From Guns to Gay Marriage, How Did Rights Take Over Politics? 

Second Amendment

“You came through for me, and I am going to come through for you,” Donald Trump said. It was 2017, and he was in Atlanta, speaking at a meeting of the National Rifle Association—the first time in more than thirty years that a sitting President had addressed the group. Unlike his recent predecessors, Trump did not claim to enjoy shooting skeet (Barack Obama), or doves (George W. Bush), or ducks (Bill Clinton), or quail (George H. W. Bush). His connection to the group was purely political. “We want to assure you of the sacred right of self-defense for all of our citizens,” he told the members. “As your President, I will never, ever infringe on the right of the people to keep and bear arms—never, ever.”

The N.R.A. had spent decades teaching politicians to talk like this. The organization was founded, in 1871, as a kind of non-governmental training agency, but it transformed first into a hobbyist club and then into a political-advocacy group until, by the early twenty-first century, it was more or less indistinguishable from the conservative movement and the Republican Party. In a partisan country, “the sacred right of self-defense” became yet another partisan issue, and political scientists have spent years trying to figure out whether the power of the N.R.A. has been more a cause or an effect of this evolution. Four years after Trump’s address, both the organization and the former President are much diminished, at least for the moment. While Trump regroups in Florida, the New York attorney general is suing to dissolve the N.R.A. for a series of financial scandals that seem to involve kickbacks, phantom jobs, and the misuse of private airplanes, and that together create the impression of an organization scrambling to deal with a problem that its founders surely did not foresee: having more money than it could responsibly spend.

The N.R.A. thrived, until recently, by harnessing the power of political abstraction. For decades, the group found ways to portray its project as a defense of liberty, shifting its focus from guns to gun rights, and from gun rights to rights more generally. Gallup polls suggest that the number of Americans living in gun-owning households has trended down slightly, from fifty per cent in 1968 to forty-two per cent last year. But, for an organization that seeks mainly to energize one of the two major political parties, minority status is not necessarily a problem. In a new book, “Firepower” (Princeton), the political scientist Matthew Lacombe shows how the N.R.A. succeeded by embracing its subcultural identity, teaching its people to think of themselves as a “persecuted minority under attack.” In 1989, the group sent members a dire warning, saying that anyone who owned a semi-automatic firearm—“30 million law-abiding Americans,” the N.R.A. estimated—had reason to fear proposed legislation. “You must act now,” the organization declared, “before you become a criminal.”

Lacombe’s book is primarily descriptive, not prescriptive, although he does not conceal his disapproval of the N.R.A. agenda. He notes that the organization has blocked countless gun regulations that score well in opinion polls, and he worries that this kind of activity “subverts the will of the majority.” Most people agree, however, that the “will of the majority” sometimes deserves to be subverted, even if we disagree about when. In 1994, the law professor Lani Guinier published “The Tyranny of the Majority,” a sharp collection of essays arguing that certain minorities, especially racial minorities, had the right not just to vote but to meaningfully share in political power, rather than submit to “majority rule.” (The book was published after Guinier lost a high-profile political battle: President Clinton nominated her as the Assistant Attorney General for Civil Rights, and then withdrew the nomination in the face of controversy; critics said that Guinier espoused reforms that amounted to a “racial spoils system” for Black politicians.) Guinier and the leaders of the N.R.A. had little in common, but they shared a belief in the importance of minority rights. Especially since the sixties, advocates of all sorts have learned to present their causes as demands for the recognition of their civil rights. “As long as your rights to freedom are denied, ours are not secure,” Rupert Richardson, the president of the N.A.A.C.P., said in 1993, when she addressed a landmark rally for gay rights. Using similar language, a Christian activist group told the Times that the rally was a threat to “the silent majority of Americans whose individual rights are at stake.”

Jamal Greene, a legal scholar at Columbia, thinks that all this talk about rights has gone too far. In a provocative new book, “How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart” (Houghton Mifflin Harcourt), he pushes back against what he calls “rightsism,” which in his view makes judges too powerful, and makes it harder for the rest of us to find reasonable solutions to our political problems. When he mocks our tendency to “kiss the hems of the robes of judges,” Greene echoes the view of conservatives like the late Justice Antonin Scalia. “It’s not up to the courts to invent new minorities that get special protections,” Scalia said, in a 2013 speech. The remarks were widely interpreted as a message to his colleagues, who were growing more receptive to the idea that gay people had a constitutional right to marry their partners. But Greene is no conservative; his book is driven by liberal-minded concern about racism and inequality, and is aimed at readers who share this perspective. (Greene happens to be the brother of a prominent social commentator: the rapper Talib Kweli, who once rhymed, “The cops flashing the lights, or passing on bikes / Ask for your rights and they beat you like ‘The Passion of Christ.’ ”) To Greene, the story of the N.R.A. is just one more example of how seductive—and how destructive—the language of rights can be.

Like many of our sacred texts, the Bill of Rights, ten amendments added to the Constitution in 1791, is a familiar document that comes to us from a deeply unfamiliar world. Greene writes that the First Amendment—which forbids Congress to prohibit the “free exercise” of religion, or to curtail “the freedom of speech,” and which today constrains the regulation of everything from political campaigning to pharmaceutical advertising—was originally meant to shield not individuals but “local political institutions” like churches from federal interference. Arguments about the Second Amendment, which guarantees “the right of the people to keep and bear Arms,” often center on the significance of its opening phrases, which stipulate the importance of maintaining a “well regulated militia.” One purpose of such a militia, in post-Revolutionary America, was to put down rebellions of enslaved people, who in some states constituted a large portion of the population; in 1998, the legal historian Carl Bogus published an influential essay suggesting that this was the hidden purpose of the Second Amendment. “If there should happen an insurrection of slaves,” Patrick Henry declared, during a debate over ratification, in 1788, the states “ought to have power to call forth the efforts of the militia, when necessary.”

“All those people . . . they’re going to fill up on bread . . . and I’m powerless to warn them.”
Cartoon by Ellis Rosen

The N.R.A. does not quite date back to the militia era. It was founded just after the Civil War, in New York, and its mission evolved in synch with its complicated relationship to the government. Especially in its early years, the N.R.A. provided marksmanship training, partly to make sure that citizens would be able to help the military defend America. Lacombe refers to the organization’s approach during those decades as “quasi-governmental,” although the government did not always see it that way. Starting in the nineteen-thirties, the N.R.A. turned its attention to fighting proposed laws that would limit the sale or use of guns. Lacombe analyzes the language used in the group’s magazine, American Rifleman, which cast gun owners as patriots crucial to the project of defending America. The N.R.A opposed mandatory gun registration, insisting that it could be a first step toward confiscation; in an editorial from 1940, the group suggested that British gun regulations had left that country “disarmed and gun-ignorant,” and therefore vulnerable to both criminals and foreign invaders.

One of Lacombe’s most surprising findings is that N.R.A. messages did not always foreground the constitutional right to bear arms. Using a technique called automated topic modelling to track the group’s evolving messages, he found that the Second Amendment became a major focus of the N.R.A. only in the nineteen-seventies. In the aftermath of the assassination of President John F. Kennedy, debates over gun laws were growing more heated, and the group’s reputation more polarizing. As a consequence, the N.R.A. began to deëmphasize the theme of “military preparedness.” The group spent less time asking what citizens could do for their government and more time asking what their government might try to do to them. N.R.A. editorials that cited the Second Amendment, Lacombe found, tended to portray guns as a means with which to resist “tyranny from one’s own government.” The group’s opposition to gun restrictions grew closer to total; the right to bear arms was “America’s first freedom,” the one right that prevents the government from taking away all the others.

Rights exist to protect minorities, and so rights groups typically conceive of themselves as minority-rights groups, defending a besieged few from a threatening many. This explains why, paradoxically, the N.R.A.’s embrace of Second Amendment arguments led the group to become less focussed on guns and more focussed on partisan and cultural concerns. In 2016, the group started a video network, NRATV, which sometimes made headlines with provocations wholly unrelated to firearms; one notorious segment mocked a diversity initiative on “Thomas & Friends,” the children’s show about talking locomotives, by depicting the trains wearing Ku Klux Klan hoods. (NRATV was shut down in 2019, amid a growing dispute between the N.R.A. and the advertising agency that helped run the network.)

In Trump, the N.R.A. found first a candidate and then a President who shared its cultural preoccupations, even if he didn’t always share its staunch opposition to new gun restrictions. After seventeen people were killed at a school shooting in Parkland, Florida, in 2018, Trump announced that he would support a law allowing police officers to disarm anyone deemed dangerous, without an initial court order. “Take the guns first, go through due process second,” he said, during a televised meeting. His Administration never pursued that proposal, but later that year it unilaterally banned bump stocks—mechanical accessories that enable semi-automatic guns to fire continuously, like machine guns, which are much more heavily regulated. The N.R.A.’s response to the ban was notably mild: a spokesperson told the Associated Press that the group was “disappointed.” A much stronger response arrived earlier this year from an appeals-court judge, who ruled, in an ongoing lawsuit over the ban, that the Trump Administration had overstepped its authority, possibly in a way that could threaten “the people’s right to liberty.”

The N.R.A.’s legal strategy was evidently well chosen. Today, Americans have freer access to firearms than the citizens of any other country in the world, and the Supreme Court recently accepted a case that may clarify precisely where, and how, we are entitled to “bear arms.” The historian Carol Anderson thinks that America’s singular relationship with guns reflects its singular history of racism. In “The Second: Race and Guns in a Fatally Unequal America” (Bloomsbury), she writes that the Second Amendment was “designed and has consistently been constructed to keep African Americans powerless and vulnerable.” Anderson’s book is a bracing reminder that the defense of rights is not necessarily a liberatory project. She notes that a 1792 law, meant to encourage the kind of “militia” formation called for by the Second Amendment, required every “free able-bodied white male citizen” to arm himself. In the nineteen-sixties, armed demonstrations by the Black Panthers in California inspired Ronald Reagan, then the governor, to sign the Mulford Act, which made it illegal to carry loaded firearms in public. The N.R.A. supported the law, and, according to a contemporaneous newspaper account quoted by Anderson, an N.R.A. representative was satisfied that the law would “not affect the law-abiding citizen, sportsman, hunter, or target shooters.” (The unmistakable implication was that no member of the Black Panthers could be described as a “law-abiding citizen.”) And Anderson begins her book with the story of Philando Castile, the Black man who was shot to death by police in 2016, during a traffic stop, after telling them that he was carrying a gun, for which he had a permit. The killing set off a wave of protests, but the N.R.A. conspicuously declined to join in. For Anderson, this is a sign that the organization did not truly support gun rights for everyone—that its agenda was merely an extension of the eighteenth-century white-militia movement.

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