In the aftermath of the Parkland shooting, in which 14 students and 3 faculty members of Stoneman Douglas High School lost their lives to bullets fired from a mentally unstable 19 year-old’s AR-15, most of us are asking the obvious question: “How do we prevent something like this from happening again?” I do not claim to know the answer. But it seems to me that all reasonable ideas should be on the table, from renewing the assault weapons ban, to universal background checks, to closing the so-called “gun show loophole,” to increasing our collective investment in mental health diagnosis and treatment, to more comprehensive data integration. While I personally do not believe arming our teachers or other faculty members is part of the solution, that too should be part of the debate.
What should be off limits, however, is unreasonable rhetoric. Let me be clear: by “off limits” I do not mean such speech should in any way be shut down. To the contrary, it should be called out for what it is. And no one is more adept at employing such rhetoric than the National Rifle Association. It does so following each and every mass shooting. This time around, speaking to the Conservative Political Action Conference, the NRA’s executive director Wayne LaPierre warned of a socialist takeover of Congress that could lead to the loss of many of our freedoms, but “first to go will be the Second Amendment.” This is not the first time I have encountered that line of argument, from that very man. Following the December 2012 mass shooting at Sandy Hook Elementary School in Newtown, I received a letter from Mr. LaPierre inviting me to become a member of the NRA. I offer my response now to call out publicly what I only privately condemned five years ago and to add a more thorough analysis of our Supreme Court’s 2008 decision in District of Columbia v. Heller to the national debate on this important issue.
January 10, 2013
Dear Mr. LaPierre:
Thank you for your invitation to join the National Rifle Association. Unfortunately, I must decline. The reason is simple. But before I give it, allow me to address several points you raise in your invitation letter.
First, after asserting that the re-election of President Barack Obama marks “the beginning of a four-year nightmare,” you state: “You know as well as I do that our freedoms are in far greater danger of being dismantled and destroyed than they were four years ago―not just our Second Amendment rights but all the freedoms enshrined in our Constitution.” No, I do not. But since you do not mention which other freedoms you believe are in danger, I will confine my response to the Second Amendment.
In District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), the United States Supreme Court held that “the [District of Columbia’s] ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” (Id. at p. 635.) However, the Court was also careful to point out that, like the First Amendment’s right to freedom of speech, the Second Amendment’s right to bear arms is not unlimited: “Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” (Id. at p. 594.) Nor does the Second Amendment’s protection extend to any and all weapons. For example, in United States v. Miller (1939) 307 U.S. 174 (Miller), the Supreme Court held that the Second Amendment did not protect an individual’s right to transport an unregistered short-barreled shotgun in interstate commerce. (Heller, supra, 554 U.S. at pp. 621-623.) As the Heller Court explained, the reason was that “the type of weapon at issue [in Miller] was not eligible for Second Amendment protection: ‘In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.’” (Ibid., quoting Miller, supra, 307 U.S. at p. 178.) However, the Heller Court also explained: “Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’ [Citation.] The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense. ‘In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.’ [Citation.] Indeed, that is precisely the way in which the Second Amendment’s operative clause [“the right of the people to keep and bear Arms, shall not be infringed”] furthers the purpose announced in its preface [“[a] well regulated militia, being necessary to the security of a free State”]. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” (Id. at pp. 624-625.) The Heller Court then stated: “It may be objected that if weapons that are most useful in military service―M-16 rifles and the like―may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” (Id. at pp. 627-628.)
Thus, the United States Supreme Court has held “the right secured by the Second Amendment is not . . . a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (Heller, supra, 554 U.S. at p. 626.) Instead, it is the right to possess and carry weapons “typically possessed by law-abiding citizens for lawful purposes.” (Id. at p. 625.) It protects the right to possess a handgun in one’s home because handguns are a “class of ‘arms’ that is overwhelming chosen by American society” for the lawful purpose of self-defense. (Id. at p. 628.) It does not protect the right to possess a machinegun or a short-barreled shotgun. Nor do I believe that it protects the right to possess the assault rifles that have become the preferred weapon for use in mass shootings. Reasonable minds can disagree on where the line should be drawn between guns which are or are not typically possessed by law-abiding citizens for lawful purposes. You believe assault rifles are covered. I do not.
But this disagreement alone would not prevent me from becoming a member of the National Rifle Association. Which brings me to the second point I wish to address. You claim in your letter that Senators Charles Schumer and Dianne Feinstein are “blaming America’s 100 million gun owners when a single madman commits a heinous crime.” When did they do that? There are plenty of legitimate concerns with the federal assault weapons ban being proposed in the Senate. Perhaps it is too broad. If it passes, I’m sure the Supreme Court will tell us. But the fact that Senators Feinstein and Schumer are seeking to ban assault weapons and high-capacity magazines does not mean they are “blaming” lawful gun owners for the actions of deranged gunmen. It simply means that they believe a federal assault weapons ban will make it harder for such individuals to acquire these types of weapons. You may disagree. And you might be right. Maybe it is as easy to get an assault weapon on the black market as it is to get one at Wal-Mart or a gun show. But even if that is true, proposing an assault weapons ban does not amount to blaming lawful gun owners. Indeed, the proposed assault weapons ban would exempt those who legally possess assault weapons at the time of enactment if the weapon is registered under the National Firearms Act, which would include a background check, photographic and fingerprint identification, and certification from local law enforcement of identity and that possession would not violate state or local law. (See http://www.feinstein.senate.gov/public/index.cfm/assault-weapons [as of Jan. 10, 2013].) Thus, far from being blamed, lawful current owners of assault weapons are exempt from the federal ban. You may believe the conditions of the exemption are too onerous. I do not. The conditions are designed to ensure that the exemption covers lawful gun owners and not those who are prohibited by state law from owning firearms, such as felons. Returning to Heller, supra, 554 U.S. 570: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (Id. at pp. 626-627.)
Third, you claim that “elitist, arrogant politicians like New York City Mayor Michael Bloomberg” are “working day and night to outlaw [our] right to self-defense.” I know of no such work. Nor would it be successful. As mentioned, under Heller, supra, 554 U.S. 570, banning the in-home possession of firearms that are typically possessed by law-abiding citizens for lawful purposes such as self-defense would violate the Second Amendment. (Id. at p. 635.) President Obama has even stated that the Second Amendment “does provide for Americans the right to bear arms for their protection, for their safety, for hunting, for a wide range of uses.” (http://www.whitehouse.gov/the-press-office/2011/03/03/remarks-president-obama-and-president-calder-n-mexico-joint-press-confer [as of Jan. 10, 2013].) No one is trying to outlaw self-defense.
Fourth, you accuse the United Nations of “seeking to impose a Global Gun Ban Treaty,” which you suggest would “strip the U.S. of its sovereignty and harshly regulate . . . rifles, shotguns and pistols.” I assume you are referring to the Arms Trade Treaty, scheduled for a United Nations Conference in March 2013. (http://www.un.org/disarmament/convarms/ ArmsTradeTreaty/ [as of Jan. 10, 2013].) As I am sure you know, the United Nations cannot impose this treaty on the United States. In order for any treaty to be ratified, consent of two-thirds of the Senate is required. (U.S. Const., art. II, § 2.) If this treaty stripped the United States of its sovereignty and harshly regulated firearms bought and possessed in the United States, there is no way it would receive a two-thirds vote in the Senate. According to FactCheck.org: “Last year, in fact, 13 Democratic senators, led by Jon Tester of Montana, wrote a letter to [President] Obama and Secretary of State Hillary Clinton saying that they wouldn’t support a treaty unless they were guaranteed that it wouldn’t ‘in any way regulate the domestic manufacture, possession or sales of firearms or ammunition’ in the U.S. That’s in addition to 45 Republican senators, led by Jerry Moran of Kansas, who also wrote a letter saying that ‘any treaty resulting from the Arms Trade Treaty process that seeks in any way to regulate the domestic manufacture, assembly, transfer, or purchase of firearms, ammunition, and related items would be completely unacceptable to us.’” (http://www.factcheck.org/2012/06/still-no-international-gun-ban-treaty/ [as of Jan. 10, 2013].)
I decline to become a member of the National Rifle Association not because I am opposed to guns. Like most men, I like guns. I also believe in self-defense. And if it were simply that we disagreed about whether or not the Second Amendment covered assault weapons, I still might join. I decline because your rhetoric is unreasonable. Now is the time to have a reasonable debate about gun control in America. Your press conference following the massacre in Newtown and your invitation letter to me have demonstrated quite clearly that you are not willing to participate in that debate. Please remove me from your mailing list.
Nicholas Mahr is a California attorney. The views expressed herein are his own and do not reflect the views of his employer or any other person or entity.