How the Republicans stole the Second Amendment

By Rebecca Pilar Buckwalter Poza 
Sunday Feb 18, 2018 · 12:30 PM EST

Republicans stole the Second Amendment. Over the course of 30 years, the right waged a war on political, legal, and academic fronts to redefine that amendment, contrary to history, text, and precedent, as creating an individual right to bear arms. Of course, none of those efforts, nor their aggregate effect, would have been enough to accomplish the right’s aims without a far-right ideologue on the Supreme Court, the late Justice Antonin Scalia, to codify them.

The right’s misappropriation of the Second Amendment ranks among the most stunning legal feats in U.S. history.

In the two centuries following the adoption of the Bill of Rights, in 1791, no amendment received less attention in the courts than the Second, except the Third. As Adam Winkler, a constitutional-law scholar at U.C.L.A., demonstrates in a remarkably nuanced new book, “Gunfight: The Battle Over the Right to Bear Arms in America,” firearms have been regulated in the United States from the start. Laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813, and other states soon followed: Indiana (1820), Tennessee and Virginia (1838), Alabama (1839), and Ohio (1859). Similar laws were passed in Texas, Florida, and Oklahoma. As the governor of Texas explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”

Although these laws were occasionally challenged, they were rarely struck down in state courts; the state’s interest in regulating the manufacture, ownership, and storage of firearms was plain enough.

Judges took regulation as not only common sense, but wholly compatible with the Second Amendment. As Jeffrey Toobin recounted for The New Yorker six years ago:

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.

So, what spurred the departure from the well-established, longstanding understanding of the Second Amendment and the adoption of the contemporary, hopefully temporary, interpretation? Politics.

Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. … The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”

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https://www.dailykos.com/stories/2018/2/18/1741614/-How-the-Republicans-stole-the-Second-Amendment