The Security of a Free State

The NRA is being forced to take more seriously Wayne La Pierre’s words that “the NRA will always fight for the rights and liberty of ‘We the People.’ You can count on it.” As a special interest group the NRA focuses on the Second Amendment, but it’s being constrained to take a broader look at the meaning of “the security of a free state” following criticism by its members.

The NRA was forced to respond in its publications to criticism from its members, including a member of its board, for dropping its active opposition to the bill, “Democracy is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE).” The bill, passed by the House, and sitting in the Senate, was previously opposed by the NRA because it would have limited the NRA’s ability to engage in public debate before an election. It dropped its opposition following the addition of a provision to exempt certain 501(c)(4) groups. In its final House form the exemption was for groups with over 500,000 members, and with members in every state and in Puerto Rico, etc. (See H.R. 5175, section 301(27)).

The exemption applies to the NRA and effectively bought the end of the NRA’s opposition.

The members’ criticism included opposition included a member of it board of directors, Cleta Mitchell. Cleta Mitchell concluded that the bill, “is a scheme hatched by political insiders to eradicate disfavored speech.” And said, “There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.”

The NRA’s explanation of dropping its opposition is that the legislation is about free speech and it no longer affects the NRA’s ability to defend the Second Amendment in elections. Chris Cox, the NRA’s executive director for its Institute for Legislative Action, says that “without the NRA, the Second Amendment will be lost” and the NRA doesn’t want to “put the Second Amendment at risk to fight a First Amendment battle.” Chris Cox’s “sworn duty” is to preserve the Second Amendment, “above all else.” The NRA has been at pains to explain this to its members. (The quoted explanation is available online here.)

I’m sympathetic to the NRA’s position. I’m a member and like the work of the NRA, such as defending hapless air travelers who get diverted into anti-gun states while traveling with firearms. And maybe the NRA’s problem is only one of rhetoric, or perhaps a problem of how to explain the use of the NRA’s resources, or you might say a question of tactics, a prudential question, rather than a question of principle, but like many other members, I have questions, doubts, and I think I see a problem.

First, it seems that Chris Cox needs to be more precise. Maybe with more precision initially, the NRA wouldn’t have to spend so much time and ink clarifying its position on this issue. And it’s far from clear that the NRA’s existence determines the Second Amendment’s. There’s a small historical problem here. The Second Amendment came first. And even now, the NRA is not indispensable. Yes, the NRA is the biggest and most experienced, but other organizations can defend the Second Amendment. The Second Amendment Foundation, for example, won the argument in McDonald v. Chicago. The NRA’s pretense of that being their success, to the contrary notwithstanding.

The NRA seems not to understand what is necessary. The NRA is good at arguing that the founders needed arms to fight the British. But one might quip that criminals need guns too for their purposes. The criminals’ need for guns is no less obvious than for the founders, but that need says little about what’s necessary for preserving freedom and the Second Amendment, because, obviously, guns don’t make men free no more than tyrants are good because they command armies.

It’s hardly an excuse for the NRA to say, as Chris Cox does, that it’s not a first amendment or some other organization. The NRA leadership may have a duty to its members not to waste its dues and donations on private benefits or arbitrary expenditures, but that’s not sufficient. Why drop opposition because of a loophole, which of course, may be taken as easily as given? Enjoying a loophole for a time is not the enjoyment of rights.

Proclaiming a victory for the Second Amendment for another loophole, as the NRA has done recently, because Obamacare can’t charge gunowners a higher insurance premium is hollow. We should not be blind to a “long train of abuses [that]. . . evinces a design” to erode freedom.

Sadly, the Chris Cox’s actions suggests that it not only may, but as a special interest must, be blind to the rights of others. It seems to justify its actions by saying that it is a special interest group. Chris Cox’s actions make it appear that the NRA is the caricature its opponents have described: a narrow special-interest group using a loophole to take aim at the public good. It’s not being a good Samaritan who knows how to be a good neighbor.

Chris Cox might be excused for his special interest attitude because we’ve all long been taught by the leftist-dominated universities about pluralism—that there’s nothing wrong with special interest groups; it’s all just part of the game of politics, a fact of life. (See David Truman’s 1951 work, Governmental Process.)
But Truman deceives when he says his teaching is based on the founding and James Madison’s constitutionalism. (The origin is Marx; see Arthur Bentley’s Process of Government written in 1908.) Truman omits Madison’s point that special interests, factions, are “adverse to the rights of other citizens. . . .” and their effects must be controlled.

Maybe we shouldn’t excuse the NRA, however, for overlooking the Second Amendment itself. I like the NRA’s articles on the Second Amendment and on the history of the founding; they’re quite good, like “The Arms of April 19, 1775.” That article from the American Rifleman, July 2010, quotes the Minuteman Levi Preston, “we always had been free and we meant to be free always! They didn’t mean that we should.” The NRA knows history well enough to know that Preston wasn’t talking about a loophole.

I think Preston’s point about being free relates to the Second Amendment more than Chris Cox seems to appreciate, despite it being an important point in the Second Amendment victory of Heller is based on understanding the preface. From the beginning, James Madison’s amendment included a little preface that states the purpose of the amendment: the security of a free state.

That preface played a major role in the Supreme Court’s Heller decision supporting the right of individuals to keep a gun at home for self-defense. The individual right “to keep and bear arms” fits with a larger purpose of freedom. Cited in the opinion was the work of Prof. Volokh, who notes that “free state” is a synonym for “free country,” referring to the nation and not the states of the Union. A “free state” stands in contrast to arbitrary or tyrannical government. And this understanding supports the individual rights interpretation of the Second Amendment, and opposes the argument, long stated by supporters of gun control, that the Second Amendment only guarantees the “states” a “militia” like the National Guard.

As Prof. Volokh notes, Blackstone’s “free state” is not arbitrary, but he does not, however, note that a “free state,” not being arbitrary, is under “the Law of Nature and of Nature’s God.” This is important, because the Second Amendment isn’t just a part of some collection of “freedoms” that make up a grabbag.

A free state isn’t just a collection of persons with each one enjoying and defending only his favorite loophole or “freedom.” A free state isn’t a just collection of people with guns. A free state is a people constituted according the “Laws of Nature and of Nature’s God”; and a free people, a good people, know their rights and duties. They know it’s necessary to judge bills according to the “Laws of Nature and of Nature’s God” and declare their judgment.

Without a free state, we don’t have freedom of religion, of speech, to keep and bear arms etc. And contrary to Chris Cox’s notion of defending the Second Amendment, “above all else,” the Constitution was written without the Bill of Rights but the Bill of Rights can’t exist without the rest of the Constitution. And most importantly, the Constitution can’t survive the loophole mentality of special interest groups, as James Madison warned. So it is that the NRA, like so many politicians, seems in need of a reminder that factions are the bane of free governments—and this despite the NRA’s campaign slogan, Vote Freedom First.

A cynic might paraphrase Ben Franklin: those who would give up the free speech rights of others for loopholes, deserve neither free speech rights nor the loophole to keep and bear arms. But free people will continue to plan, organize and fight for their rights, using the SAF if not the NRA, or the Tea Party, or whatever organization serves the purpose.