How the Arms Industry & NRA have Mythologized the 2nd A

The Distortion of the Second Amendment

First published February 28, 2018

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness — That to secure these Rights, Governments are institutions among Men, deriving their just Powers from the Consent of the Governed…

Declaration of Independence, July 4, 1776.

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.

Second Amendment, Constitution of the United States.

For approximately 200 years the universal, if not unanimous, interpretation of the Second Amendment was that it granted a collective right enjoyed by the states, not individuals, and thus that the Constitution provided no right for an individual to possess a firearm. As a result, the authority of state and federal governments to regulate and control gun ownership by the private sector was virtually unchallenged, certain segments of society (such as felons and the mentally ill) were precluded from owning firearms, military grade weapons such as fully automatic and semi-automatic firearms, silencers, and explosive devise were heavily regulated and/or banned, and background checks for gun purchasers were standard.

Beginning the 1980s, the NRA has sponsored legal seminars, funded legal research and promoted articles that advocated an individual, private right to possess firearms as the basis of the Second Amendment.1

Garry Wills, a noted historian and Pulitzer Prize winning author, has thoroughly examined and debunked much of the mythology created by the NRA-driven flood of articles and publications of recent vintage promoting this arms industry version of the Amendment, which its proponents describe as the Standard Model (of the Second Amendment).2

I will not repeat Wills’ in-depth analysis in full in this essay, but will instead highlight two main criticisms of the Standard Model that are illustrative of its fallacies. First, the Standard Modelers labor to untether the Second Amendment from its military moorings. The reason for their effort to edit out the “A well regulated militia, being necessary to the security of a free state…” clause from the Amendment is to undermine the state’s legitimate role in regulating… “the right of the people to keep and bear arms…” For example, the State, to further the effectiveness of its militia, stored rifles and ammunition in its arsenals, regulated the storage of gunpowder (away from villages and schools), and trained the militia in the use of arms and military tactics.

As Wills explains in his historical refutation of the Standard Model in its effort to reinvent the Amendment:

In America, the Articles of Confederation require that “every state shall always keep up a well regulated an disciplined militia, sufficiently armedand accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and equipage” (equipage being the etymological sense of arma. Thus it is as erroneous to suppose that “keep” means, of itself “keep at home” as to think that “arms” means only guns. As Patrick Henry tells us, the militia’s arms include “regimentals, etc.” — the flags, ensigns, engineering tools, siege apparatus, and other “accoutrements” of war.

He further notes that:

To bear arms is, in itself, a military term. One does not bear arms against a rabbit. The phrase simply translates the Latin arma ferre. The infinitive ferre, to bear, comes from the verb fero. The plural noun arma explains the plural usage in English (“arms”). One does not “bear arm.” Latin arma, is etymologically, war “equipment,” and it has no singular forms. By legal and other channels, arma ferre entered deeply into the European language of war. To bear arms is such a synonym for waging war that Shakespeare can call a just war “just-borne arms” and a civil war “self-borne arms.” Even outside the phrase “bear arms,” much of the noun’s use alone echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma ponere). “Arms” is a profession that one brother chooses as another choses law or the church. An issue undergoes the arbitrament of arms. In the singular, English “arm” often means a component of military force (the artillery arm, the cavalry arm).

To keep-and-bear arms was the distinguishing note of the militia’s permanent readiness, as opposed to the army’s duty of taking up and laying down… their arms in specific wars. The militia was maintained on a continuing basis, its arsenal kept up, its readiness expressed in the complex process specified by “keep-and-bear.”

In sum, the much belated NRA narrative (200 years after the adoption of the Amendment) to divide the Second Amendment from its military context is a false construct. But there is even more disturbing nonsense in their mythological fable. We are instructed that the core purpose of the Amendment is to create the means for citizens to rebel against the very government formed by the Constitution.

Again, in the words of Professor Wills:

The Standard Model finds, squirreled away in the Second Amendment, not only a private right to own guns for any purpose but a public right to oppose with arms the government of the United States. It grounds this claim in the right of insurrection, which clearly does exist whenever tyranny exists. Yet the right to overthrow government is not given by government. It arises when government no longer has authority. One cannot say one rebels by right of that nonexistent authority. Modern militias say the government itself instructs them to overthrow government — and wacky scholars endorse this view. They think the Constitution is so deranged a document that it brands as the greatest crime a war upon itself (in Article III: “Treason against the United States shall consist only in levying war against them…”) and then instructs its citizens to take this up (in the Second Amendment). According to this doctrine, a well-regulated group is meant to overthrow its own regulator, and a soldier swearing to obey orders is disqualified for true militia virtue.

To put it in another way, the Standard Modelers present a purpose of the Second Amendment which assumes a schizophrenic collection of Founders of our country who desired to establish a Constitutional Republic that, notwithstanding its carefully balanced system of checks and balances and democratic processor of governance, endorsed and encouraged armed rebellion by royalists and all other insurrectionists.

This is the genesis of the “Second Amendment solutions” mantra that is heard from the fringe element that promotes assassination as a legitimate tool in the political arena. But beyond that rhetoric, it is an argument that the arms industry advances to open the door to the sale of more and more military weaponry to the private sector. After all, if the purpose of the Second Amendment is to enable the citizenry to revolt against the government, it cannot hope to succeed without access to equivalent military weaponry. And so, we now have the incremental move to allow the sale of silencers to the private sector (enabling snipers to implement Second Amendment Solutions as well as to stealthily murder our children), in addition to the semi-automatic rifles, and pistols, and mega-capacity magazines on the market. None of these made-for-war mass killing machines have any traditional hunting or other legitimate sporting function. They are designed for the purpose of killing large numbers of the enemy in battle. It is folly to allow arms dealers to profit by selling such lethal military weaponry to the general public under the fabricated and, frankly, idiotic rationale that our nation’s Founders intended to aid and abet the citizenry to commit treason by waging war against their own constitutional government. This grotesque distortion of the Second Amendment and its complicit acceptance by elected officials whose campaign coffers have been filled by NRA donations, has transformed our schools, shopping malls, churches, concerts, movie theatres, and all places of public gathering, into killing fields and slaughterhouses. It is simply a lie to say that this is what the Constitution requires. It emphatically does not. The same Founders who authored the Constitution and the Bill of Rights, also recognized and declared that each of us have an unalienable right to Life. “Unalienable” means that our right to live cannot be sold, transferred, or subordinated to the arms industry’s unquenchable thirst for profit. The Second Amendment does not override or negate the other rights enshrined in the Constitution and our nation’s heritage. We the People need to take back our schools, churches, places of public assemblies, our children’s lives, and the lives of all other innocents and make them safe again, protected from the profit-motive of the weapons industry and the “look the other way” legislators, whose political allegiance has been compromised by campaign donations. The trite and meaningless response of “our thoughts and prayers are with you” is an insulting shrug of indifference and rejection of any action to stop the flow of this weaponry into our culture. Our children deserve more from us.

While the Supreme Court, in the case of District of Columbia v. Heller, ruled in a 5–4 split in 2008 that the Second Amendment did create an individual right to own a firearm for traditional self-defense purposes, that decision was limited on its facts to a handgun possessed by a homeowner within his own residence. More recently, on February 21, 2017, the Fourth Circuit in Kolbe v. Hogan, noted that the Heller decision specified that “weapons that are most useful in military service — M-16 rifles and the like — may be banned” without infringement upon the Second Amendment right and on that basis upheld Maryland’s Firearm Safety Act, which banned assault weapons and large-capacity magazines. As the Kolbe court explained:

Whatever their other potential uses — including self-defense — the AR-15, other assault weapons, and large-capacity magazines prohibited by the FSA are unquestionably most useful in military service. That is, the banned assault weapons are designed to “kill[ ] or disabl[e] the enemy” on the battlefield. See J.A. 735. The very features that qualify a firearm as a banned assault weapon — such as flash suppressors, barrel shrouds, folding and telescoping stocks, pistol grips, grenade launchers, night sights, and the ability to accept bayonets and large-capacity magazines — “serve specific, combat-functional ends.” See id. at 1120. And, “[t]he net effect of these military combat features is a capability for lethality — more wounds, more serious, in more victims — far beyond that of other firearms in general, including other semiautomatic guns.” Id. at 1121–22.

There is hope that the courts will reject the NRA and weapons industry’s attempt to saturate our society with the most lethal military weaponry that in any sane country would be limited to military arsenals and strictly restricted to military use, in time of warfare, and under a rigid chain of command. The carnage and mass murders we are experiencing today is the direct and inevitable result of policies that expand access to such weaponry to the public at large.

1. Washington Post article by Peter Finn, 3/13/2013.

2. The New York Review of Books to Keep and Bear Arms an article by Gary Wills, 9/21/1995 issue.

How to Save Our Children from the Gun Industry and the NRA

First published March 1, 2018

In a previous article, I described how, beginning in the 1980s, the arms industry and the NRA initiated a propaganda machine to recast the Second Amendment into some sort of deranged mandate to arm private citizens with military weaponry so that they could wage war and commit Treason against their own government (The Distortion of the Second Amendment). Their propaganda is nonsense. While the Supreme Court has recognized that the Second Amendment confers a limited right for a private citizen to possess a handgun for self-defense purposes in his or her home, it expressly declined to extend the contours of that right to military weapons (M-16 rifles and the like), and constrained its holding to the “sorts of lawful weapons that [citizens] possessed at home” at the time of the enactment of the Amendment. District of Columbia v. Heller, opinion of the Court, p. 55. As recently held by the Fourth Circuit Court of Appeals, “weapons that are most useful in military service — M16 rifles and the like — may be banned” without infringement upon the Second Amendment right. Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017).

But the Courts are not Legislatures. While they can limit the NRA/arms industry’s expansive and self-serving interpretation of the Second Amendment, they cannot enact the laws necessary to ban or curtail the commercial sale of military weaponry to the general public. Only Congress and State Legislatures have that authority and this is where the distortions of the Second Amendment and related misinformation tactics have been most effective. How often do we hear NRA spokespersons say they are only supporting the “constitutional rights” of gun owners by opposing virtually any and all efforts to control and regulate commercial gun sales? How often do we hear complicit and obeisant lawmakers explain that they cannot vote for sensible gun control legislation “because of the Second Amendment?” It is all a lie. The Constitution nowhere requires the arming of citizens with military weaponry. It is simply a convenient excuse for legislators to kowtow to arms industry demands by pretending their hands are tied by the Constitution. They are not. They can act if they have the courage to do so, i.e., to stand up to the pressure and financial clout of the NRA and arms industry. When politicians tell you they would charge into a school under siege by an AR-15 armed shooter to save the children, ask them why they are not courageous enough to protect the children by promoting legislation that would disarm the shooter in the first place.

A few more points I wish to make: A model of the NRA political tactics is found in its promotion of the so-called “Hearing Protection Act” before Congress, which is euphemistically characterized as legislation to protect the health of shooters by removing restrictions on silencers (a.k.a. suppressors) to reduce the noise from their firearms. Of course the title of the proposed act is a much better sound byte than the “Assassin Protection Act,” and I give their PR people credit for that, but are we really supposed to buy into the notion that this is about hearing loss issues when if you check the facts even the military, with all of its extremely loud military weaponry, does not use “silencers” for ear protection but instead opts for external ear protection product. https://everytownresearch.org/h-r-367-is-dangerous-and-unnecessary-would-make-it-easier-to-buy-silencers-illegally/.

A second point, these military weapons (silencers are merely h’orderves) the NRA/arms industry is pushing on the culture of America are exponentially more dangerous, destructive, and harmful to civilian life than the traditional handguns and sporting rifles of our parents’ generation. To put it in the words of an ER physician who responded to the school shootings at Parkland, Florida:

In a typical handgun injury, which I diagnose almost daily, a bullet leaves a laceration through an organ such as the liver. To a radiologist, it appears as a linear, thin, gray bullet track through the organ. There may be bleeding and some bullet fragments.

I was looking at a CT scan of one of the mass-shooting victims from Marjory Stoneman Douglas High School, who had been brought to the trauma center during my call shift. The organ looked like an overripe melon smashed by a sledgehammer, and was bleeding extensively. How could a gunshot wound have caused this much damage?

The reaction in the emergency room was the same. One of the trauma surgeons opened a young victim in the operating room, and found only shreds of the organ that had been hit by a bullet from an AR-15, a semiautomatic rifle that delivers a devastatingly lethal, high-velocity bullet to the victim. Nothing was left to repair — and utterly, devastatingly, nothing could be done to fix the problem. The injury was fatal.

What I Saw Treating the Victims from Parkland Should Change the Debate on Guns, https://www.theatlantic.com/politics/archive/2018/02/what-i-saw-treating-the-victims-from-parkland-should-change-the-debate-on-guns/553937/.

This is what military weapons are designed to do. They are not sporting or hunting weapons. They are killing machines, designed for mass annihilation and lethality against enemy combatants in warfare. What rational society authorizes the distribution of such weaponry to the general public?

Third point, the easy access to and availability of the mass killing machines to anyone who wants them. I went online, Googled “military weapons for sale,” and within less than a minute found sites for buying and selling not only AR-15s and other military assault rifles, but also machine guns, silencers, explosive devises, and other highly lethal weapons of warfare. See, e.g., http://proguns.com/ and https://www.gunbroker.com/. There is no shortage of such arms dealers within your communities.

My final point concerns the congressional immunity granted to arms manufacturers and dealers for any liability to the victims of these mass shootings that would otherwise arise from the production, marketing, and sale of military weaponry to the general populace:

“In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), a federal statute which provides broad immunity to gun manufacturers and dealers in federal and state court. Generally speaking, the PLCAA prohibits “qualified civil liability actions,” which are defined as civil or administrative proceedings which “result[] from the criminal or lawful misuse” of firearms or ammunition.

There are six exceptions to the blanket civil immunity provided by the PLCAA:

1. an action brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct;

2. an action brought against a seller for negligent entrustment or negligence per se;

3. an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;

4. an action for breach of contract or warranty in connection with the purchase of the product;

5. an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

6. an action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.”

Source: Gifford’s Law Center to Prevent Gun Violence, http://lawcenter.giffords.org/gun-laws/policy-areas/other-laws-policies/gun-industry-immunity/.

It is no coincidence that this broad grant of immunity granted by Congress to the arms industry came shortly after the expiration of the Federal Assault Weapons Ban (AWB), which was enacted in 1994 after a series of mass shootings in which the perpetrators used semi-automatic assault rifles and handguns to kill or wound 98 people in Stockton and San Francisco, California, and in Killeen, Texas. The AWB by its terms expired after 10 years (in late 2004), and a different Congress not only refused to renew it, but reversed course and essentially encouraged the sales of assault weapons by enacting PLCAA, which effectively immunized arms manufactures and dealers from civil liability for the inevitable and eminently foreseeable mass shootings following the demise of the Assault Weapons Ban.

Such a double fronted blow by lawmakers — allowing the assault weapons ban to expire and immunizing the arms industry from civil liability for designing, producing, promoting, and marketing the weapons was a deliberate choice. It enhanced the revenue stream of the industry over the lives of innocent victims. It is analogous to — and even more irresponsible — than legislation which would immunize the auto industry from civil liability for marketing automobiles with exploding gas tanks, failing brake or steering systems, etc. Automobiles, at least, are not designed for the purpose of killing large numbers of people. Military weapons, on the contrary, are designed expressly for that purpose.

So how do we save our children from the golden calf of military weaponry that is the center-piece of the fake Second Amendment mythology? First, we must educate ourselves regarding the distortion, misinformation, and political strategies being employed to influence public opinion on the primary question before us: should military grade weapons, which have the primary purpose of killing large numbers of enemy combatants in warfare, be distributed to the public at large?

Second we must not allow ourselves to be fooled by the terminology employed by the arms industry in its efforts to wrap themselves in the flag and Second Amendment to justify unleashing these weapons on society. Silencers are not ear guards; AR-15s, mega capacity magazines, bumper stocks, and fully automatic assault weapons are not for hunting game.

Third, and most importantly, we must hold fast to the concept that we — the parents, teachers, children, and all the people placed in jeopardy by the wholesale distribution of military weaponry by the arms industry — have the moral and legal high ground on this critical issue: nothing in the Constitution mandates the sale of military weaponry such as assault weapons to the public at large. Our Right to Life, which is protected by our country’s founding documents including the Declaration of Independence and the Constitution, easily supersedes the commercial interests of the arms industry in selling such military grade weaponry to the private sector.

The Second Amendment is Not a Death Sentence For Our Children

First published April 5, 2018

In 1981 I was serving as a federal prosecutor in Eugene, Oregon when a shipment of Ruger Mini-14 semi-automatic assault rifles arrived at the County Sheriff’s office. However, the Sheriff had not ordered the weapons — they had been purchased by several prosecutors and investigators within the District Attorney’s office. The Sheriff complained to ATF, the federal agency which enforces federal gun laws, and I coordinated the investigation on behalf of the U.S. Attorney’s Office.

No prosecution ever resulted from the investigation as it was determined that no federal laws were violated in the transaction. But the recent spate of mass shootings perpetrated by domestic terrorists using semi-automatic military weapons reminded me of that 1981 event.

To explain, there was no federal or state legislation banning the sale of semi-automatic assault rifles back then because the arms industry was simply not marketing these weapons to the general public. Sturm-Ruger, the manufacturer of the Mini-14, limited its sales of such weapons to bonafide law enforcement officers (the reason the Sheriff complained to ATF in the first instance was that he disputed whether District Attorney personnel qualified as law enforcement).

In the course of the investigation I was told by ATF agents that Ruger had a policy of limiting its sales of Mini-14s to the military and police because these were anti-personnel weapons unsuitable for legitimate sport or hunting by the public.

But the decade of the 1980s saw a sea change in the attitude and marketing tactics of the arms industry and its close ally, the NRA.

As I have explained in an earlier article, The Distortion of the Second Amendment, the industry began funding articles and seminars to advocate its view that the 2d Amendment was actually disconnected from its prefatory clause, “a well regulated militia, being necessary to the security of a free state…”, and that its real purpose was to enable its citizens to rebel against its own Constitutional form of government (ignoring the paradox that the very same founders that drafted the 2d Amendment had, in the body of the Constitution, defined Treason as waging war against the government).

Thus, the sporting or hunting purpose of arms *1 was relegated to a nostalgic and irrelevant footnote of history in the arms industry’s new found purpose in the 2d Amendment of arming the public so its members could wage war against its own democratically elected government. *2

Here are some sobering and frightening thoughts that flow from the NRA/arms industry’s re-creation of the 2d Amendment and the acquiescence in their narrative by politicians:

1) AR-15s, bumper stocks, large capacity magazines, and high velocity and armor-piercing ammunition are hardly the only military-grade weaponry that will be marketed to the general public under the new version of the Amendment. Logically, if enabling war against the government is its purpose, so also must be the enabling of “winning” the war. One does not take the field against a modern military armed only with semi-automatic assault weapons. The public will need grenades, bazookas, cluster bombs, surface-to-air missiles, etc. Where is it feasible to draw the line? Already the NRA has sponsored legislation to legalize the sale of “silencers” as accessories for AR-15s under the euphemistically titled “Hearing Protection Act.”

2) In 1994, Congress banned semi-automatic weapons after a series of mass-shootings. The ban was temporary — 10 years. When it expired, the NRA sponsored legislation, and Congress passed, a broad immunity statute *3 that essentially protected the arms industry from liability and civil lawsuits stemming from the sale of this military weaponry to the general public after the expiration of the ban. In other words, the industry and Congress knew full well that that the carnage would resume after the ban was lifted and acted to protect the profits generated from the sale of these lethal weapons by placing the revenue out of reach of those killed or injured as a result.

3) Who has the 2d Amendment right to revolt? Typically, under the law, if one conspires to overthrow the government, assassinate government officials, destroy government property, etc., they can and will be prosecuted for violating federal law by plotting and taking steps in furtherance of their actions. If someone supplies them with arms knowing of their plan, he too can be charged for furthering the conspiracy. So if the point of the 2d Amendment is to enable war against the government, and the Constitution is the supreme law of the land, who has the right under the Amendment to acquire the weaponry to do just that despite the criminal laws prohibiting it? I was in law school during the Vietnam War era, and recall the many demonstrations and protests against the war. Are the proponents of this new found interpretation of the Amendment seriously suggesting that the Students for a Democratic Society (SDS) or the Weathermen movement had a constitutional right to take up arms against the government back then, and thus a right to purchase M-16s for that purpose? The nonsense is overwhelming.

4) If waging war against the government is not the reason underlying the 2d Amendment (and clearly it is not), what possible justification is there for selling military weaponry to the public? Profits for the arms industry? The recreational thrill of obliterating targets? Feeding the fantasies of make-believe Rambo warriors? What exactly is the societal good from unlocking the weaponry from the secured and rigid control of the military command structure? The downside is obvious, staggering, and catastrophic: an epidemic of mass shootings at schools, concerts, theatres, malls, churches and other public gathering venues; a never-ending trauma of grief, anguish, fear, division, anxiety, and despair.

5) A nation that is willing to sacrifice its children to satisfy the obsessions of the gun culture cannot survive. The callousness and dark side of the extremists in the gun rights movement is shocking to witness. Students are mocked and belittled for speaking out and demanding answers from the politicians and change. They are called whiners and actors and told to learn CPR. In truth, the political system is failing in its obligation to enact meaningful restrictions on commercial trafficking in weapons of war and those who are most vulnerable have every right to protest what is essentially the sacrificing of their lives for corporate profit. Their courage is admirable, and the shame is on those who are trying to silence them and who contort the constitution to serve their own ends. Every generation has the responsibility to pass on a better world to future generations. The generations that come after ours have an equal right to Life, Liberty, and the pursuit of Happiness.

*1The term “arms” includes, but is not limited to rifles or handguns.

*2 During the 2016 campaign, then candidate Donald Trump suggested at a rally the possibility of a “2d Amendment Solution” if he lost the election. The remark itself demonstrates the utter folly and dangerousness of the Amendment’s distortion.

*3The Protection of Lawful Commerce in Arms Act (PLCAA)