by Dave Kopel
America's 1st Freedom. Jan. 25, 2012
In the 2012 election, the Supreme Court and, therefore, the Second Amendment, hang in the balance. Victory, and the survival of Second Amendment rights, is possible only if gun owners work together to defend their rights.
That's the Spirit of 1776, and it's the lesson of 1976. The year of our national bicentennial was the year of the most important Second Amendment election in 200 years of American independence. The story of that election provides guidance for today--and highlights the dangers that lie ahead.
Enactment of a handgun ban by the District of Columbia City Council in 1975 was intended to start a national trend. So in 1976, a handgun confiscation initiative appeared on the statewide ballot in Massachusetts.
It was proposed that authorities confiscate all handguns in the state, including BB guns. Gun owners would have six months to surrender their firearms, after which they would face a mandatory year in prison for owning a handgun.
The confiscation law seemed poised to pass. The most liberal state in the nation, Massachusetts--along with the District of Columbia--was the only place that had given its electoral votes to Democratic presidential candidate George McGovern in 1972. (McGovern had run on a platform calling for a national ban on all handguns considered "unsuitable for sporting purposes.")
Most of the Massachusetts media strongly supported a handgun ban. The Boston Globe, whose reach extends throughout the relatively small state, vehemently opposed handgun ownership. So did the television stations in Boston.
Early polling suggested that a handgun ban would pass handily. Further, in the 1974 election, voters in several state legislative districts had overwhelmingly supported measures instructing their state legislators to vote for strict anti-gun legislation.
Massachusetts gun laws were already among the most severe in the nation, requiring permission from local law enforcement officials before the purchase of any firearm; allowing local law enforcement agencies to set conditions on the possession or use of that firearm (e.g., the gun must be stored unloaded and may not be used for self-defense); and demanding all guns be registered.
The leader of the "People vs. Handguns" organization was the popular Republican John Buckley, the sheriff of Middlesex County. Buckley was fresh off a 1974 win against a pro-gun challenger. Alongside Buckley was Robert diGrazia, the police commissioner of Boston who was appointed by the staunchly anti-gun Boston Mayor Kevin White.
At the insistence of Buckley and diGrazia, the Massachusetts handgun prohibition lobby did not think small. Confiscation would be total, with no exemption for licensed security guards or target shooting clubs. Even transporting a handgun through Massachusetts (e.g., while traveling from one's home in Rhode Island to a vacation spot in Maine or a target competition in New Hampshire) would be illegal, except for people with handgun carry permits (which, as of 1976, were almost never issued by most states).
Everyone understood the national importance of the Massachusetts vote. If handgun confiscation could win in Massachusetts, then it could be pushed in city after city, and state after state. The U.S. Conference of Mayors (a collection of big-city mayors) was already making plans for handgun confiscation elections in Michigan, Ohio and California. A Buckley speech to the Conference of Mayors detailed "How to Circumvent the Legislature for Gun Confiscation in 37 States by the Initiative Petition."
Eventually, it was hoped, the mass of state and local bans would provide the foundation for a national ban.
The group known today as the Brady Campaign knew how high the stakes were; after all, Robert diGrazia was a member of their board of directors. (At the time, the group called itself the "National Council to Control Handguns.")
They sent out a fundraising letter touting what they called "THE SINGLE MOST IMPORTANT EVENT IN THE HISTORY OF HANDGUN CONTROL." They promised that, "A victory in Massachusetts will be the first step toward the day when there will be … no more handguns."
The group's money paid for the confiscation lobby's commercials, which featured a one-year-old sticking a .45 in his mouth. The commercial elicited a lot of angry complaints from mothers who did not want their own small children to see such behavior on television.
Out-of-state money also flowed in from the Gund Family Foundation, established by a very wealthy Ohio family. (To this day, Gund remains a major funder of the gun prohibitionists.)
Gov. Michael Dukakis strongly endorsed the confiscation plan. He was a rising star in the Democratic Party, having ousted an incumbent Republican governor in 1974 by a 10-point margin. He would win the Democratic presidential nomination in 1988. "We must disarm society," Dukakis explained. "We must realize that violence only begets violence. Only when we ban handguns will we reduce violence."
Even the state's highest court, the Massachusetts Supreme Judicial Court, helped out. A man named Hubert Davis was caught with an unlicensed sawed-off shotgun. In the trial court, his attorney asserted that the ban on short shotguns violated his right to arms under the Massachusetts state constitution.
Davis' motion was denied by the trial court. While Davis was appealing to the intermediate court of appeals, the Supreme Judicial Court "took the matter on [its] own initiative." The Supreme Judicial Court, having reached out to take the case, did more than just uphold the ban on short shotguns; the court also ruled that there was no right to arms under the Massachusetts state constitution.
The 1780 Massachusetts Constitution had guaranteed that, "The people have a right to keep and to bear arms for the common defence." Since then, Massachusetts courts had recognized the right to arms as an individual one, subject to legitimate restrictions (such as a ban on mass armed parades without a license). Courts in other states, interpreting identical or near-identical language, came to similar results.
But on March 9, 1976, the Massachusetts Supreme Judicial Court handed down its unanimous decision in Commonwealth v. Davis: there was no individual right to arms in Massachusetts. Period. Whatever the right had meant in 1780, as of 1976 nobody in Massachusetts had any right to keep or bear a firearm. A complete ban on all guns would be constitutional. The implication for the pending vote on handgun confiscation was obvious.
The court also did an even bigger favor for the confiscation lobby. At the urging of Second Amendment supporters, the state legislature had put an alternative proposal on the ballot: If a violent criminal who had used a gun to commit a crime was sentenced to a term of imprisonment (say, "one to five years"), then the criminal would actually have to serve at least the minimum sentence.
Under the Massachusetts Constitution, if the public voted in favor of Question 5a (handgun confiscation) and 5b (prison sentences for violent gun criminals), then only that question that received the most votes would become law. Everyone knew that 5b would pass in a landslide, and so less than two months before the election, the Massachusetts Supreme Judicial Court threw 5b off the ballot, insisting that incarcerating and deterring violent gun criminals did not involve the same subject matter as handgun confiscation.
In a sense, the court was right. Advocates of gun confiscation were aiming at law-abiding citizens, not criminals. At an anti-gun rally the week before the election, Sen. Edward Kennedy explained, "We won't keep guns out of the hands of criminals." After the election, an official with the League of Women Voters (which vigorously supported the ban) said, "I think a lot of voters have that idea that this was designed to get guns away from the criminals. That's not the real purpose."
In the early 1970s, Massachusetts gun owners were numerous, but they were disorganized, disillusioned and defeatist. That began to change in 1974, when the NRA helped organize a joint sportsmen's committee, which soon became the Gun Owners Action League (GOAL). With gun owners cooperating and contributing, goal was able to hire a full-time executive director, and then a secretary. To have two people working full-time on gun rights issues made a big difference, starting in the state legislature.
Together, GOAL and NRA began a grassroots education campaign against Question 5. It started with county-level meetings throughout the state in August. Voter registration information was distributed in English and Spanish. The meetings were attended by 18,000 people, and from them came nearly 2,000 volunteers. The meetings also raised money for billboards, fliers and other advertising.
The GOAL and NRA activists made their case to other organizations, including the Farm Bureau, Grange, Veterans of Foreign Wars, American Legion, the Western Massachusetts Labor Council and many local union members, who joined them in opposing Question 5.
By far the most important, in the eyes of swing voters, were the police. Every major police organization in the state opposed handgun confiscation--including the Chiefs of Police Association, the State Police Association, the Boston Police Patrolmen's Association and the Sheriffs Association.
The police pointed out the ban was not enforceable, that it took the focus off the criminals and that it was unfair to deprive good citizens of defensive handguns. The police also objected that the law would disarm off-duty police: Massachusetts law required off-duty police have a pistol carry permit, and if Question 5 passed, pistol carry permits would no longer exist.
The confiscation lobby may not have intended to disarm the police, but their bill had been drafted by someone who admitted that he did not understand guns. Apparently the drafter did not understand gun laws very well, either.
Perhaps surprised by the police opposition, diGrazia ordered the Planning and Research Department of the Boston Police Department to conduct the first national survey of police attitudes toward guns. The survey of leading police officials found that 82.8 percent did not believe that only the police should be allowed to have handguns. The survey was kept under wraps until 1977, by which time diGrazia had left Boston. (He took over in Montgomery County, Md., and was later removed after rank-and-file police voted "no confidence" in him.)
Another major public concern was the hundreds of millions of taxpayer dollars that would be needed to compensate gun owners for the seizure of at least 800,000 handguns. Even Dukakis admitted that there was no money in the state budget to do so.
Buckley retorted that the proposal said that the compensation price would be "determined by the Commissioner of Public Safety." So, continued Buckley, gun owners should receive "not one cent." Nor would they receive anything for their now-worthless ammunition, holsters, reloading tools and so on.
Yet advocates continued to describe the handgun confiscation plan as a "buyback"--even though the government had never owned the guns in the first place, and even though taking someone's property against his or her will and without paying for it is usually called "stealing" rather than "buying."
Buckley's rationale for paying nothing was simple: "We've got a right to get poison out of society." He denounced the Springfield, Mass., handgun manufacturer Smith & Wesson as "merchants of death."
The week before the election, the dirty tricks began. Common Cause, a leading proponent of Question 5, and (supposedly) an election ethics watchdog, held a press conference to accuse GOAL of money laundering. The charge was based on nothing more than the fact that GOAL's street address had been omitted from some campaign finance reports.
On Election Day, Nov. 2, 1976, pro-gun volunteers distributed over 2 million handouts outside the polls.
The final poll, a few days before, had showed Question 5 with a 10-point lead. Everyone anticipated a long night waiting for the election results. Everyone was wrong.
Handgun confiscation was crushed by a vote of 69 percent to 31 percent. Of the approximately 500 towns in Massachusetts, only about a dozen (including Cambridge, Brookline, Newton and Amherst) voted for the ban. Even Boston rejected the ban by a wide margin.
People vs. Handguns said that it was "shocked." The group had been counting on what Buckley called "women power" to defeat the "false machismo" of men. Frightening women about handguns in the home (such as by showing a baby with a gun in his mouth) was part of Buckley's strategy to move the focus away from "street crime." But in the final week, Massachusetts women swung decisively against the ban. Apparently they did not think that "women power" meant disarming women and the police.
The gun prohibitionists bitterly complained that they were outspent by the gun rights advocates. This is true, if one looks solely at direct election expenditures. However, the gun prohibitionists received millions of dollars in free publicity from The Boston Globe, The Berkshire Eagle, television stations and much of the rest of the media. The constitutional rights advocates spent much more money on advertising because they had to in order for the public to hear their point of view. Without the paid advertising purchased by gun rights advocates, the free media in support of the prohibitionists would have overwhelmed the debate and won the day. Without the three-month campaign by volunteers handing out fliers in shopping malls, union halls and polling places, many voters would never have learned about the dangers of confiscation.
The 1976 victory in Massachusetts teaches some important lessons for today. First, the continuing support of Second Amendment issues by rank-and-file law enforcement officers is extremely important in garnering public support for the rights of law-abiding citizens. This is why the anti-gun groups are relentless in their efforts to attempt to drive a wedge between Second Amendment supporters and the police, with phony claims that Second Amendment rights endanger the police.
Second, the preservation of Second Amendment rights nationally depends upon a national organization that has resources to fight locally. Perhaps you live in a state such as Montana, where there is zero possibility that any state or local government would ever confiscate guns. But that doesn't mean that what happens in Massachusetts (or New York, California, etc.) is irrelevant to you. The tactics of the national gun-ban groups are to use state and local bans as the starting point for national bans.
By 1994, only four states and a handful of cities had passed bans on so-called "assault weapons." Two of the states (California and New Jersey) had far-reaching bans, while in Maryland and Hawaii, the ban was only for "assault" handguns. Yet this four-state foundation was enough for the gun prohibition lobbies to be able to push a national ban into law in 1994.
Counting on the U.S. Supreme Court for protection would be extremely foolish. With one more Obama appointment, there will be a Supreme Court majority to overturn the Heller and McDonald decisions, or to interpret them so narrowly as to make them useless.
As a result of the election, the National Council to Control Handguns (now known as the Brady Campaign) shifted its tactics, to move toward confiscation more gradually. Its leader, Pete Shields, explained, "People can be led, but only a little way at a time."
Today, the enemies of the Second Amendment are considerably stronger in some respects than they were in 1976. It is true that what little grassroots support they had then has now almost entirely disappeared. But instead, they have the enormously deep pockets of billionaire gun banners such as Michael Bloomberg and George Soros. With the plutocrats' wealth, plus the free publicity that the mainstream media continue to give to the gun ban advocates, the prohibitionists have a much larger advantage than they did in 1976. On Capitol Hill and in the state legislatures, Bloomberg's army of professional lobbyists is enormous.
In 1775 and 1776, the brave citizens of Massachusetts, aided by patriots in other states, defeated the attempts by King George III to confiscate their firearms. In 1976, the citizens of Massachusetts once more defeated gun confiscation, again with the help of patriots from all over America.
The gun banners are not stopping, and neither must we. Even where the gun banners are strongest, they can be defeated--if Americans who revere the Constitution remain vigilant and active in support of the NRA and its state and local allies.
