In 1977 at a Denver hotel, Don Kates paced a conference room lecturing a small group of young scholars about the Second Amendment and tossing out ideas for law review articles. Back then, it was a pretty weird activity in pursuit of a wacky notion: that the Constitution confers an individual right to possess a firearm.
“This idea for a very long time was just laughed at,” said Nelson Lund, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University, a chair endowed by the National Rifle Association. “A lot of people thought it was preposterous and just propaganda from gun nuts.”
More than 35 years later, no one is laughing. In 2008, the U.S. Supreme Court endorsed an individual’s right to own a gun for the first time in the case of District of Columbia v. Heller. The 5 to 4 decision neutered some of the District of Columbia’s strict gun-control laws. And Justice Antonin Scalia’s majority opinion echoed the work of Kates and his ideological comrades, who had pressed the argument that the Second Amendment articulates an individual right to keep and bear arms.
As the Obama administration pushes for gun-control legislation, it will have to contend with the changed legal understanding of the Second Amendment that culminated in Heller. That transformation was brought about in large part by a small band of lawyers and scholars backed by the National Rifle Association.
For more than three decades, the NRA has sponsored legal seminars, funded legal research and encouraged law review articles that advocate an individual’s right to possess guns, according to the organization’s reports. The result has been a profound shift in legal thinking on the Second Amendment. And the issue of individual gun-possession rights, once almost entirely ignored, has moved into the center of constitutional debate and study.
For proponents of stricter gun control, the NRA’s encouragement of favorable legal scholarship was a mark of its strategic, patient advocacy.
“I think this was one of the most successful attempts to change the law and to change a legal paradigm in history,” said Carl Bogus, a professor at Roger Williams University School of Law in Rhode Island and the editor of “The Second Amendment in Law and History,” a collection of essays that challenges the interpretation of the individual right. “They were thinking strategically. I don’t think the NRA funds scholarship out of academic interest. I think the NRA funds something because it has a political objective.”
The Second Amendment states: “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.” Before the Heller decision, the Supreme Court and lower courts had interpreted the language as “preserving the authority of the states to maintain militias,” according to a Congressional Research Service analysis.
“It was a settled question, and the overwhelming consensus, bordering on unanimity, was that the Second Amendment granted a collective right” enjoyed by the states, not the individual, Bogus said. Under this interpretation, the Constitution provides no right for an individual to possess a firearm.
Lund agreed that there was a consensus but said it was “based on ignorance.”
Throughout most of American history, there has been little academic interest in the Second Amendment. From 1912 to 1959, only 11 law journal articles were published on the subject, all of them endorsing the prevailing opinion that it “affects citizens only in connection with citizen service in a government-organized and -regulated militia,” according to an analysis by Robert Spitzer, a professor of political science at the State University of New York at Cortland and the author of “The Politics of Gun Control.”
The first articles advocating an individual right began to appear in the 1960s, and scholarship endorsing that view took off in the late 1970s. From 1980 to 1989, as NRA support began to be felt, 38 articles on the Second Amendment were published in academic journals, 21 of which advocated an individual right. In the following decade, 87 articles appeared and a clear majority — 58 to 29 — took an individual-rights position, Spitzer’s analysis showed.
For Kates, the explanation for the burgeoning scholarship is obvious. “Gun control became a matter of enormous political controversy and this focused attention on the Second Amendment,” he said in an interview.
Kates, a Yale Law graduate who describes himself as a liberal, said he began carrying a gun when he spent the summer of 1963 as a civil rights worker in eastern North Carolina.
“I never believed the nonsense that was then current that the Second Amendment had to do with states’ rights,” he said. Alarmed by calls for stricter gun control and outright bans, Kates started the seminars in the late 1970s and ran them for more than a decade with support from various groups, including the NRA and the Second Amendment Foundation, another gun rights organization.
Stephen Halbrook attended the Denver seminar in 1977 when he was an assistant professor of philosophy at Howard University and studying for a law degree at Georgetown University. Three years later, he published his first article on the Second Amendment in the George Mason University Law Review. He went on to publish more than 20 law review articles and four books dealing with the Second Amendment, some with grants from the NRA, where he has served as an outside counsel.
Halbrook, who has a law office in Fairfax City, Va., said the NRA started funding scholarly research. “I would think that’s important in the sense that scholars, unless you’re independently wealthy, you need to be paid for your time,” he said.
He and others noted that Bogus has received outside funding for symposia and publishing that excludes the individual-rights point of view. Bogus said he was transparent about his funding.
The NRA also began essay competitions for law students with prizes of up to $12,500, with the understanding that the winners would try to place their work in a law review.
Halbrook was one of a number of lawyers — including Kates; Dave Hardy, a legal consultant for the NRA; and David Caplan, a member of the NRA’s board of directors — who were at the forefront of this writing. They drew on their reading of Colonial history, the founders’ statements and early American constitutional history to make their case for an individual right.
Hardy said most of this work was being published in minor reviews, but the individual-rights argument got a big boost in 1989 when Sanford Levinson, a leading professor of constitutional law at the University of Texas at Austin, published “The Embarrassing Second Amendment” in the Yale Law Journal. He argued that the “legal consciousness of the elite bar” on the Second Amendment might be wrong. He also was sympathetic to the “insurrectionist theory” that citizens have a right to be armed so they can fight their government if it becomes tyrannical. Levinson singled out Kates’ work and cited Halbrook.
Other leading scholars followed, and advocates for the NRA’s position began to speak about a new “standard model.” In 1997, Justice Clarence Thomas acknowledged the growing mass of law review material when he wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment text suggests, a personal right.”
In 2003, the NRA marked the Second Amendment’s new stature as a subject of serious study when its foundation endowed Lund’s Patrick Henry Chair at George Mason University with $1 million. The law school had established a reputation as a bastion of conservative legal thought.
“What they were looking for was a means of legitimating the fact that the Second Amendment had arrived as a legitimate subject of study in constitutional law,” said Daniel Polsby, the dean of the George Mason University School of Law.
For advocates of an individual’s right to bear arms, the Heller decision in 2008 was a vindication. In writing the majority opinion, Scalia said, “The Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
He cited Kates and Halbrook.