By Amy Spooner
U-M Law
Shootings — from gang violence and random robberies to massacres like those at Sandy Hook Elementary and Pulse Nightclub — make seemingly daily headlines.
And fiery political rhetoric surrounds the guarantees and limitations of Americans’ right to keep and bear arms.
So it is hard to remember that the Second Amendment hasn’t always been front and center in national conversation.
“When I was in law school, my Con Law casebook was a lot thicker than yours,” former NRA President Sandra Froman recently told a crowd of Michigan Law students, “and nowhere in it was a Second Amendment case. When I later taught, I used to call it the lost amendment.”
Froman, who served from 2005 to 2007 as NRA president — a volunteer role made famous by her predecessor, Charlton Heston — addressed a standing-room-only crowd as part of an Oct. 27 conversation on gun control with Michigan Law Professor Len Niehoff.
The talk was sponsored by MLaw’s Federalist Society.
The 2008 U.S. Supreme Court case District of Columbia v. Heller brought the Second Amendment to prominence in both case law and social discourse, said Froman and Niehoff.
Prior to that, the high court most recently had interpreted the Second Amendment in U.S. v. Miller, in 1939.
In a 5-4 ruling in Heller, the court found that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home.
Justice Antonin Scalia wrote the majority opinion, and Niehoff said that by endorsing the theory of individual rights and striking down the District of Columbia’s strict gun laws, “the opinion presents as an exercise in Scalia’s interpretation of originalism.”
Yet by focusing on self-defense in the home, and excluding the carrying of firearms in sensitive places such as schools and government buildings, he noted many felt that he wasn’t completely true to his originalism roots.
“It would be a dramatic understatement to call the opinion a mixed bag,” Niehoff said. “And a lot of the criticism of the Heller decision stems from the highly selective nature of the texts that Justice Scalia referenced in order to write it.”
With violent crime an ongoing problem, Froman and Niehoff agree that people of radically differing opinions must work together to find common ground.
“We can’t discount the magnitude of the problem,” Niehoff said, “but how do we correctly describe what the problem is? Gun control is a very easy place for politicians and policymakers to posture without really solving anything.”
He agreed with Froman and the NRA that an assault weapons ban is “largely symbolic,” but the two speakers debated animatedly on the pros and cons of closing the alleged loophole that can allow people to purchase firearms from unlicensed dealers at gun shows without submitting to a background check.
“I don’t believe there is a loophole,” Froman said, “and what you’re proposing creates an undue burden on law-abiding people who are selling personal property.”
She also cited numerous cases of agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF) stopping straw purchases and other illegal activity at gun shows.
“The ATF has limited resources,” Niehoff argued, “so instead of having agents travel across the country to gun shows, why not just close the loophole?”
Froman countered that instead of creating new laws, the effort should be focused on enforcing those that already exist.
She cited data that show a very small fraction of the people who are denied an opportunity to purchase a firearm go on to be prosecuted.
“What is the point,” she asked, “of requiring background checks on private, non-dealer sales at gun shows or elsewhere if prosecutors are not prosecuting felons who try to buy a gun from a dealer now? More laws, without robust enforcement, only burden the law-abiding and do nothing to prevent crime.”
And for claims of the lives that would be saved by closing existing loopholes or banning assault weapons, Froman said she can point to lives that have been saved by someone having a gun when it was needed.
“But those aren’t sexy headlines for the media,” she said.
She implored politicians to have the courage to “do the right thing, even when it’s hard” and went on to quote a portion of Scalia’s opinion in Heller: “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
In a contentious election season, Froman defended the NRA’s political ads that warn of presidential candidate Hillary Clinton’s desire to infringe upon the Second Amendment.
“These ads warn that Hillary will take your guns because we believe that Hillary will take your guns,” Froman said. “She believes that the Heller case was wrongly decided, and I think she will want to see it overturned.”
Niehoff, an avid hunter who also teaches firearm use for self-defense, countered, “I worry about a lot of things, but I don’t worry about Hillary Clinton taking my guns. When your success is based on fear-driven fundraising, it’s best to keep people scared.”
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