Nazism, the Second Amendment, and the Nra: A Reply to Professor Harcourt

By Halbrook, Stephen P. | Texas Review of Law & Politics, Fall 2006 | Go to article overview

Nazism, the Second Amendment, and the Nra: A Reply to Professor Harcourt


Halbrook, Stephen P., Texas Review of Law & Politics


I. INTRODUCTION

The Second Amendment "right of the people to keep and bear Arms,"1 controversial enough as a domestic constitutional issue, becomes an extraordinarily provocative enigma when viewed in light of historical experiences of foreign governments. This is particularly the case when the state analyzed is Nazi Germany, which invariably (and justifiably) gives rise to negative comparisons.

A revisionist view now has been boldly asserted that Hitler was friendly to perhaps the most dangerous freedom in the Bill of Rights. The Fordham Law Review recently published a provocative Second Amendment Symposium issue which included three articles suggesting that Nazi Germany had liberal policies toward firearm owners and that the National Rifle Association (NRA) promotes a myth of Nazi repression of firearms owners as part of a cultural war.2 This author is taken to task as a leading perpetrator of this alleged myth.9

In response, I wish to suggest why the study of Nazi firearms policies is a legitimate and timely topic of scholarly analysis in the studies of totalitarian legal systems and of the Holocaust. Presumably a justification for the study of tyranny in history is to help ensure that such events never take place again, whether in toto or in less oppressive but still not negligible contexts.

II. "THE PEOPLE" OF THE SECOND AMENDMENT

Professor Bernard E. Harcourt took the lead with his article On Gun Registration, the NRA, Adolf Hitler, and Nazi Gun Laws: Exploding the Gun Culture Wars (A Call to Historians).4 While we differ on how to characterize the Nazi regime's policies,5 at the outset it should be stated that Professor Harcourt has contributed to an understanding of the subject merely by his willingness to address it. He has issued a welcome call to historians to face a topic in Holocaust studies that has been assiduously avoided or neglected.

Professor Harcourt began by pointing to and disputing this author's statements'1 that totalitarian regimes disarm their subjects so as to prevent resistance,7 that German firearms laws played a prominent role in disarming Jews,8 and that Germany had no equivalent to the second Amendment to the U.S. Constitution.9 The second Amendment provides: "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."10

Recognition of a right such as this anywhere in the world in any historical epoch must acknowledge that "the people" must mean the peaceable populace at large without regard to race, religion, or creed. However, Professor Harcourt embraces American neo-Nazi William L. Pierce, who asserts, "German firearms legislation under Hitler, far from banning private ownership, actually facilitated the keeping and bearing of arms by German citizens . . . ."" Harcourt asks, "How is it, you may ask, that I... would end up agreeing with a white supremacist leader of the National Alliance and National Vanguard?"12 Harcourt further concluded that "the Nazis were relatively more pro-gun than the predecessor Weimar Republic . ...""

If the Second Amendment's "right of the people to keep and bear Arms"14 is the postulate, the above reference to the "German citizen," or more accurately under the Third Reich, the incredibly shrinking "German citizen," has little bearing on the meaning of "the people" at large. As argued in this author's article that prompted Professor Harcourt's reply, immediately upon coming to power in 1933, the Nazis disarmed and arrested their political opponents, invariably labeling them "Communists."15 By the time of Reichskristallnacht (Night of Broken Glass) in November 1938, the Nazis had all but completed the disarming of the German Jews, preparing the way for the Holocaust.16

Professor Harcourt initially makes the latter point without pulling any punches. He succinctly and correctly states: "The toughest question in all of this is how to characterize the Nazi treatment of the Jewish population for the purpose of evaluating Adolf Hitler's position on gun control. …

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