Moses and the NRA

Moses has been elected vice-president of the National Riffle Association (NRA), and his career move has significantly disrupted my peace of mind. You see, to me Charlton Heston has always been the white-bearded patriarch standing atop Mount Nebo at the end of Cecil B. DeMille's "The Ten Commandments", bellowing sonorously, "proclaim liberty throughout the land!" to Yvonne De Carlo and John Derek. In fact, I've had to endure feeling slightly blasphemous and sacrilegious for most of my life during Passover seders, as Charlton Heston has been the only image my mind has been able to conjure of Moses. I now nervously await next year's Passover to see if the movie in my mind will feature Moses wielding an AK-47.

Indeed, in an interview with Tim Russert on Sunday's "Meet the Press," Charlton "Moses" Heston came out shooting. Asked repeatedly by Russert why the NRA backed revoking the Brady Bill and was so enthusiastic in foiling the government's attempts to regulate the distribution of semi-automatic and automatic weapons, Heston toed the party line artfully enough to make even the most sanguine gun advocate proud. When confronted with statistics displaying the wide-spread violence and the staggering number of juvenile deaths caused every year by the mismanagement of fire arms, he adopted the Disraeli defense, dismissing statistics as just another sort of lie. In short, Moses was arguing that automatic weapons were no more dangerous than Barbie Dolls and that they should be no more difficult to buy. It was not the patriarch's finest hour.

But my faith in the aging prophet rebounded when he fielded Russert's question on the Second Amendment. Russert produced the text of the statute: "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." Given that the Amendment explicitly justifies the right to bear arms on the grounds that a citizen militia is essential to national security, Russert asked, doesn't that mean that the right is void now that we no longer require a militia? Heston simply said "no"--and he is right.

Indeed, this argument (championed by former Chief Justice Warren Burger, among others), has always seemed goofy to me. Let's suppose for a minute that all of the historical evidence demonstrating the framers' intent to assert the essential civic right of the individual to protect his family and property did not exist (John Adams, class of 1755, and Thomas Jefferson, for example, were explicit about their beliefs; Adams insisted that Congress not "prevent the people of the United States who are peaceable citizens from keeping their own arms"). Even if Second Amendment revisionists were right in arguing that the militia was the sole justification for the right to bear arms, they would still have to accept the fundamental Constitutional basis of that right. The rationale concerning the militia is just that--a rationale. It does not alter or influence the legal right it justifies. Giving citizens the right to bear arms on the grounds that a militia is essential is not equivalent to saying that citizens may bear arms only so long as a militia is necessary.

In fact, the revisionist argument reminds me of a celebrated case that happened several years ago at Cambridge University in England. A student taking his exams called over a proctor and demanded that he be provided with "cakes and ale." When the perplexed instructor refused, the student produced a copy of the 400-year-old Latin Laws of Cambridge, which entitled students to cakes and ale during exams. The student was brought Pepsi and burgers, which were accepted as modern equivalents, but he was later fined five pounds for having neglected to wear his sword.

To be consistent, Second Amendment revisionists would have to argue that, in this case, the student was not entitled to cakes and ale, nor should he have worn a sword because the rationales for those laws no longer applied. In other words, along with the swordwearing statute is an understood rationale: Students must wear swords because swords are essential accouterments for a gentleman and are necessary for self-defense. Since the rationales no longer hold, the argument would go, the law need not be enforced. But that's just not the way it works. No matter their justifications, laws remain laws and rights remain rights until they are repealed or amended based on new sensibilities.

Even those, like myself, who believe in the need to meaningfully regulate fire arms must recognize that these ends should not be achieved by explaining away clear Constitutional text. Only a Constitutional Amendment can make the second amendment say what anti-gun activists want it to say. At least Moses understood that.

Eric M. Nelson's column will resume in the fall.