The great gun control war of the twentieth century - and its lessons for gun laws today.

• Author: Kopel, David B.
• Position: Introduction to IV. The Age of Reagan, p.1527-1569 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. From the Roaring Twenties to the Calm Fifties A. The 1920s B. The New Deal and World War II C. The 1950s II. Things Fall Apart A. 1966 B. 1967 C. 1968 III. The 1970s A. The Rise of the Handgun Prohibition Lobbies and the Revolt at the NRA B. Handgun Prohibition Efforts in the District of Columbia and Massachusetts C. The NRA Counteroffensive, and the Growing Sophistication of the Gun Control Lobby IV. The Age of Reagan V. George H.W. Bush VI. The Clinton Era VII. The Re-emergence of the Second Amendment VIII. Columbine and the 2000 Election IX. The Great American Gun War Winds Down X. Gun Control in the Twenty-First Century A. No Systems Designed to Impede Responsible Gun Ownership and Use B. No Bans on Common Types of Firearms C. Protection of the Right of Self-Defense D. Judicial Protection of the Right to Licensed Carry, but Not to Unlicensed Concealed Carry INTRODUCTION

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association (NRA) began to get involved in politics and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the twentieth century and into the twenty-first.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. The other side asserted that the right to arms was absolute, and that any gun control laws infringed that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved. The Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws that do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board of Education world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from the national consensus.

1. FROM THE ROARING TWENTIES TO THE CALM FIFTIES

   1. The 1920s

      During the nineteenth century, gun control was almost exclusively a Southern phenomenon. (1) It was concerned with keeping guns out of the hands of slaves or free blacks before the Civil War, curbing dueling, and suppressing the freedmen after the Civil War. (2) The only gun control that found favor outside the region was restricting the concealed carrying of handguns. (3) While openly carrying weapons ("open carry") was considered legitimate and constitutionally protected, concealed carrying of weapons ("concealed carry") was viewed as something that would be done only by a person who was up to no good. (4)

      Towards the end of the century, fears of labor unrest led some states to enact bans on mass armed parades without a permit. (5) Early in the twentieth century, concerns about organized labor, the huge number of immigrants, and race riots in which some blacks defended themselves with firearms led non-Southern states, such as California and Michigan, to enact licensing systems or short waiting periods for handgun purchases. (6) The most famous of these early Northern controls was New York State's Sullivan Law, enacted in 1911, which required permits to own or carry handguns. (7)

      During the same period, communist and anarchist groups often attempted to provoke violence. In November 1917, the Bolsheviks (a communist sect) overthrew the democratic Russian government, which itself had overthrown the czar a half-year earlier. (8) The Bolsheviks moved quickly to seize the moment in history and promote a global communist revolution. (9) Frightened governments in the United Kingdom, Canada, and New Zealand, among others, responded by enacting gun-licensing laws. (110) Fear of Bolshevism and similar revolutionary movements also led to more state and local gun controls. (11) Gun control was no longer peculiar to the South.

      While gun control spread north, the NRA had nothing to say on the subject. Ever since 1871, the NRA had been political only in the narrow sense that it pressed for governmental support of rifle marksmanship training among the American public. (12) In the early twentieth century, NRA lobbying led to the establishment of a federal program to promote civilian marksmanship and to sell surplus military rifles to the public, with the NRA as the designated intermediary between the U.S. military and the civilian population. (13)

      National alcohol prohibition under the Eighteenth Amendment in 1919 spurred an increase in murders and other firearms crimes. (14) Particularly notorious and fearsome was the use of machine guns by gangsters to fight turf battles with their rivals. (15) One such incident, the St. Valentine's Day massacre in Chicago, horrified the nation to nearly the same degree that the Columbine High School murders did in 1999. The general increase in crime resulting from Prohibition led to the first national calls for handgun prohibition. (16) Nationally, the leading voices for handgun prohibition were conservative, Northeastern, urban, upper-class businessmen and attorneys. (17) Pacifists who wanted to end war by getting rid of all weapons, including firearms, also played a role, but they were much less powerful than the business elite, which was used to getting its way. (18) The handgun prohibition movement, however, did not have a wide public following. (19)

      The NRA did nothing in 1901 when South Carolina banned handgun sales, (20) but the nationwide push for handgun prohibition helped spur a new generation of NRA leaders into action. (21) The NRA used its member magazine, The American Rifleman, to inform members about handgun prohibition proposals and urged them to contact legislators. (22) The NRA thus stopped handgun prohibition in every jurisdiction, sometimes by promoting, as an alternative, a model law known as the Uniform Pistol and Revolver Act. (23) The Act prohibited carrying concealed handguns without a license, which was issued only after the applicant was determined to have good character and a legitimate reason for carrying a concealed weapon. (24)

      On the federal level, a 1927 statute prohibited concealable firearms from being shipped through the mail. (25) However, the statute's effect was limited because it did not apply to delivery by package carriers. (26)

   2. The New Deal and World War II

      The repeal of Prohibition by the Twenty-first Amendment in 1933 removed gangsters from the alcohol business and corresponded with a precipitous drop in gun crimes. (27) By this time, however, President Roosevelt's Attorney General, Homer Cummings, was already spearheading a drive for major national gun control.

      Cummings was not a particularly effective Attorney General. Some historians assign him a considerable share of the blame for the Supreme Court holding some aspects of the First New Deal (e.g., the National Recovery Administration and the Agriculture Adjustment Act) unconstitutional. (28) They argue that the statutes were hastily and ineptly drafted, and that the Justice Department's defense of those statutes in court bordered on incompetent. (29) Cummings was, however, highly interested in gun control. His objective was national registration for all firearms, and the de facto prohibition of handguns. (30)

      The first move was the introduction of the National Firearms Act (NFA). As introduced, the NFA would have imposed a $200 tax (in inflation-adjusted dollars, equivalent to $3,255 in 2010) for possessing any machine gun and short-barreled shotgun, plus a $5 tax on handguns. (31) Cummings explained to a House Committee that the tax approach was being used because an outright ban might violate the Second Amendment. (32) Ostensibly to ensure tax compliance, the NFA also required registration of all covered firearms. (33)

      The NRA mobilized. Soon, the NFA's application to handguns was removed from the bill, and with handguns removed, the NRA dropped its opposition. The NFA became law in 1934. (34)

      Once President Roosevelt was re-elected in 1936, Attorney General Cummings came back for his second objective--promoting a national gun registration law. As he put it: "Show me the man who does not want his gun registered, and I will show you a man who should not have a gun." (35) The NRA did not agree. (36) Again, the NRA informed its members through The American Rifleman magazine, and NRA members in turn carried the gun rights message to their representatives in Congress through letters, calls, and personal appeals. (37) The Cummings registration bill went nowhere. (38)

      The NRA enthusiastically supported a different gun control law, the Federal Firearms Act of 1938 (FFA). The FFA required persons engaged in the interstate business of selling or repairing firearms to obtain a one-dollar license before shipping or receiving any firearm in interstate or foreign commerce. (39) Licensed dealers were required to keep a record of firearms sales and were prohibited from shipping guns in interstate commerce to anyone indicted for or convicted of a violent crime or otherwise prohibited from owning firearms under state law. (40)

      Although the NRA's relationship with Cummings was contentious, the group got along well enough with Roosevelt himself, who sent laudatory messages to the NRA at its annual meetings. (41)

      With World War II already raging in Europe and China, Congress in 1941 took steps to improve America's defense posture. One such step was the Property Requisition Act, which gave the...