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How the Gun Debate Died
Jim Oliphant
Legal Times
10-22-2002
As the serial sniper continued last week to slice a bloody swath along the rim of the Washington, D.C., metropolitan area, Josh Sugarmann shared the same sense of horror and sadness familiar to anyone shocked by the slayings. But it was tinged with something else: a feeling of profound disappointment, of a moment surrendered in time.
"The history of gun control is a series of lost opportunities," laments Sugarmann, executive director of the Violence Policy Center, a Washington-based firearms policy group.
The Violence Policy Center is the kind of organization that historically has been labeled a gun control group. Except that no one wants to be called a gun control group these days. Not even with an armed killer stalking the suburbs of the nation's capital.
To Sugarmann, the shootings should have sparked a round of public debate about the proliferation of guns in American society. Instead, he found himself witnessing sparring over the need for a national database that would store ballistics information. For him, it was a concrete manifestation of how the gun control movement has lost its traction.
"We're in a very precarious situation," he says. "When something truly horrible like this happens and the gun control movement offers limited responses, it reinforces the idea that gun control can't solve anything."
Indeed, even as the local media turned the shootings into a 24/7 story and the standard-issue experts appeared on television to provide analysis, the notion that policy-makers might seek a way to keep handguns, rifles, sniper scopes or high-caliber bullets off the market was never floated.
In that sense, the gun lobby, led by the powerful National Rifle Association, has secured its greatest victory. In the past three decades, the gun rights movement has altered the very nature of the issue of guns and crime. Where 30 years ago, a president and Congress spoke openly of banning certain types of guns, of licensing and registration, today, that talk is political cyanide.
It's the reason why James Jay Baker, who once served as the chief congressional lobbyist for the NRA before moving on to the Federalist Group, believes that even a ballistics database bill will have a trying time making it out of Congress.
"There will be some news stories on this," Baker says. "Will there be legislation proposed? Absolutely. There already has been. Will there be new laws passed at the end of the day because of this? My crystal ball says no."
SATURDAY NIGHT FEVER
You need a license to have a dog in most places in the United States. Any addition to an existing building usually requires a permit in most neighborhoods. Cars are licensed, taxed and registered. A blender has to be inspected and tested before it's placed on the market. But guns are different. Today, more than ever.
"Guns are the only unregulated consumer product in this country," Sugarmann says.
It's often suggested that guns hold a special place in American society because of their use in repelling the British during the American Revolution and their role in settling the frontier. However true that may be, it wasn't until the 20th century that any form of firearms regulation was even considered.
The impetus for that was the rise of organized crime during prohibition. The first president to call for a national gun policy was Franklin Roosevelt. In 1934, Congress passed the National Firearms Act, which banned certain types of machine guns and taxed all sales of firearms. In 1938, a law was enacted directing firearms dealers to record the names and addresses of everyone to whom they sold guns.
It was also the same time that the U.S. Supreme Court last touched upon the interpretation of the Second Amendment to the Constitution. In United States v. Miller, a 1939 opinion, the high court held that the amendment addressed firearm rights only with respect to state militias. That interpretation remains the guiding precedent for Second Amendment jurisprudence today, despite the efforts of academics and lawyers for the gun rights lobby to persuade federal courts to go further.
"There has never been a straight up-or-down Second Amendment challenge" to any gun regulation, says Stephen Halbrook, a Fairfax, Va., lawyer who specializes in the Second Amendment.
But it was in the 1960s and 1970s that the modern gun control debate took its shape. Following the assassinations of John and Robert Kennedy and the Rev. Martin Luther King Jr., Congress took up the issue, banning the sales of mail-order guns. (President John Kennedy had been killed with one.) Handgun sales across state lines were also restricted, and felons were prohibited from purchasing guns.
And in 1972, during the Nixon administration, the Senate voted to ban the sale of so-called Saturday night specials. (The measure didn't survive the House of Representatives.) At the same time, the Bureau of Alcohol, Tobacco and Firearms was established.
But already, the gun lobby, which was just coming into its own, was scoring successes. At the same time the Senate failed in its attempt to ban cheap handguns, Congress passed the Consumer Product Safety Act, which exempted guns completely from safety regulation.
The battle was joined. Gun activists on both sides of the debate mobilized. The NRA, which until then had been a rather-sleepy organization consisting primarily of sportsmen, reinvented itself as a Washington-based powerhouse lobby dedicated to battling gun regulation after a group of Second Amendment purists seized control in 1977. And the Virginia-based Gun Owners of America, an even more hard-line gun rights lobby group, was formed.
The gun control forces were also emboldened. The 1970s saw the creation of the National Council to Control Handguns (later Handgun Control Inc.) and the Coalition to Ban Handguns. For them, things looked promising.
What they didn't know was that the gun control movement had already reached its peak.
A SECOND FRONT
In the early 1980s, two events altered the gun debate. The first was the attempted assassination of President Ronald Reagan in 1981. While at first it appeared that the shooting would further the gun control effort, the opposite occurred when Reagan subsequently joked about the event, diffusing its impact.
"That knocked the ground out from under us," says Michael Beard, executive director of what was then called the Coalition to Ban Handguns. "We had made wonderful progress."
The second was a 1982 initiative in California that would have banned the sales of new handguns in the state. It failed. Suddenly the gun control forces looked out of step -- so much so that Beard's organization changed its name to the Coalition to Stop Handgun Violence, striking the words Gun Control from its name. (Last year, Handgun Control Inc. followed suit, altering its name to the Brady Campaign and Brady Center to Prevent Handgun Violence.)
"After Reagan's shooting, we just realized that we were pushing the wrong agenda. It was our lowest ebb," Beard says. "It became clear that going after a single instrument itself was not going to cut it."
The gun lobby made further progress in that environment. In 1986, Congress passed legislation rolling back many of the prohibitions contained in the 1968 law. The 1980s also saw the expansion of the Second Amendment argument into both the academic and political spheres. The gun lobby's efforts would pay off handsomely when polls increasingly demonstrated that the majority of Americans believed gun ownership was a constitutional right.
"You just can't put the genie back in the bottle," Beard says. "People really believe the Second Amendment protects guns like no other consumer product."
Another factor surfaced with the rise of crack cocaine use in major cities; the focus began to turn to the use of illegal guns by drug criminals.
"It became a defensive battle," Sugarmann says. "The gun control movement in the 1980s moved from gun control to stopping gun violence."
FROM BANS TO BRADY
The gun control effort had to be redefined and its goals moderated. Opportunity was presented, as it is now, in a horrifying fashion in 1989 when a gunman wielding an AK-47 semiautomatic rifle murdered five children and wounded 29 other people in a schoolyard rampage in Stockton, Calif. The tragedy initiated the drive toward the 1994 federal ban on assault weapons.
The Clinton administration gave the movement its biggest boost, throwing its support behind legislation such as the so-called Brady Bill, which required gun purchasers to submit to background checks in order to ensure they had no felony convictions. It, too, passed in 1994.
Aiding the gun control lobby at the time was some overreaching by the NRA, which had aligned itself politically with the then-burgeoning militia movement born after the 1993 federal raid on the Koresh compound in Waco, Texas. The increasingly conservative stance and harsh rhetoric toward federal agencies scared moderates, especially after NRA member Timothy McVeigh blew up a federal building in Oklahoma.
Successes as they were, the Brady legislation represented the transformed landscape. Banning handguns was off the table. Americans didn't want to hear about gun control.
"The people who say ban all guns just raise money for the NRA frankly," Halbrook says.
At no time was that made clearer than in 1999, when the Columbine school shootings took place in Colorado. Despite the attention the tragedy received, no major gun legislation was passed. In fact, an effort to close the "gun show loophole" -- an exception to the Brady Bill that allows purchasers to buy guns at gun shows without a background check -- collapsed in the House.
"It was one of our critical battles. It really showed the impact of our members," says Larry Pratt, executive director of Gun Owners of America. "We may look back and see it as the turning point in the war."
By that time, Sugarmann says, the gun control movement was now being re-labeled in Congress as a "gun safety" movement. Accordingly, the Columbine shootings served as the basis for the establishment of Americans for Gun Safety, a D.C.-based lobby group that sits squarely in the center of the debate. AGS supports gun ownership, but at the same time backs background checks and a national ballistics database.
"The idea of eliminating guns is unrealistic," says Caleb Shreve, deputy communications director of the organization. "You're not going to get rid of guns when half the households in America have one."
The 2000 election of George W. Bush as president and his selection of John Ashcroft as attorney general solidified the gun rights movement's position. Ashcroft's Justice Department embraced the movement's position on the Second Amendment, marking the first time the federal government had done so.
IN THE HOMELAND
The battle, increasingly, has moved away from Capitol Hill. Several states, such as California and New Jersey, are pursuing their own gun regulation agenda. And organizations like the Brady Center are as dedicated to engaging the gun industry in large-scale tort litigation as they are in lobbying. A California suit against the firearms industry is scheduled to go to trial this spring.
"There are things that litigation can accomplish that legislation can't," says Jonathan Lowy, a senior attorney with the Brady Center. "It's the only way on a national level to put pressure on the industry to make its products safer."
The gun rights lobby hasn't rolled over on that front either. It has been pushing hard in Congress for a law that would grant it special immunity from tort suits. Recently, the measure looked ready for a vote in the House. Then the sniper arrived.
"They were sort of shamed out of voting on it," Lowy says.
Once again, for the gun control movement, tragedy and opportunity were joined. Whether it produces results remains an open question.
Legal Times reporter Deirdre Davidson contributed to this report.
