NRA and Reagan Conservatives Defending Second Amendment in Court
This column by ACRU Senior Legal Analyst Ken Klukowski was published January 8, 2011 on Townhall.com
The Second Amendment is a whole new ballgame in the aftermath of recent Supreme Court decisions. The NRA is taking a leading role in many lawsuits now underway by bringing in top-tier lawyers from the Reagan administration, as the biggest battles over gun rights now move into the courtroom.
For almost 200 years, the Second Amendment right to keep and bear arms was sacred in American law. In addition to hunting, the right of law-abiding citizens to buy, keep and carry guns was essential for defending yourself and your family. Additionally, though, the reason that gun rights was included in the Bill of Rights was as a last resort both against foreign invaders and also as an insurance policy against the possibility of a tyrannical regime ever overthrowing The Constitution in this country.
Then with the rise of the Far Left in the 1960s, gun control became a major issue. After the assassinations of JFK, Bobby Kennedy and Martin Luther King, LBJ and the Democratic Congress passed the Gun Control Act of 1968.
This is what led to the modern National Rifle Association of America. The NRA was founded by Union generals in 1871, but for its first century the NRA was focused on cooperating with the U.S. military to teach marksmanship and hunter safety courses, as well as supporting competitive shooting sports. After the 1968 Gun Control Act, the NRA moved into the realm of lobbying and political activism.
The 1990s saw the NRA become the most powerful political organization in America. In 1991 the board of directors elected Wayne LaPierre, formerly the NRA’s top lobbyist, as executive vice president with overall control of the organization’s political efforts. After the Clinton Gun Ban and the Brady Bill became law in 1994, Wayne led the NRA’s efforts in the historic 1994 midterm elections where Republicans took both houses of Congress. Then when the legendary Charlton Heston became NRA president in 1998, Heston and LaPierre worked together to help defeat Al Gore in the 2000 presidential election, and buck historical trends by electing additional pro-gun congressmen in the 2002 midterms. Both were tremendous successes.
During all this, the NRA’s public-policy muscle was in its lobbying, not legal efforts. Gun rights were not a major issue in court, so there was no need to build serious legal talent to fight for them.
Some on the NRA board started looking forward to prepare the way for the federal judiciary to weigh in on gun rights. When Harvard-trained lawyer Sandy Froman was elected to the NRA board in 1992, she worked with others to organize the first gun-rights legal symposium to start to organize these efforts.
This is where President Reagan’s team enters the scene. During his second term, Ronald Reagan tapped his first-term counselor, Ed Meese, to take over the Justice Department. Attorney General Meese then tapped Charles Cooper to become the head of the Office of Legal Counsel (OLC), the top legal adviser to the attorney general and the president. As part of his team, Cooper brought on a brilliant constitutional lawyer and Harvard Ph.D. named Nelson Lund.
After Reagan’s presidency, Cooper and Lund became heavily involved in Second Amendment issues. (Lund, who is now a professor at George Mason University School of Law, holds the only endowed professorship on the Second Amendment.) They worked together on several cases during the following twenty years, most especially U.S. v. Emerson in 2001 (a case in the Fifth Circuit federal appeals court), which finally set the stage for the Supreme Court to take up the Second Amendment.
Then the Supreme Court took up the Second Amendment in two historic cases. The first was D.C. v. Heller in 2008, where the Court held that the Second Amendment is an individual right for American citizens to own and possess guns. The second was McDonald v. Chicago in 2010, where the Court held that the right to bear arms is a fundamental right, and therefore is enforceable against cities and states through the Fourteenth Amendment.
Now the hard work begins. Courts must now grapple with whether all firearms are protected by the Second Amendment, what guns people may carry when they’re away from their homes, and also in public places and buildings. They’ll have to address gun rationing, licensing, registration, concealed carrying of guns, as well as what sorts of taxes and fees do not interfere with the Second Amendment.
Once again, Chuck Cooper is carrying the ball on many of these issues for the NRA. In the aftermath of McDonald striking down its gun ban, Chicago passed a gun-control and registration scheme that still makes it practically impossible to get a gun. (They also made it clear they’re doing this to defy the High Court’s decision.) Cooper is now representing the plaintiffs in the new case Benson v. Chicago. Also federal law allows Americans to buy long guns (rifles and shotguns) at age 18, but forces them to wait until age 21 to buy a handgun. Cooper is representing the plaintiffs in D’Cruz v. BATFE, fighting this restriction on law-abiding 18- or 20-year olds exercising their fundamental rights.
Leaders from the NRA board praise these developments.
NRA board member Sandy Froman–who also served two terms as NRA president–said, “One of the greatest dangers now for the Second Amendment is apathy. Heller and McDonald were only the beginning, not the end of the fight. We need to press forward to advance and defend the Second Amendment.” Froman also adds, “In the gun-rights community we need to develop a deep bench of scholarly talent. The few scholars out there were like wanderers in the desert twenty years ago. Now that the Second Amendment is a recognized right, we need to get more conservative lawyers involved.”
Ken Blackwell–an NRA board member who serves in the leadership of almost a dozen national conservative organizations–adds, “We’ve made a great beginning. Now as more Second Amendment issues are in court, the gun-rights community will be looking carefully at judicial nominees. This is about more than the Supreme Court. Hundreds of Second Amendment cases are going to be decided by the lower federal appeals courts. We need good judges on those courts.”
America is in the early stages of a thirty-year period of developing the Second Amendment. The NRA certainly has its work cut out for it, as America’s premier gun-rights organization tackles new opportunities and threats to the right to keep and bear arms.