How the NRA Weaponized the Second Amendment

The NRA began wrapping its marriage to the gun industry in the flag in the 1970s. In that decade, the organization started funding academics to argue that the consensus surrounding the Second Amendment—put forward by Supreme Court decisions, legal scholars, and historians—was faulty. The right to bear arms should not be seen in the context of a militia or as a right of the people to collectively take up firearms for the common defense. According to this revisionist history, the Second Amendment bestowed on individuals the right to own and carry firearms wherever they choose. The NRA saw this new interpretation as a way to combat gun restrictions and loosen gun control laws.

Until 1969, the NRA’s “individual right” theory existed only on the margins of mainstream opinion. Almost every single academic article on the Second Amendment concluded that it did not guarantee an individual right to own a firearm. But as the NRA began advocating the individual-right theory and investing in it, opinions shifted.

Two decades later, more than half of the scholarly articles on the Second Amendment were arguing that those twenty-seven words protected states’ rights to maintain militias and the right of any individual to own a firearm. These arguments held that “the people” actually referred to individuals, not the body politic, and that “militia” described able-bodied white men, not an organized military force. Many, if not most, of these opinions were penned by lawyers employed either by the NRA or by similar gun rights organizations; the conflict of interest often went undisclosed. And over time, legal scholars without connections to the gun lobby began to endorse its view as well.¹

These articles previewed the NRA’s messaging in the decades to come. In the early 1990s, the lobby established a nonprofit association of law school professors called Academics for the Second Amendment and launched a Second Amendment essay competition. It provided $1 million to establish the Patrick Henry professorship in constitutional law and the Second Amendment at George Mason University Law School. The organization even paid a lawyer $15,000 to critique historians who rejected the individualist interpretation. The NRA was determined to shift the nation’s longstanding understanding and interpretation of our founding document to serve and promote its agenda. It would prove to be a wise investment.

Much of this revisionism came from attorneys, not historians. They plucked a number of quotes from dissenters in the Pennsylvania ratification convention, excerpted from Massachusetts residents who disagreed with the state’s constitution, and borrowed other quotes out of context from prominent founding fathers.

For instance, many prominent revisionists and many NRA members cite Patrick Henry’s dictum “The great object is, that every man be armed” as proof that the founders believed that individuals should be able to own firearms unrestricted. The remark is even the title of an influential 1984 revisionist history about the Second Amendment. But consult the history or read the quote in its full proper context and you’ll learn that far from promoting guns for everyone, Henry was agitating “against the expense of two levels of government—the federal and the state—buying arms for the militia at the same time.”² The sentence before that infamous quote reads, “At a very great cost, we shall be doubly armed.”

Likewise, the NRA and its supporters often pull out a quote by Thomas Jefferson, “One loves to possess arms,” as evidence of his love for firearms. But Jefferson was simply requesting old letters he had written, to help him win a political debate. “Tho’ I do not know that it will ever be of the least importance to me yet one loves to possess arms tho’ they hope never to have occasion for them,” Jefferson wrote in full. “They possess my paper in my own handwriting. It is just I should possess theirs. The only thing amiss is that they should have left me to seek a return of the paper, or a copy of it, from you.”³

Historian Garry Wills sums up the revisionist approach this way: “Time after time, in dreary expectable ways, the quotes bandied about … turn out to be truncated, removed from context, twisted, or applied to a debate different from that over the Second Amendment.”⁴

Appearing on PBS in 1991, former chief justice Warren Burger, a conservative, used even harsher words than Wills. He described the individual-right theory as “a fraud” and declared that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

Burger expressed alarm because the NRA’s effort was indeed having an impact. By the end of the 1990s, about 67 percent of law review articles about the Second Amendment were adopting the individual-right view and, seventeen years later, it won the day in the Supreme Court. In 2008’s District of Columbia v. Heller, five justices struck down the Washington, DC, ban on handgun possession and agreed with gun rights advocates that the Constitution guaranteed an individual right to own a firearm in the home for self-defense.

Writing for the majority, Justice Antonin Scalia stressed that that right was not absolute, however, and conceded that the government can constitutionally ban certain individuals from possessing firearms. It can prohibit the carrying of firearms in schools or government buildings, impose restrictions on their sale, and prohibit the availability of “particularly dangerous and unusual weapons.” Two years later, in a separate case, the Court ruled that the Second Amendment applied to states and localities.

In Heller, however, the Court reversed decades of legal precedent. The Supreme Court had previously analyzed the meaning and reach of the Second Amendment four times and each time had concluded that it does not extend an individual right to ownership. It did so most prominently in the 1939 case upholding the constitutionality of the National Firearms Act. The Court had ruled that the Second Amendment protected “the right to bear arms” within the context of a militia and found that the government had the ability to ban weapons that were unrelated to “some reasonable relationship to the preservation or efficiency of a well regulated militia.” The Heller decision, therefore, represented a legal sea change. While the text of the amendment didn’t change, the new legal and historical arguments put forward by the revisionists provided the Court’s conservative justices the justification and pretext they needed to read new rights into the founding text. Those new rights aligned neatly with the commercial objectives of the NRA and the political priorities of the Republican Party.

Multiple factors contributed to the NRA’s eventual success. The lobby helped elect George W. Bush president in 2000. It ensured that he would appoint to the bench conservative justices who agreed with the NRA’s interpretation of the Second Amendment. Its ability to shape legal thinking was pivotal, however. On the day the Supreme Court handed down its decision in Heller, Walter Dellinger, who had represented the District of Columbia in the challenge, told the progun lawyer who had successfully argued it, “You know, it was the scholarship that won the case.”⁵

But that scholarship and the victory it created did not birth the kind of gun rights renaissance the NRA may have hoped for.

Since Heller, and as of this writing, the Supreme Court has been reluctant to accept new challenges to gun-safety laws and has even upheld restrictions on gun rights. The justices turned away at least seventy Second Amendment cases, including: challenges to California’s ten-day waiting period to buy a gun, a ban on carrying concealed-carry weapons outside the home, assault weapons bans, and prohibitions against certain classes of individuals from owning firearms. An analysis conducted in 2017 found that “in the more than 1,150 state and federal court decisions” since Heller, courts throughout the country “have rejected the Second Amendment challenges 94 percent of the time.” Instead, they have upheld numerous gun restrictions, including requiring “good cause” for the issuance of a concealed-carry permit, state laws that prohibit the possession of assault weapons and high-capacity magazines, laws requiring the registration of all firearms and a waiting period before a firearm sale, and state rules that require firearms to meet particular safety standards.⁶

If we know one thing about the NRA, however, it is that as seats are vacated on the high court, the lobby will do everything in its power to install justices who agree with its interpretation and are ready to insert new rights into the Second Amendment, thus loosening gun restrictions even further. The NRA’s persistence and singular focus on advancing a “guns everywhere and for everyone” agenda are two keys to its success.