Tue 11 Jan, 2011 04:01 am
By Ken Klukowski
NRA and Reagan Conservatives Defending Second Amendment in Court
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 the Kennedys and Martin Luther
King, LBJ and the Democratic Congress passed the
Gun Control Act of 1968. [Inspired by the gun control laws of the 3rd Reich,
which were translated by the Library of Congress for Sen. Tom Dodd,
who was America's Trial Counsel in the Nuremberg War Crime Trials. David]
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 can
legally 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 shoulder
weapons (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.” Ms. 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.