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Against All Odds

Against All Odds

by Dave Kopel

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.

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