by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University
It is hardly surprising to find amicus briefs by both gun rights groups and gun violence prevention groups in a major gun related case such as Wrenn v. District of Columbia. The issue in Wrenn, the scope of the right to travel armed in public, is one of the hottest being litigated since the Supreme Court decided District of Columbia v. Heller, its controversial five-to-four gun rights decision. If the broad amicus interest in the case is to be expected, there is at least one surprising—and sneaky—aspect of the strategy pursued by one of the amici: the National Rifle Association. In Wrenn, the NRA has essentially taken an end-run around the word limits on amicus briefs by submitting two briefs—one under its own name and another by a group of gun rights advocates with close ties to the NRA, which the NRA represents as a scholarly brief by historians. Even more troubling is the attempt by one of the latter brief’s signers, David Kopel, a long time gun rights and libertarian activist to trumpet their brief on The Volokh Conspiracy, a widely read libertarian law blog that is now hosted by The Washington Post.
The NRA “historians'” brief was submitted on behalf of a gun-rights foundation in California and five individuals, only two of whom have PhD’s in history or a related discipline. One of those, Joyce Lee Malcolm, holds an NRA-funded chair at George Mason law school. It is the only chair I can think of which seems to carry an ideological litmus test for its holder. The other full time scholar on the brief, Robert Cottrol, is one of the trustees of the NRA’s Civil Rights Defense Fund.
The mere fact that one takes funding from a source with a particular ideological or policy agenda does not, of course, necessarily discredit the actual research produced with those funds. That must ultimately be judged on its own merits. (Full disclosure: About a decade ago I received a grant from a foundation interested in gun control, although my research challenged the prevailing collective rights theory of the Second Amendment then supported by the foundation.) And none of this would matter in the end if the facts presented in the NRA historians' brief were accurate and the arguments it made historically plausible. Unfortunately, neither of these turns out to be the case.