Lee’s note: Here’s a great guest column published in the Hearst-owned website sister-site of the San Francisco Chronicle. It was written by David Cole is the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown Law. The column rightfully credits Marion Hammer, executive director of the Unified Sportsmen of Florida, past president and current board member of NRA, for ensuring that “that liberty lies in our hearts, and is reflected in our constitutional law.”
‘Gunshine State’ redefined our notion of right to bear arms
By David Cole
Updated 8:49 pm, Thursday, June 16, 2016
Ever since the brutal mass shooting at a gay nightclub in Orlando in the early-morning hours last Sunday, Florida has become the focus of nationwide concerns about easy access to guns, and the mayhem such access can produce.
That focus on the Sunshine State is even more appropriate than the American public understands. The state of Florida has long played a leading role in the establishment and expansion of the right to bear arms.
As constitutional rights go, the right to bear arms is of relatively recent vintage. In 1991, then-retired Chief Justice Warren Burger characterized the notion that the Second Amendment protects such aright as one of the greatest frauds perpetrated on the American public in his lifetime. In the uniform view of the federal courts for more than 100 years, the Second Amendment protected only the states’ prerogative to have militias. It afforded individuals no personal rights to own or carry firearms.
But in 2008, the Supreme Court ruled in District of Columbia vs. Heller that the Second Amendment did in fact protect such an individual right to bear arms. What happened?
NRA’s first female president
The answer lies in Florida — and the offices of Marion Hammer, a 4-foot-11-inch grandmother, now in her 70s, who never went to law school but happens to be the most
powerful lobbyist in Florida.
Hammer was the first female president of the National Rifle Association. The NRA itself was primarily a marksmanship, hunting and sport-shooting organization for most of its history. It did not even establish a political arm until 1975, around the same time Hammer became involved in the political fight for gun rights. Both developments were a response to the first major piece of federal gun legislation, the Gun Control Act, passed in 1968 after the assassinations of John and Robert Kennedy and Martin Luther King, Jr.
Hammer and the NRA saw the Gun Control Act as a threat to their liberty, but understood that the federal courts would not be receptive to a constitutional challenge, given their long-standing rejection of an individual right. Instead, the NRA found more sympathetic forums in the states, where gun control advocates were not organized, and where politicians responsive to rural constituents were especially receptive to the need for individuals to own guns for self-defense.
In no small part because of Hammer’s early and effective advocacy, Florida became the NRA’s go-to state, so much so that it is sometimes called the “Gunshine State.”
Under Hammer’s direction, the NRA’s state-by-state strategy started in its most hospitable state, and exported victories won there to other states. First in Florida and then elsewhere, NRA lobbyists fought for amendments to state constitutions to recognize an individual right to bear arms. They pressed for laws requiring state and local governments to issue individual licenses for concealed weapons. They successfully protected gun manufacturers from liability for injuries caused by illegal use of their weapons. These legislative victories created a new environment. By 2008, when the Supreme Court took up the question of a federal right to bear arms, the vast majority of states already protected individual gun ownership rights, thereby easing the way to recognition of a federal right.
Approach developed from bottom up
In this way, recognition of an individual right to bear arms was not imposed from the top down by five justices but developed from the bottom up, through decades of advocacy (in the legal academy, the executive branch and Congress) sponsored by the NRA. And even after the right to bear arms received the Supreme Court’s imprimatur, Marion Hammer and her NRA colleagues, through their political influence in Washington and the state, remain its most significant guardians, notwithstanding the right’s formal recognition in our constitutional law.
This story is not unique to the NRA and the Second Amendment. Often, the key actors in constitutional law are not the justices on the Supreme Court but “we the people,” acting in associations of like-minded citizens, and engaged in advocacy far beyond the federal courts. As Learned Hand, a legendary federal judge, said: “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. … While it lies there it needs no constitution, no law, no court to save it.” Civil society organizations — on the left and the right, whether they are the ACLU or the NRA — help to ensure that liberty lies in our hearts, and is reflected in our constitutional law.
David Cole is the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown Law, and author of “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law,” (Basic Books, 2016). To comment, submit your letter to the editor at http://bit.ly/