Newsweek Distorts Precedent, Role of NRA in Gun Ban Case

March 18th, 2008 7:42 PM
The Newsweek article "When Reason Meets Rifles" discusses the case of District of Columbia v. Heller, which was argued before the U.S. Supreme Court today. The basic dispute in the case is whether D.C.'s outright handgun ban and de facto ban on rifles, shotguns, and other firearms are unconstitutional under the Second Amendment. Notice that the bias begins in the title itself, where "reason" and "rifles" are implied to be mutually exclusive concepts.

As background, the Second Amendment to the United States Constitution states: "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." In very basic terms, gun rights advocates argue that the Second Amendment grants citizens a fundamental right to bear arms (the "individual rights" argument). By contrast, anti-gun advocates embrace the more restrictive interpretation that the Second Amendment guarantees a well-armed militia (the "collective rights" argument).

The U.S. Supreme Court has not had a significant Second Amendment case since U.S. v. Miller in 1939. And even that case is of dubious significance. But that does not stop NewsweekMiller as a significant precedent, as the article concludes: from treating
The Supreme Court determined in 1939 in U.S. v. Miller that an individual right to a gun had no "reasonable relationship to the preservation or efficiency of a well regulated militia," and thus the Second Amendment did not confer individual rights to guns.
This conclusion by Newsweek leaves the impression to readers that the central issue of Heller has already been decided on the side of the "collective rights" argument. This conclusion could not be more wrong. Keeping it brief - the Miller case was a very specific holding which involved sawed off shotguns and was never fully litigated on remand (Bob Owens has more analysis in his previous post).

The Supreme Court itself disagrees with Newsweek's conclusion. In the 1997 case of Printz v. United States, the Court stated:
In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense ... The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.
And just today Justice Anthony KennedyMiller as a "defective" precedent. described
Nevertheless, the strength of the misrepresented precedent in Miller is the basis of the rest of its article, and in particular its criticism of the NRA. The article states:
But in the face of the courts' quiet resistance, a well-funded and powerful lobby group, the National Rifle Association, forcefully and effectively pushed the claim that the Second Amendment confers an individual right to bear arms. Four million-plus-members strong, the group has handed out millions of dollars and is credited with winning the 2000 election for George W. Bush. Whatever financial or political clout it has exhibited pales next to its legal influence: polls show that while a slight majority of Americans would support stricter gun laws, about 75 percent of them believe the Constitution confers a personal right to own a gun.
Did you get all that? The tone of the article is that in spite of the Miller precedent, and in spite of a majority who favor stricter gun laws, the NRA has nevertheless changed the national agenda with its funding and membership. And if you weren't already upset with the group, Newsweek reminds you that the NRA helped get George Bush elected. Finally, by alleging the group hands out "millions" of dollars, the article throws out yet another myth as fact, as in order to get to "millions" (plural) in donations, multiple years must be aggregated, or donations from almost six years ago must be taken in isolation. The NRA is actually fairly stingy with financial donations, and has historically averaged about 20% to Democrats.

The article then concludes:
So long overdue is Supreme Court scrutiny in Heller that the Bush administration has staked out one position, while Dick Cheney has taken another (rumors surfaced last week that the administration might change its position again at oral argument). But the more interesting question is whether, absent judicial pronouncements, large constitutional matters will be thrashed out by the people and the democratic process or by well-funded interest groups and well-meaning academics.
While the author might disagree, the distinct impression here is that the Heller case is just another hijacking of the courts by special interests. And while the NRA is not named by name, the reference to "well-funded interest groups" is hard to miss. And don't forget the title of the article.

The implication that the NRA was behind the Heller case could not be further from the truth. In actuality, the NRA spent "years of trying to wreck the litigation and avoid a Second Amendment showdown." But the NRA is the favorite "gun boogeyman" of the liberal media. If you are going to write an anti-gun piece, it is cheap and easy to include the NRA in the analysis.

In this instance, it would not have served the author's agenda to describe the NRA's true role in the Heller litigation. Consequently, it was not included.