How the NRA and the Arms Industry Strategically Changed Second
Amendment Jurisprudence to Make America a Killing Zone

By Thomas Coffin

Nine years ago the Washington Post published an article on national security titled “NRA money helped reshape gun law” by Peter Finn (3/13/2013). The article traced how, beginning in the 1970s, the NRA began sponsoring legal seminars, funding legal research and encouraging law review articles that advocated a novel interpretation of the Second Amendment which divorced the right to “keep and bear arms” from its prefatory rationale, “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.”

As Carl T. Bogus, Professor at Roger Williams University of Law in Rhode Island and editor of “The Second Amendment in Law and History” has pointed out, it is dubious to assume that the NRA funds such scholarship out of academic interest, rather than strategically in pursuit of a political objective.

Professor Bogus further observed that prior to this NRA-sponsored 20th century new look at the 18th century amendment, it was a settled question and the overwhelming consensus bordering on unanimity that the Second Amendment granted a collective right enjoyed by the States, not individuals. The authority of the States to regulate the possession of firearms was essentially unquestioned.

But the proliferation of the scholarship funded by the “strategic” arms industry resulted in what has been described as one of the most successful attempts to change the law and a legal paradigm in our history. Over a period of approximately 20 years between 1980-1999, as NRA support began to be felt, 125 articles on the Second Amendment were published in academic journals, 79 of which advocated interpreting the Amendment to confer an individual right as opposed to a collective right to ownership of firearms.

Among those publications were some which articulated that the core purpose of the Second Amendment was to create the means for citizens to rebel against the very government that the Founders created with the adoption of the Constitution.

The strategy to change that consensus was successful. It certainly reached the attention of Justice Clarence Thomas, who in 1997 wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the right to keep and bear arms is…a personal right.” And in 2008, in the case of District of Columbia v Heller, the Supreme Court, in a 5-4 split with Justice Scalia penning the majority opinion, ruled that a homeowner had an individual right to possess a handgun in his own dwelling for purposes of self-defense.

But the Heller case did not address military grade weaponry, nor did it give any recognition to the notion of citizens having a right to such weaponry for the purpose of rebellion against their own Constitutional democratic Republic.

Yet this fig leaf cover of rationale remains as a cancer on society and is the most pernicious aspect of the arms industry’s deceptive campaign to revive falling profits by marketing semi-automatic assault rifles to the general public.

But “A well-regulated Militia” is still very much “necessary to the security of a free State”, and the Heller case does not hold that the States lack authority to regulate in the area of firearms. By failing to regulate the commercial trafficking of assault rifles and other military weaponry to the private sector, we have essentially created an army of “unregulated” militias such as Proud Boys, Oath Keepers, Three Percenters, Wolverine Watchmen, the Klan, and other so-called “citizen militias” and even, frankly, street gangs to whom the industry sells these weapons. We have witnessed the calamity of such groups wielding such weaponry, such as Kyle Rittenhouse functioning as a self-appointed dispenser of vigilante Justice and using his AR-15 to kill two protestors and wounding a third in Kenosha, Wisconsin.

Civil order and law enforcement are no tasks for those lacking training, a rigid command structure, and a commitment to the rule of law and the constitutional criminal justice system. Any authorized use of deadly force is dependent on a professional assessment of the degree of threat presented by the object of such force and such use of force and techniques of de-escalating its necessity is an integral part of intensive training of those entrusted and certified as peace officers. This authority cannot and must not be transmitted to unschooled vigilante “citizen militias.” Even more alarming, we have allowed these weapons to be easily sold to purchasers associated with organized crime syndicates, cartels, and other criminal elements both foreign and domestic.

Statistics demonstrate that the commercial trafficking in military weaponry following the arms industry’s strategic campaign to re-cast the Second Amendment has ushered in a surging increase of mass shootings of innocent victims, beginning in the 1970s and 1980s. A 2015 Congressional Research Service Report reflected that from 1999-2013 there were 317 mass shootings with 1554 victims killed and 441 wounded. Assault weapons/military grade weapons were used in 25% of the episodes. More recently, a 7/7/21 article in the Washington Post indicated that 1800 victims had been killed or injured in just six months during mass shootings

(https://www.washingtonpost.com/politics/2021/07/07/2021-has-already-been-very-bad-year-mass-shootings/).

Additional research discloses that when assault weapons and high capacity magazines were used in mass shootings, there were far more deaths and injuries inflicted on the targets. Between 2009-2020, the deadliest mass shootings in the United States all involved the use of assault weapons and/or high capacity magazines: Sandy Hook (2012, 27 fatalities), Orlando (2016, 49 fatalities), Sutherland Springs, Texas (2017, 26 fatalities), Las Vegas (2017, 58 fatalities), Parkland, Florida (2018, 17 fatalities), El Paso, Texas (2019, 22 fatalities). In short, assault weapons produced six times the casualties of other firearms in mass shooting incidents.

This statistic should not surprise anyone familiar with such weapons. Assault rifles and semi-automatic firearms were designed by the arms industry to the specifications of the Department of Defense specifically for use in combat against enemy forces, with the purpose of inflicting maximum lethality and casualties. The high velocity ammunition has an explosive impact when it enters the body of its target and, according to a trauma surgeon who treated the victims of the Parkland school shooting, shreds the organs leaving nothing to repair (What I Saw Treating the Victims from Parkland Should Change the Debate on Guns). These are weapons of war, and the need for “well regulated” government control of such weapons is self-evident. They are but a minuscule degree apart from a machine gun, separated only by a switch which can easily convert them into a fully automatic mode. The switch is readily available on the black market, and, even without the conversion kit, large capacity magazines make the differences even more negligible.

Recently a federal judge in California ruled that the popularity of the AR-15 firearm and other assault weapons itself insulates them from regulation per the Second Amendment and the Heller decision. That ruling is on appeal, and itself exposes the flaws and inanities in the arms industry’s propaganda campaign. The “popularity” of such weaponry is measured by revenue generated from sales to gun owners—in other words, criminal organizations, mass shooters, insurrectionists, street gangs, drug cartels, etc. are included in the mix to determine popularity and thus preclude any legislation to ban commercial sales of them. No input or surveys, however, are done or considered to ascertain the opinions of the public at large, which would include victims of shootings, their families, students, teachers, and the entire population who are impacted by the threat presented to them by the proliferation of such military weaponry within the private sector.

Unfortunately, we have witnessed little in the way of a counterpoint to the arms industry narrative and its funded campaign to change the legal paradigm of Second Amendment jurisprudence. Mainstream media in general has not focused on this latter-day shift in thinking nor its genesis in corporate interests in revenue from the sales of military grade weaponry, nor has Congress addressed the vicious cycle of preventable mass shootings in any meaningful way. Worse, Congress has even passed legislation, at the behest of the NRA, to immunize the arms dealers from liability for the ongoing carnage being inflicted on the public by the trafficking of such weaponry (The Protection of Lawful Commerce in Arms Act, 2005). The Nation is constantly grieving the loss of loved ones from a mythical concoction of a Second Amendment which elevates profit above lives, but this was never the intent of our Constitution. It defies reason and common sense to define the Second Amendment in such a way as to consider it as banning government regulations necessary to protect innocent victims, including children, from being murdered with the very Arms the Founders intended to be necessary for their security and freedom.

The NRA and arms industry would never have succeeded in attempting to amend the Constitution to achieve the murderous license that the Second Amendment is today being interpreted to represent. The core purpose of the Amendment was emphatically not to promote civil war, destroy domestic tranquility, enrich the manufacturers of weapons of war, or enable mass shootings.

Recently Wee 1 Tactical, a gun manufacturer in Illinois, launched a promotion to sell pint-size light weight AR-15 assault rifles (the JR-15) to adolescents. These are fully functional, semi-automatic firearms which the manufacturer promises “pack the same deadly punch as the full-sized version of the AR-15.” One can easily imagine the teenage infatuation with the means to give vent to all his most vile emotions with such destructive power, the magnetic pull or abject fear among his classmates, and the temptation for his peers to possess the same “man card” (a slogan used in an advertising promotion by Remington Arms with a similar semi-automatic firearm that was the instrument in the Sandy Hook school shooting).

Without the slightest exaggeration, this is as volatile, dangerous, and debilitating as child pornography. The idea that the Second Amendment grants an absolute right to commercially traffic in such weapons is just as insidious.

We can and we must do better.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020.

He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School.
Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.
The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

Posted 3.30.2022