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

Author:Kopel, David B.
Position:IV. The Age of Reagan through X. Gun Control in the Twenty-First Century, with footnotes, p.1570-1616 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

The loss in federal district court was predictable, because the district judge had already told a television interviewer that he thought the ban was constitutional. The Seventh Circuit upheld the ban 2-1. (295) Dissenting Judge Coffey based his argument for a right to own a defensive handgun in the home not on the Second Amendment, but on the privacy rights protected by the Liberty Clauses of the Fifth and Fourteenth Amendments. (296)

The NRA sought relief in the United States Supreme Court, which issued one of its most highly publicized denials of a petition for a writ of certiorari in October 1983. (297) When the Illinois Supreme Court finally decided the state constitutional law case, it upheld the Morton Grove ban 4-3. (298)

The Morton Grove cases were an important setback for gun rights in the courts, but there was a silver lining for gun advocates. Handgun bans were now a hot button political issue. The growing movement to ban handguns energized gun owners. For NRA lobbyists in the state legislatures, the Illinois bans were the horror story used to convince state legislators that gun bans were a genuine threat. (299) In response, state after state enacted preemption laws forbidding some or all local gun regulation. (300) The impact of these preemption efforts was evident when California's preemption statute was invoked to overturn ordinances banning handguns in San Francisco. (301)

Handgun prohibition turned out to be much more difficult to achieve than Pete Shields had imagined in 1976, when he suggested that it might take seven to ten years to get to a national ban. (302) The handgun prohibition surge that began in the 1970s had stalled. Ultimately, D.C. was entirely alone in forbidding the use of a gun for self-defense in the home. As Jack Balkin has observed, the Supreme Court tends to be more likely to find violations in laws that are national outliers. (303) While it is impossible to know for sure, it is plausible that the outcome of Heller and McDonald is partly attributable to the fact that handgun prohibition remained very rare in the United States, and that no jurisdiction copied D.C.'s ban on home self-defense with a lawfully owned firearm.

Rather than giving up, Handgun Control, Inc. learned how to make effective use of ancillary issues.

The first of these was the "cop-killer bullet." The bullets were formally known as KTW bullets, the name derived from the developers, Dr. Paul Kopsch and two police officers named Turcus and Ward. (304) While ordinary bullets have a lead core, KTW bullets used brass or iron. (305) The KTW bullet has a conical shape, and was designed for shooting through glass or a car door. (306) The bullets were developed for police special weapons teams and had not been available for sale to the general public since the 1960S. (307) They were sometimes called "Teflon bullets," but that was a misnomer, since Teflon is commonly used as a coating on bullets, and it does nothing to make the gun more likely penetrate a bullet-resistant vest. (308)

The "cop-killer bullet" bill introduced by Rep. Mario Biaggi (D-N.Y.) went far beyond banning the KTW bullet. It would have outlawed most of the centerfire rifle ammunition in the United States. (309) The NRA pointed out the broad scope of the Biaggi ban, and the fact that there had never been a case in which an officer was killed by "armor-piercing" ammunition penetrating a vest. (310)

Nevertheless, the NRA was trapped. Its arguments depended on the technical details of ammunition ballistics. While those arguments were sufficient to block the ban in Congress, at the more general level of public debate, the NRA was tagged with supporting "cop-killer bullets." (311) This did lasting damage to the traditional connection between the NRA and law enforcement. (312)

The 1976 Massachusetts and 1982 California handgun campaigns had revealed that many police were gun owners and enthusiasts who strongly opposed handgun prohibition. (313) Many rank and file police supported self-defense by law-abiding citizens and viewed gun bans as unrealistic. (314) Many police also had a long-standing respect for the NRA based on its decades of service in providing firearms training for police departments. (315) The "cop-killer bullet" issue was perfect for driving a wedge between the NRA and its traditional law enforcement allies. For some groups, such as the Fraternal Order of Police (the largest rank and file police organization in the United States), the rift was not fully healed until the twenty-first century. (316)

While Biaggi's ammunition ban would not pass, it did have the effect of blocking progress on the NRA's own flagship bill, the Firearms Owners Protection Act (FOPA), a wide-ranging set of reforms to the 1968 GCA. (317) Finally, the NRA decided to work with Biaggi on a compromise bill. (318) As enacted, the compromise bill banned a category of ammunition that was no longer being produced for the retail market. (319) The bill passed Congress almost unanimously. (320) Biaggi proclaimed the bill accomplished everything he had wanted. (321)

In 1982, NRA Executive Vice-President Harlon Carter fired Neal Knox as head of NRA-ILA. (322) Knox had refused Carter's order to negotiate with the White House over FOPA, believing that Reagan's 1980 endorsement of FOPA meant that the White House should not attempt to weaken or change it. (323)

No one had ever been better than Knox at appealing to the hard core of gun rights activists. After his dismissal, Knox registered as an independent lobbyist and started his own newsletter, the "Hard Corps Report." (324) Thereafter, Knox, as well as Gun Owners of America, would define their space in the gun issue by criticizing the NRA for what they saw as an endless series of weak-kneed compromises, including the 1968 GCA.

Getting the "cop-killer bullet" issue off the table cleared the path for FOPA. The bill passed the Senate 79-15 in 1985, (325) and passed the House 292-130 in 1986, with a majority of Democrats voting in favor. Sponsor Harold Volkmer (D-Mo.) used a discharge petition (requiring a signature of the majority of House members) to spring the bill out of the Judiciary Committee, where Chairman Peter Rodino (D-N.J.) had pronounced it "dead on arrival." (326)

FOPA curtailed ATF's powers of forfeiture, and search and seizure; created due process rules for dealer licensing or license revocation; explicitly outlawed federal gun registration; and declared the Second Amendment to be an individual right. (327)

Because of an amendment added on the floor of the House, FOPA also banned the sale of new machine guns (manufactured after the date that FOPA became law, May 19, 1986) to the public. (328) The NRA successfully challenged the ban in district court, but lost in the Eleventh Circuit, and the Supreme Court denied certiorari. (329) (The challenge had asked that language allowing the sale of new machine guns "under the authority of the United States" be construed to allow sales that complied with the Federal National Firearms Act of 1934. (330))

Although defeated on FOPA, HCI was becoming more effective politically. The organization had a long-standing practice of calling the victims of notorious gun crimes, or their relatives, and asking them to join the organization as gun control advocates. (331) They approached Sarah Brady, the wife of Reagan's well-liked Press Secretary. (332) Brady threw herself into the movement that her husband would later join as well. Eventually, the organization would bear her name. (333) HCI renamed its waiting period proposal for Sarah Brady, and later for Jim Brady. (334) As Republican insiders, the Bradys offered the possibility of taking the gun control message to the Republican establishment.

HCI found another effective issue in the "plastic gun." Today, handguns made in part from plastic polymers are common. (335) They are much more durable, and their light weight makes them popular for defensive carry. (336) But polymer guns were novel when Austria's Gaston Glock introduced his eponymous pistol to the U.S. market. (337) Gun control groups dubbed the Glocks "terrorist specials," claiming that they were invisible to metal detectors. (338) Senator Howard Metzenbaum (D-Ohio) introduced an "undetectable" firearms ban. (339) Ironically, Metzenbaum's bill would not have banned Glocks because they contain enough metal to be easily detectable. (340) But the bill would have banned many small, all-metal firearms. (341)

In early 1988, the Reagan White House was on the verge of endorsing Metzenbaum's bill, at the behest of Attorney General Edwin Meese. (342) The endorsement ultimately was withheld in order to accommodate Vice President George H.W. Bush, who was running for President. (343) Bush had run into trouble on the gun issue not only in 1970 when it cost him the a U.S. Senate seat in Texas, but also in 1980, when he and Ronald Reagan emerged as the leading candidates for the Republican presidential nomination. Reagan gained support among gun owners then by highlighting Bush's support for a "Saturday Night Special" ban. As of 1988, Bush had just bought an NRA Life Membership, was courting the gun vote, and sought to avoid connection with another provocative gun ban. (344)

Even without White House support, Metzenbaum's bill lost by only two votes in the Senate. (345) Again, the NRA compromised, and almost everyone in Congress voted for it. (346) As enacted, the law banned no existing firearms and did nothing to stop using polymers to build firearms. (347) It did require that all new handguns contain at least 3.7 ounces of metal, with the profile of a handgun. (348) After winning the Republican presidential nomination in 1988, George Bush wrote a public letter to the NRA promising to oppose waiting periods, gun bans, gun registration, and other forms of gun control. (349)

Bush's opponent in the 1988 race was Massachusetts Democratic Governor Michael Dukakis. Dukakis had a...

To continue reading