Defending the Second Amendment

Like a courtroom version of “High Noon,” legal guns are squaring off this year in a confrontation over the Second Amendment.

And whoever wins, the battle will touch off a longtime culture war that rivals Roe v. Wade, said National Rifle Association (NRA) President Sandra Froman in an April 5 visit to Harvard.

Roe v. Wade is the U.S. Supreme Court decision that in 1973 affirmed a woman’s right to abortion, and it intensified a cultural debate that continues today.

The debate over firearms, and how to interpret the 27 words of the Second Amendment, carries the same power to divide, according to Froman, a 1974 graduate of Harvard Law School (HLS). Her evening lecture in Langdell Hall, “The Right to Keep and Bear Arms: What’s the State of Second Amendment Law?” was sponsored by the Harvard Law School Forum.

On two counts, Froman is a sharpshooter on the issue of guns. As NRA president, she is the chief public voice of the most prominent U.S. organization advocating gun rights. Add in that Froman is a crack pistol shot and a certified NRA firearms instructor.

She also knows her law, as a 33-year legal veteran who maintains a private practice in Tucson, Ariz. (She still needs her day job; the NRA presidency, last held by Charlton Heston, is honorary, and includes no salary.)

The HLS Forum’s Benjamin Gould introduced Froman to an audience of 35, saying that Froman calls the 136-year-old NRA “a civil rights organization [that upholds] the one right that protects all the others.”

Froman’s remarks, intended for law students, were technical. But she averred that there are “few more relevant” rights today than those protected by the Second Amendment, because it gets to the fundamentals of what constitutes individual freedom.

In contrast to the amendment’s importance — or perhaps because of it — higher courts have generally avoided all but the most narrow issues involving guns. It’s a classic example of what Froman called “the doctrine of constitutional avoidance.”

The U.S. Supreme Court has spoken “only once in a meaningful way” about the Second Amendment, she said, in a 1939 case called U.S. v. Miller, about the legality of an unregistered short-barreled shotgun. But the case does little to inform the present debate; both pro- and anti-gun groups claim it supports their side.

The present debate over the Second Amendment divides opponents into two main camps. One holds that the amendment supports an individual’s right to keep and bear firearms; another that it only describes a collective right — that is, only organized militias can have guns.

And now the time is right for the two groups to clash head-on, said Froman. For one, the confiscation of private firearms by the New Orleans police after Hurricane Katrina sharpened public awareness — and prompted a lawsuit against New Orleans that the NRA is a party to.

More importantly, a panel from the U.S. Court of Appeals from the D.C. Circuit ruled in March that a longtime ban on handguns is unconstitutional. The 58-page majority ruling, on a 2-1 vote, was an explicit argument for the individual-rights camp. “If anything in the world can violate the Second Amendment, the D.C. gun ban would do it,” said Froman.

But some other federal circuit courts have recently ruled in favor of the collective-rights camp. This high-level debate, prompted by Parker v. the District of Columbia, said Froman, could set the stage for the first Supreme Court review of the Second Amendment in 70 years.

The D.C. case is “a direct shot at compelling a discussion of the meaning of the Second Amendment,” she said. “Sooner or later, the Supreme Court is going to have to grant a Second Amendment case.”

If that happens, and the individual-rights argument prevails, said Froman, “every federal, state, and local [gun] law would be presumed to be invalid.”

Such a decision, she said, would roll through the United States, with its cultural divide on the gun issue, “like a tsunami.”

On April 5, Froman rolled through her law school alma mater in calmer fashion, noting with surprise that the coffee for students is now free.

She was a law student at Harvard when “The Paper Chase” was being filmed on campus, and got turned down for a part as an extra because “I didn’t look like a law student” by Hollywood standards. “Here it is 35 years later,” joked Froman, “and I don’t look like the president of the NRA.”

She’s the second woman to hold that office; the first was the aptly and euphoniously named Marion Hammer, who served from 1995 to 1998.

In her lecture, Froman said 72 percent of Americans presently favor the individual-rights interpretation of the Second Amendment. But if a Supreme Court ruling supports the collective-rights argument, that majority could shrink to around 20 percent as the culture conforms to a new direction for American gun ownership.

In the meantime, said Froman, “guns tend to be as hotly contested in our culture as abortion and gay rights.”