The Second Amendment: A Biography - Hardcover

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Michael Waldman is president of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on improving the systems of democracy and justice. He was director of speechwriting for President Bill Clinton from 1995 to 1999 and is the author of The Fight to Vote, My Fellow Americans, POTUS Speaks, and three other books. Waldman is a graduate of Columbia College and NYU School of Law. He comments widely in the media on law and policy.

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The Second Amendment

INTRODUCTION

On March 1, 1792, Secretary of State Thomas Jefferson issued a terse announcement. Congress had established the post office. It had passed a new law governing fisheries. And the states had ratified the first ten amendments to the Constitution: the Bill of Rights.

Jefferson’s deadpan proclamation belied years of drama and conflict. The amendments were the product of a fierce debate over government’s role and the rights of the people, one that unfolded since the start of the American Revolution. Even today, Americans know some parts of the Bill of Rights by heart. We cherish the First Amendment, with its guarantee of freedom of religion, speech, and the press. We debate the Fourth Amendment, with its requirement for a search warrant. All know about the right to avoid self-incrimination (“taking the Fifth”).

For two centuries, however, the Second Amendment received little notice. Few citizens understood its provisions. Scholars paid it little attention. Lawyers rarely raised it in court. In recent years, of course, the Second Amendment has been thrust to the center of controversy. Politicians declare themselves its “strong supporters.” News reports speculate about gun laws and whether they will pass muster. It has become a synonym, in powerful unspoken ways, for America’s gun culture.

The Second Amendment is one sentence. It reads in its entirety:

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.

Its foggy wording and odd locution stand out in the Constitution. Lawyers and scholars debate its commas and clauses. For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard. Then, in 2008, the U.S. Supreme Court upended two centuries of precedent. In the case of District of Columbia v. Heller, an opinion written by Justice Antonin Scalia declared that the Constitution confers a right to own a gun for self-defense in the home. That’s right: the Supreme Court found there to be an individual right to gun ownership just a few years ago. Now, when we debate gun control we do so in the context of a Supreme Court ruling that limits what we can do (though we don’t yet know how much).

Far from a dry set of words scratched on parchment, then, it turns out that the story of the Second Amendment can tell us much about how our country has changed and grown, how we see ourselves and our government, how we balance the rights of individuals and the need for safety.

Part One of this book begins in the tumultuous years of the American Revolution and its aftermath. The Constitution was drafted in secret by a group of mostly young men, many of whom had served together in the Continental Army, and who feared the consequences of a weak central authority. They produced a charter that shifted power to a national government. “Anti-Federalists” opposed the Constitution. They worried, among other things, that the new government would try to disarm the thirteen state militias. Critically, those militias were a product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age sixteen to sixty was enrolled. He was required to own—and bring—a musket or other military weapon.

Debate still burns about the Framers’ intent and the original meaning of the Constitution. Surprisingly, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention. Nor with scattered exceptions in the records of the ratification debates in the states. Nor on the floor of the U.S. House of Representatives as it marked up the Second Amendment. James Madison’s original proposal, in fact, included a provision for conscientious objectors.

People ask: who is right? Did the Second Amendment protect militias, or an individual right to a gun? The answer: both, and neither. It protected the individual right to a gun . . . to fulfill the duty to serve in a militia. To the Framers, even our question would make little sense. To us, today, their answer makes little sense.

As the nation spread west, guns grew abundant. (After all, one of those young Constitution writers, Alexander Hamilton, was killed in a duel!) In the years immediately following the Civil War, the authors of the Fourteenth Amendment wanted to make sure that former slaves could arm themselves to protect against organized violence from white vigilantes. But gun control laws were prevalent, too. An iconic photo of Dodge City—that legendary frontier town—shows a sign planted in the middle of its main street: “The Carrying of Fire Arms Strictly Prohibited.” In the twentieth century, Americans demanded a stronger government as they surged into crowded cities. Amid Prohibition and the Depression, modern gun control laws sought to rein in gangsters and the heat they packed. And, again, the courts stayed out. Chief Justice Warren Burger—a rock-ribbed conservative appointed by Richard Nixon—articulated the consensus when he called the idea of individual gun rights in the Constitution a preposterous “fraud.”

Part Two tells the story of how that changed: how a remarkable, concerted legal campaign toppled two centuries of precedent.

One thread, of course, is the rise of the National Rifle Association. The group brags of its ballot box victories. Starting in the 1970s, the organization also quietly—but emphatically—backed a jurisprudential campaign to enshrine gun rights in the Constitution. Its legal allies insisted that for two centuries judges simply got it wrong. They managed to persuade a substantial part of the public, and after that the courts. The road to Heller was paved by one of history’s most effective, if misleading, campaigns for constitutional change.

Heller shows something more: how a generation of conservative judges and scholars transformed the way we interpret the Constitution. “Originalism” asserts that the only legitimate way to interpret a constitutional provision is to ask what the Constitution meant at the time it was enacted, in the late 1700s. Its influence has peaked in the Supreme Court led by John Roberts. He assigned Scalia the 2008 gun case. Lawyers arguing before the Supreme Court now brandish obscure historical texts like graduate students defending a particularly opaque dissertation. This section will suggest that reverence for the “text” can be just a pretext for a particular political view.

What now? Part Three will trace Heller’s impact as we struggle again to curb gun violence. As before, spasms of violence spur calls for new laws. (Today, we are sickened by massacres such as the one in Newtown, Connecticut, rather than the political assassinations that prompted action before.) This is the first time, though, that Americans have debated firearm safety proposals with an individual right to own a gun enshrined in the Constitution. Will new doctrine deflect new laws? Will we all have the right to carry a weapon and stand our ground? We will examine the cases since Heller, and find a surprise: despite the hoopla surrounding the case, courts upheld nearly all gun rules. Individuals have a right to a gun, judges have found, but society has a right to protect itself, too. Yet that assumption may be premature. As Justice Robert Jackson said, the Supreme Court is not final because it is infallible, but infallible because it is final. Inevitably the Court will speak again. But the High Court’s imprimatur has given new strength to...