Ninety years ago today, in the December edition of American Rifleman, the National Rifle Association (NRA) published the editorial “Merry Christmas—And Gun Laws.” The editorial’s anniversary is noteworthy for two reasons. First, its publication marked the first time that the NRA provided guidance as to the types of firearms legislation the organization would and would not endorse. Second, the editorial highlights a key issue of dispute between the parties in this week’s Supreme Court case New York State Rifle & Pistol Association v. City of New York.
When “Merry Christmas—And Gun Laws” was published, the NRA had been involved in the political fight against restrictive firearms legislation for just two years. And over those two years, while the NRA indeed published several editorials that were critical of restrictive firearms legislation, the NRA had yet to publish anything usefully constructive. For this reason alone, “Merry Christmas—And Gun Laws” is historically significant.
Substantively, the article contained a total of nine “guiding policies” regarding firearms legislation, with five of the nine touching upon the NRA’s primary mission of promoting marksmanship. These included supporting: 1) the passage of congressional appropriations for National Rifle Matches; 2) continued War Department support for NRA affiliated clubs and “such increased [congressional] appropriations…to continue this assistance”; 3) the passage of state appropriations and financial assistance to “civilian rifleman”; 4) the passage of municipal ordinances “granting additional pay to policemen for qualification with small arms”; and 5) the passage of municipal ordinances “permitting the installation of safety-type rifle ranges in municipal parks,” with the “expense to be borne either by the municipality or by the local civilian rifle clubs, or jointly by both.”
The NRA’s remaining four “guiding policies” concerned firearms controls, or what was otherwise referred to by the gun rights advocates in the mid-to-late 1920’s as “anti-gun laws.” These four policies included: 1) supporting “legislation requiring dealers to keep adequate records of firearms sales”; 2) supporting “legislation requiring a man to obtain a permit to carry a gun concealed, as long as proper provision is made in the law to enable any honest man who is a member of a properly organized target-shooting club to carry his gun to and from the target range”; 3) opposing “any law requiring a permit in order to purchase a gun or to keep it in his home or place of business”; and 4) opposing “legislation providing for the granting of gun permits only to those individuals who take out hunting licenses.”
If one compares these four “guiding policies” on firearms controls with the NRA’s position today, there is much to discuss. For instance, in 1929, the NRA did not oppose or even concern itself with laws requiring all firearms sales and purchases to be properly recorded. Today, the NRA opposes the collection of such records under the auspices that the United States government—or some invading country—will at some point use this information to confiscate all firearms. But perhaps the most important of the four guiding policies—at least in the context of this week’s Supreme Court case New York State Rifle & Pistol Association v. City of New York—is that of armed carriage in public places.
In 1929, as a matter of principle and constitutional law, the NRA did not object to the concept of “good cause” or “may issue” permitted armed carriage. In 1934, NRA president Karl T. Frederick succinctly outlined the NRA’s position in this regard, stating, “I have never believed in the general practice of carrying weapons…I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.” Yet today, as can be seen in several NRA legal challenges to armed carriage permitting schemes, as well as the NRA’s briefs in New York State Rifle & Pistol Association v. City of New York, the NRA advances a much broader view of the Second Amendment.
The question that the Supreme Court will need to answer—assuming (and quite a large assumption at that), of course, the case proceeds to the merits—is how, if at all, does this history matter? In answering this question, the Court will have to work through several sub-questions, such as, does the NRA’s 1929 position on the constitutionality of severely restricting armed carriage have any bearing on the outcome of the case? What about similar statements made by NRA officials from the 1930s through the late 1970s, i.e. that state and local governments maintained broad police powers to both permit and restrict the carrying of firearms in public places? Should the Court give any weight or consideration to the modern, living constitutionalist conception of the Second Amendment, i.e. that state and local governments must afford individuals some outlet to carry firearms in public places?
If New York State Rifle & Pistol Association v. City of New York proceeds on the merits, what is certain is that the Second Amendment will exist beyond the home in some form. And if history and tradition must serve as the Court’s guide, as I have outlined in an amicus brief, there should be a minimum, basic right to transport firearms for historically lawful purposes, such as from one’s home to business, and vice-versa, for repairs, from and to the firearm’s point of sale or purchase, and for shooting activities such as hunting and target shooting. Such a right in fact comports with the NRA’s 1929 “guiding policies.” While the NRA did not object to permitting and restricting armed carriage in public places, the NRA outright opposed the idea of prohibiting the transportation of firearms for lawful purposes, particularly the transport of firearms “to and from the target range” and on “hunting trips.