By Martin Schram
Tribune News Service
President Richard Nixon’s carefully chosen Supreme Court Chief Justice Warren Burger was, of course, a no-nonsense, strict constructionist who could be trusted to stick to his guns.
Which is precisely what two Washington Post reporters discovered one tense night in 1971, during the run-up to the U.S. Supreme Court’s final Pentagon Papers ruling on whether the Post and The New York Times could legally publish the government’s secret Pentagon Papers history of its tragic Vietnam War mistakes. (Reader alert: This isn’t another tired Pentagon Papers tale, nor a reviewer riff on “The Post” movie, so don’t stop reading!)
The Post’s legendary editor, Ben Bradlee, was worried Nixon’s Justice Department might sneakily submit a new legal motion directly to the chief justice at his home. So he dispatched Post reporters Martin Weil and Spencer Rich (who were later my Post colleagues) to check it out. When the reporters rang Burger’s doorbell, the chief justice himself opened the door. His Hollywood-perfect snow-white hair made him ideal for the role of chief justice; he even was wearing a robe (alas, not his black Supreme Court robe, just a bathrobe). And he was brandishing one more accessory: a gun.
Weil described it all in his memo to his anxiously awaiting editors: “The gun was in his right hand, muzzle pointed down. It was a long-barreled steel weapon. The Chief Justice did not seem glad to see us. … The Chief Justice said it would be all right for us to wait for any possible Justice Department emissaries, but we could wait down the street. He held his gun in his hand throughout a two or three minute talk. … He never pointed it at us. …We went down the street and waited for about three hours. Then we went home.”
So Burger was a gun guy. And it is good for all of us to keep that in mind, especially those impressive Parkland, Florida, high school student activists who are motivating our leader-lite nation, and also their National Rifle Association critics.
Because 20 years after that night, a then-retired Burger flat-out dissected and devastated what has become the NRA’s most successful rallying cry and legal argument: that the Second Amendment must be interpreted as guaranteeing governments cannot infringe upon an individual’s right to own today’s wide assortment of devastating weapons, including military-style and assault-style rifles such as the AR-15.
A strict constructionist, Burger knew well the meaning and impact of his words on the NRA as he talked in a 1991 PBS interview about the interpretation of the Second Amendment that has become the NRA’s mantra: “This has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
The former chief justice explained that it was “a fraud” to insist that the Second Amendment was even about an individual’s right to bear arms. And he made a very academic historic case for his position in an article he wrote in Parade magazine’s Jan. 14, 1990, issue. Point by point, Burger showed the Founding Fathers were addressing the public fear of a large federal standing army and sought to guarantee states can maintain armed militias when they wrote in the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
But times have changed; Americans no longer fear a massive standing federal army and no longer have the original need for state militias to protect them from the feds.
Burger added that if, in 1991, he were tasked with the writing of a U.S. Constitution’s Bill of Rights, “There wouldn’t be any such thing as the Second Amendment.”
Last week, another retired Supreme Court justice, John Paul Stevens (Republican President Gerald Ford’s selection) called in a New York Times op-ed for repealing the Second Amendment. But frankly, repealing the Second Amendment would probably prove politically impossible. Worse yet, the effort would divert the student movement from its suddenly achievable goals.
Last weekend’s massive nationwide demonstrations generated a tsunami of momentum for common sense national gun reform. Our youngest generation of leaders can elect a new generation of can-do legislators.
Maybe, just maybe, a new generation of caring pols may finally reinterpret and modernize the archaic Second Amendment so it can finally protect us all — by banning weapons made for military devastation, while assuring people will get the guns they need for sporting, hunting and self-protection.
Martin Schram, an op-ed columnist for Tribune News Service, is a veteran Washington journalist, author and TV documentary executive. Readers may send him email at martin.schram@gmail.com.
