility for providing the people and political leaders with both accurate information and carefully considered opinion regarding the legal issues affecting vital concerns of the day.[337]
Legal scholars have a particularly vital informative role to play in a nation in which the line between law and politics is exceedingly thin, and that has constitutionally drawn limits for feasible legislation. Knowledge of the law, and constitutional law in particular, is perhaps the most valuable coin of the political realm. As Sanford Levinson has noted, "Constitutional law provides a public vocabulary absolutely essential to [Page 135] understanding the nature of political discourse within our society."[338] Legal scholars must bring their learned and often respected voices[339] to bear on the political dialogue ¾ and to the people ¾ honestly explaining the constitutional parameters surrounding politically controversial issues.[340] Our secret constitutional decoder rings give legal scholars special powers ¾ and responsibilities ¾ to upgrade the quality of dialogue in many political debates.[341]
The insistence that scholars speak the "truth" is admittedly problematic, given the rampant relativism of our post-modern world and the marginal respect that the legal system's truth-manipulating professional ethic accords to any remotely objective sense of "truth."[342] Nonetheless, speaking the truth is an ethical and professional responsibility shared by all legal scholars. The relevant AALS ethical statement for law professors insists that the "scholar's commitment to truth requires intellectual honesty and open-mindedness."[343] Anthony Kronman writes that "every scholarly endeavor, no matter what its subject, aims to state something true regardless of how far short of this goal it actually falls . . . . The end of scholarship is the discovery of truth and the promotion [Page 136] of knowledge."[344]
The ultimate conversational obligation of the scholar is not just to speak, but in the words of Hans Morgenthau, to benefit society by "speaking truth to power."[345] The intellectual has four ways of dealing with power, according to Morgenthau: "by retreat into the ivory tower, which makes him irrelevant; by offering expert advice, which makes him a servant; by absorption into the machinery, which makes him an agent and apologist; or by 'prophetic confrontation.'"[346] This last, prophetic confrontation, requires intellectuals to "look at the political sphere from without, judging it by, and admonishing it in the name of the standards of truth accessible to [them]."[347]
A central indicia of "truth" for any legal scholar is the body of case law surrounding any legal issue. "[T]he intellectual structure of the American legal scholar is in large part derived from what is being done and/or needs to be done by the judiciary. The judiciary is the main source of raw data and hypotheses for legal scholars."[348] Although cases are hardly conclusive as to how a statutory or constitutional clause should be interpreted, as legal scholars we are ethically obligated to at least acknowledge relevant case law, however much we may disagree with it. Legal precedents ¾ particularly unwavering legal precedents ¾ do matter, regardless of how often we tell our students that "the court got it wrong" (again). Even if the goal is to criticize the status quo interpretation, revelation of that consistent judicial reading is an important aspect of the scholar's dialogic responsibility.
Legal scholars have done perhaps the poorest instructional job of all three groups taken to task here. Like so many things in law school, the dialogic failure on the Second Amendment has three prongs: (1) the complete failure of law professors to speak up on the issue; (2) the failure of those few who have addressed the issue to discuss a central aspect of the legal "truth" about the Second Amendment ¾ that the courts constantly reject the gun lobby's broad- individual-right position; and (3) the even greater failure to reach beyond the insular world of the legal academy and speak to the people and to political leaders.[Page 137]
2. Legal Scholars' Dereliction of Responsibility ¾ Failure to Speak
As Sanford Levinson has said: "To put it mildly, the Second Amendment is not at the forefront of constitutional discussion."[349] Members of the legal academy all but ignore the Second Amendment. Anecdotal information suggests that it is rarely discussed in class. It is virtually invisible in the leading constitutional law texts, making only passing appearances in the leading casebooks.[350]
The Second Amendment has only a slightly higher profile within the pages of the nearly 650 law reviews and journals listed in the Index of Legal Periodicals.[351] At the beginning of the 1993-94 academic year, the AALS-member law schools employed 1368 self-described constitutional law professors.[352] Of that group, only nine have ever written a law review article focusing on the Second Amendment.[353] Between January 1973 and June 1994, law reviews published only fifty-seven articles with a significant Second Amendment focus,[354] according to the [Page 138] ILP.[355] Of those fifty-seven articles, leading gun-rights litigators and lobbyists produced at least twenty-six, or nearly half. [356] Not content to rely solely on its own lawyers and activists, the gun lobby is also working hard to flood the law reviews with friendly scholarship from sympathetic law professors[357] and promising law students.[358] Full-time law professors penned only ten articles focusing on the Second Amendment.[359]
Why is the Second Amendment a topic so rarely broached by legal scholars? Levinson theorizes that the Second Amendment's absence from serious scholarly discussion stems from opposition to private gun ownership and a concern that "altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles" to firearms restrictions.[360] I find this explanation unpersuasive. No survey suggests, and I strongly doubt, that the majority of legal scholars are so anti-gun as to oppose all firearm ownership by private citizens (though many may support some form of gun control).[Page 139]
Some have suggested that the Second Amendment silence is due to the very point made in Part I: The lower courts have clearly rejected the broad- individual-right view, and the issue is dead until the Supreme Court finally chooses squarely to address this settled area of constitutional law.[361] Other scholars have indicated to me ¾ with little desire for attribution ¾ that they were never exposed to any serious discussion of the Second Amendment in law school, while clerking, or in practice. Such a tabula rasa is an unlikely foundation for successful scholarly efforts. Finally, there are a pair of explanations that strike me as ironically contradictory. On the one hand, the questions surrounding Second Amendment interpretation are not as intellectually tempting to most scholars as the consistently hot legal battlefields involving the First, Fourth, and Fourteenth Amendments, or any kind of Critical Race analysis. On the other hand, the stakes of the political battle, and the tone of the spitting match that passes for a debate on gun control, are as high and as heated as one could find. A hot battlefield that includes nonlawyers, with real political controversy and ugly cross-talk, may simply be too off-putting for the taste of many in the legal academy, quite a few of whom have intentionally eschewed the often confrontational stance of the practicing lawyer.
3. Legal Scholars' Dereliction of Responsibility ¾ Failure to Speak the Truth Among the handful of legal scholars who have tackled the Second Amendment, several have read the text and underlying history as establishing only a narrow individual right to bear arms.[362] However, a number of scholars who have discussed the Second Amendment have endorsed the broad-individual-right interpretation.[363] This Article contends that a careful reading of the text and legislative history does not support the latter view.[364] The dereliction of dialogic responsibility is not a failure to toe some mythical party line opposing the Second Amendment. The real problem with these scholarly endorsements of the NRA's position is that they inexplicably ignore, or summarily dismiss, the judicial consensus rejecting the broad-individual- right position. The failure lies in refusing to mention the scope of the case law that confines the "right to bear arms" to only the narrowest of circumstances.
In his enormously influential essay, The Embarrassing Second Amendment,[365] Sanford Levinson utterly ignores the vast case law arrayed against his favorable nod to the gun lobby's reading of the "right to bear arms." In this piece, Levinson proclaims that it is not his "style to offer [Page 140] 'correct' or 'incorrect' interpretations of the Constitution."[366] Nonetheless, the essay manages to lend great credence to three significant interpretive "suggestions": (1) The broad-individual-right view may well be a "winning interpretation";[367] (2) the term "Militia" in the Second Amendment "refers to all of the people;"[368] and (3) the Second Amendment preserves the right of the people to engage in armed rebellion against a despotic regime.[369] In offering these helpful hints, Levinson provides a cursory overview of the Second Amendment text and surrounding history, relying on the usual secondary materials that the NRA finds so appealing, including The Federalist No. 46 and nineteenth-century constitutional commentary from Justice Joseph Story and Thomas Cooley.[370] Like the gun lobby, Levinson strips these materials of important context, advancing the ball "by manipulating his supporting material so as to exclude that which would cast doubt on the existence of a broad individual right."[371]
Focusing only on the Supreme Court, Levinson complains that "only one modern case . . . discusses the issue"[372] and then proceeds to ignore the settled law in ten circuits, as well as the consistent decisions of dozens of federal and state courts rejecting the broad-individual-right view,[373] the insurrectionist position,[374] and a weapon-centric interpretation of Miller.[375] Levinson instead lends credence to all of these positions. To be fair, his failure to discuss the broad judicial consensus running contrary to his position must be understood in light of his disdain for judicial opinions as significant factors in assessing constitutional meaning.[376] But Levinson's claim in this essay, that he supports "prohibitory [firearms] regulation" is hard to swallow. He is a member of the anti-gun-control [Page 141] group, Academics for the Second Amendment,[377] and has urged Democrats to abandon their long-time support for firearms restrictions.[378] Levinson concludes his essay by urging greater "sensitivity to different or excluded voices" representing the NRA position.[379] To describe the nearly inescapable drone of the NRA position on gun control as "excluded" is a bit silly.
William Van Alstyne's recent essay, The Second Amendment and the Personal Right to Arms,[380] concludes that "the essential claim . . . advanced by the NRA with respect to the Second Amendment is extremely strong."[381] He compares the so-called "arrested jurisprudence" of the Second Amendment to that of the First Amendment in 1904, and argues that the "underdeveloped nature" of the Second Amendment case law is "due substantially to the Supreme Court's own inertia."[382] On the way to these pronouncements, Van Alstyne discusses only the scant Supreme Court case law, ignoring the many state and lower federal court decisions of the last fifty-five years. Van Alstyne offers the rather surprising statement that "the Second Amendment has [Page 142] generated almost no useful body of law."[383] The settled case law, of ten circuit courts and several state supreme courts, is somehow not useful.
In The Second Amendment: Toward an Afro-Americanist Reconsideration,[384] Robert J. Cottrol and Raymond T. Diamond discuss the meaning of the right to bear arms in light of our enduring national legacy of racism and the use of firearm regulation as a means to control underrepresented groups. These authors conclude that "a society with a dismal record of protecting [African- Americans] has a dubious claim on the right to disarm them."[385] Most of Cottrol and Diamond's conclusions rely on standard gun-lobby materials, as they elaborate the long-standing NRA theme that "gun control is a white plot to disarm a feared minority population."[386] Though there is indeed some historical merit to the argument, particularly in the Jim Crow era, the position makes little sense today in light of the tremendous and disproportionate toll that gun violence takes on the African-American community.[387] As for judicial authority regarding the Second Amendment, the authors take only a short footnote, stating that some courts have dismissed Second Amendment claims "by employing the collective rights theory."[388] Cottrol and Diamond's citation to only one of dozens of like-minded decisions seriously downplays the broad judicial dismissal of any broad individual right.
It should be added that Cottrol is one of the most active legal scholars in the Second Amendment area. He has written a number of articles for [Page 143] the popular press, both alone and with Diamond,[389] and has edited a collection of essays on the Second Amendment.[390] All of these materials display a similar disinclination to acknowledge fully judicial or scholarly views contrary to the gun lobby's party line. Most of the other legal scholars adopting the broad-individual-right view also fail to acknowledge the contrary judicial consensus.[391]
Admittedly, Cottrol takes the laudable position that "[j]udicial hostility towards a constitutional right should not cause us to ignore the existence of that right."[392] Judicial hostility to the gun lobby's expansive interpretation of the Second Amendment does not mean that a broad individual right to bear arms could not, or should not, exist. Nor does it mean that Cottrol, Diamond, or any other gun-rights advocate should refrain from arguing that the Second Amendment should be read broadly. But given the constant repetition of these pro-gun-lobby articles, with their recitation of the same source material, there appears to be little danger of any broad Second Amendment right being ignored. Instead it is the gun-rights scholars who have ignored what the courts have said ¾ omitting material in gross measure.
It requires an advanced case of Supreme Court-only tunnel vision to ignore more than five decades of consistent interpretation from the federal courts. Despite the Supreme Court's position "at the apex of one [Page 144] discourse" of "authoritative guidance,"[393] the High Court is not the only voice in the judicial conversation. Despite the Court's pronouncement that it is "the ultimate interpreter" of the Constitution,[394] it is not the only constitutional interpreter.[395] The Supreme Court offered a narrow, albeit confusing analysis in Miller. Every other federal court to consider the Second Amendment subsequent to the Miller decision has adopted a narrow militia-centric view of the right to bear arms. When scholars ignore that consistent case law, they perpetuate the ignorant state of our gun control discourse.
It may well be that one's scholarly views of the Second Amendment are determined primarily by one's political position on gun control (a charge to which I am open just as much as the pro-gun-rights academics). Of the nine full-time law professors who have offered endorsements of the broad-individual-right position via law review articles, seven are members of the anti-gun- control group Academics for the Second Amendment ("AFSA").[396]
AFSA is headed by NRA Executive Board member Joseph Olson, a professor at Hamline University School of Law.[397] The group was lauded in the December 1993 issue of the NRA's American Rifleman.[398] AFSA proclaims that it seeks to "foster intellectually honest discourse" on the Second Amendment, and that its "primary goal is to give the 'right to keep and bear arms' enshrined in the Bill of Rights its proper, prominent [Page 145] place in Constitutional discourse and analysis."[399] But in the group's paid political announcement and in the writings of its members, "intellectually honest discourse" includes steering a course far away from the judiciary's interpretation of the Second Amendment. The group's members have spread the gun lobby's gospel effectively.[400] Their academic endorsements provide much appreciated scholarly seals of approval for the NRA,[401] and perpetuate the popular false consciousness regarding the operative meaning, as rendered by the courts, of the Second Amendment.[402][Page 146]
4. Legal Scholars' Dereliction of Responsibility ¾ Failure to Speak Truth to Power
Speaking truth to power can often be controversial and frequently must be confrontational. As honesty is an all-too-rare commodity in politics,[403] the scholar's obligation to speak truth to power will often require a forthright challenge of deception.[404] "[I]t is the very essence of the [legal scholar's] job to consider rather concretely how public and private power should be exercised: to criticize as a scholar contemporary public figures and institutions, assuming a direct responsibility 'to improve the world' " by teaching lessons to those wielding power.[405]
Very few law professors have cleared their throats, or their hard drives, to weigh in on gun control and the (supposed) restrictions of the Second Amendment. Even fewer have done so beyond the insular literary universe of the law review. Though the law review is the most familiar and (in terms of tenure) most important arena for legal academics, it is a hardly a public forum. The law review culture, with its "limited and specialized circulation" and its "closed and self-referential vocabularies," offers "little if any guidance with respect to framing popular arguments."[406] Comfortable and nonthreatening as the Ivory Tower might be, legal academics have a social responsibility to venture forth to frame popular arguments.
But members of the legal academy tend to shy away from such public [Page 147] conflict. Out of choice or habit, most of us speak primarily within the closed conversational circle of the law school and law review. We often seem reluctant to play a role in contemporary politics. "Despite the normative trend so dominant in legal scholarship . . . scholars have thus far been noticeably 'reluctant to tie their sophisticated intellectual insights to the concrete problems' of constitutional adjudication, much less to popularly-oriented politics."[407] A recent New York Times story discussed the "growing number of scholars who are trying to reach beyond the boundaries of academic life to speak to broader audiences on broader issues," and quoted some dozen academics on their intellectual outreach efforts. Not one was a professor of law.[408]
Scholars have certainly been reluctant to offer many "sophisticated intellectual insights" to correct the public's constitutional false consciousness surrounding the Second Amendment. Reflecting the important role that legal scholarship should play in political discourse, Levinson told the National Law Journal in 1990 that his fellow academicians ought to take the Second Amendment more seriously, because "unlike other little-analyzed constitutional provisions . . . this amendment drives popular debate and influences political campaigns."[409] More generally, Morgenthau argued that, if "it is taken seriously," scholarship relevant to such political conflict "shortens the interval necessary for the correction of unsound policies."[410] But legal scholars have done little to correct our nation's unsound firearms policies; we have been all but irrelevant to the polity's debate over gun control. We have greeted the gun lobby's constitutional misinformation campaign with a roaring silence in the popular press. A search of the LEXIS News Library through the end of 1994 shows no more than sixteen occasions in which legal scholars made any comment on the Second Amendment available for publication or broadcast by the popular press.
If we have any regard for the significance of the judiciary's interpretive role in constitutional matters, legal scholars have a duty to speak up, to speak honestly, and to speak clearly to the public and their representa-[Page 148] tives, explaining the relevant case law and challenging the gun lobby's dishonest manipulation of constitutional meaning. "Legal scholars can point out the distortions, overstatements, strategies, hidden agendas, and the like of the various interest groups striving to dominate key parts of the legal system and legal doctrine."[411] Even those who embrace the broad- individual-right view have the responsibility as scholars to acknowledge the contrary judicial consensus and to challenge the Second Amendment haze surrounding this most politically important of constitutional provisions. Permitting the public, the media, and our legislators to continue wallowing in the mud of constitutional confusion undermines the polity's ability fully to contemplate the costs and benefits of our current firearms policy. Permitting a misconception of the Second Amendment to thrive undermines the dialogic legitimacy of our political discourse, and allows the din of the gun lobby's well-orchestrated propaganda campaign to drown out the judiciary's voice.
CONCLUSION
Despite the general failure of politicians, journalists, and legal scholars to clarify pub