NRA Says No 2d Amendment RKBA For You!

The upcoming Supreme Court case of District of Columbia v. Heller has brought out a ton of amici, as one would suspect, ranging from  Jews for the Preservation of Firearms Ownership to  Pink Pistols (Gays and Lesbians for Individual Liberty), to the most natural ally of all, the National Rife Association.  Thanks to  SCOTUSblog and  Doc Berman for putting this all together.

For as long as I can remember, the NRA was the loudest voice against any law that limited the right to keep and bear arms (RKBA amongst those engaged in the struggle).  With fiery rhetoric and cold cash, they fought against every perceived violation of the right of each and every individual to arm themselves, as the Second Amendment said they could.  This was fundamental.  But that was then, and this is now.

All those years of effort are now unbearably close to bearing fruit.  The issue is before the Court.  The scholars are now behind them.  The stars have aligned.  No longer are they the lunatic fringe that liberals claimed them to be, but righteous Americans demanding nothing more or less than what the Constitution guarantees. 

But just as the vision of the Second Amendment has turned around, so too has the NRA.  How odd to see the shoe on the other foot. 

The National Rifle Association argues in its amicus brief to the Supreme Court that the Second Amendment does not apply to felons.  The “Martha Stewart” exception has been born.


This individual right to keep and bear arms is a fundamental right; the Second Amendment on its face describes it as essential to a “free State”—a democratic state free from government tyranny. As with the fundamental democratic rights guaranteed by the First Amendment, laws burdening Second Amendment rights should be subjected to strict scrutiny and struck down in their entirety when overly broad. Petitioners and their supporting attempt to conjure fears of legal bedlam should courts examine firearms laws under strict scrutiny, yet they present no real argument that long-standing laws regulating the ownership and use of firearms, such as laws barring ownership by convicted felons or the insane, would fail to pass muster under that test.

Well, ain’t that something?  It appears that “the people” just turned into “the people we like” when it comes to fundamental, unequivocal rights. 

So “strict scrutiny” provides a test that will allow the government to legislate away the Second Amendment right of Martha Stewart to carry a weapon to protect herself, eh?  The NRA responds to what they characterize as Professor Chemerinsky’s “in terrorem argument” that under their proposed strict scrutiny test for this fundamental right, felons and the insane would still be subject to regulation.  Why?  They don’t say.  They just say they would.  A little dodge and weave around the threat that the Supreme Court might sink their big win if the bad guys get guns too.

This is not going to be as easy as the NRA would like it to be.  As posted here, I see some difficulty in drawing the fine distinctions that the NRA suddenly supports, in contrast to its fundamental rights position.  Will strict scrutiny keep guns (not to mention swords, knives, etc.) out of the hands of felons?  What about felons whose crimes bear no connection to violence?  Or felons convicted 40 years ago?  Or felons whose crime was possession of a weapon, the fundamental right itself?

Heller is going to be one interesting decision.  But the NRA, ever true to its mission, is busy trying to scurry around that little hole it dug for itself over the years, and just keeps digging.

11 comments on “NRA Says No 2d Amendment RKBA For You!

  1. Mike Hansberry

    Is Mr. Heller a felon? No -so that is a question for another day.

    But if the question really keeps you up at night, you might read up on how the various states have answered it. If you do, you will find that it is indeed a difficult question that requires line drawing. But you will also find that it is certainly not a new question posed by the case at hand. The various states have wrangled with that question while recognizing an individual right to keep and bear arms, and it is very likely that the Supreme Court will follow their example.

    Contrary to your implication, the Supreme Court would not have to do any heavy lifting to square an individual rights finding in Heller with any subsequent denial of the RKBA to felons as there is long precedent for doing so.

  2. SHG

    Contrary to your implication, the Supreme Court would not have to do any heavy lifting to square an individual rights finding in Heller with any subsequent denial of the RKBA to felons as there is long precedent for doing so.

     
    I’ll let the Supreme Court know you said so. They’ll be very relieved.

  3. Windypundit

    I have a feeling the Supreme Court will find a way to make their decision somewhat less momentous than people are hoping.

    Maybe a DC-is-a-special-case ruling? Or at least something that will require many more court battles before the gun laws go down all over.

    But if the revolution reaches Chicago, I’m thinking of a nice Smith & Wesson M&P .40 with a tactical flashlight.

  4. Mike Hansberry

    Don’t trouble yourself with the Court(doubtless they already know), but you might have mentioned to your readers in this post and/or the previous (What if ..Everyone) that very many states interpret the RKBA as a broad individual right yet deny the right to bear arms to certain persons such as felons, mental incompetents, etc.

    But then an actual discussion of that fact would have ruined your parade.

  5. SHG

    Maybe the reason that I didn’t make mention it to my readers is because we don’t get our information from neo-con comic books.  Sorry if that disappoints you.

  6. SHG

    It’s possible that they will try to limit the holding, but there’s a lot of scholarly talk that if they are going to flip the 2d Amendment upside down, they will make a clear decision rather than throw the rest of the country into weapon turmoil.  Much of it will depend on how many people can agree on anything.

    If they give only half-way guidance, the potential for a mix of decisions across the country, giving or taking away rights as each sees fit, is very high.  Notwithstanding the insipid nonsense of guys like Mike, the impact of an affirmance with nothing more is huge.   There are a million questions left open, and the Supremes can either make law or wreak havoc.  Lots of voices have been heard from, with an incredible amount of argument on the table, and now they have to do their job.  Or punt.

  7. Other Steve

    Mark – when you purchase that ICBM, will you please change the picture of you on your blawg to one of you posing next to the ICBM? (Perhaps while holding an MP5…)

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