Review of “The Second Amendment: A Biography” by Michael Waldman

Michael Waldman is a professor of law at New York University. The Second Amendment: A Biography is an erudite and informative analysis of the history of the interpretation of that amendment by the Founding Fathers, the Supreme Court, and various legal scholars. Waldman states:

For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias….then in 2008, the U.S. Supreme Court upended two centuries of precedent. In…District of Columbia v. Heller [it] declared the Constitution confers a right to own a gun for self-defense in the home.”

On a literal level, this book is the story of how that change came about. On a “meta” level, it is a description of the process by which the constitution is interpreted, and how interpretations evolve over time. On a societal level, the content of this book is extremely important because of its ramifications on the power of the government, on any tier, to deal with the current spate of gun violence.

The Second Amendment has a curious grammatical construction:

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.”

How does the reference to “the militia” in the introductory phrase affect the interpretation of the amendment as a whole? Waldman’s historical analysis makes clear that the debates that preceded the adoption of the amendment were concerned with the role of the militia (what we would now call the National Guard), and had virtually nothing to say about an individual’s right “to keep and bear arms.” Moreover, the amendment says that the right to bear arms is that of the people (presumably acting in the context of the militia), not individuals. Ironically, it must be noted that the militias were composed of white males who were expected to supply their own weapons to participate in military training. Those men were not merely allowed to keep rifles; they were required to do so.

In the late 18th century, most Americans feared the establishment of a standing army—that was what autocrats used to impinge on the liberty of their subjects. Local militias were generally thought to be adequate to protect the populace from insurrection or from marauding Native Americans. Remember that the Bill of Rights was adopted to curb the power of the federal government; it did not address the powers of the states. Views may have changed somewhat when in Shay’s Rebellion it was the local militia that had to be put down by the national army, led by George Washington.

Prior to the Civil War, most courts (with the exception of Kentucky’s) interpreted the scope of the amendment to be limited to the militia. A key was the phrase “bear arms” was understood to have a military meaning.

In the immediate aftermath of the Civil War, the Fourteenth Amendment was enacted, giving all persons the right to “equal protection” under the law. But that hardly mattered in the South. In 1872, the Louisiana gubernatorial race pitted a black candidate against a racist white Democrat. The results were contested, and members of both races formed rival militias. On Easter Sunday, the paramilitary White League captured and later massacred about 100 blacks. As was typical of the time, white state prosecutors saw no reason to bring criminal charges like murder against white defendants for killing blacks. But federal prosecutors charged numerous white defendants with violating the civil rights of the blacks, including the right to bear arms. Only three were convicted, and they appealed, ultimately reaching the U.S. Supreme Court in 1876. In U.S. v. Cruikshank, the Justices held that the Second Amendment (like the rest of the bill of Rights) applied only to Congress, and so no murdered blacks’ civil rights had been violated. The majority opinion neglected to mention that the case involved a massacre.

As a constitutional matter, the Cruikshank case ruled that the Second Amendment did not apply to the states. As a result, many states and local municipalities enacted gun control laws, some quite restrictive. In two cases 19th century cases, Presser v. Illinois and Miller v. Texas, the U.S. Supreme Court ruled that the Second Amendment did not have an individual right to carry weapons, although it did say that the states could not ban guns to the extent that it would interfere with the federal government’s military needs.

With the coming of the Prohibition Era, gun violence increased dramatically as rival gangs had to enforce their “contracts” without the aid of the courts. This led to the passage of the first federal gun legislation, the National Firearms Act of 1934, which heavily taxed machine guns and sawed-off shot guns and prohibited their transportation over state lines. The Supreme Court upheld the legislation in United States v. Miller. It noted that there was no evidence that a sawed-off shot gun “has some reasonable relationship to the preservation or efficiency of a well regulated militia [and so] we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

Gun regulation increased after the assassinations of John F. Kennedy, Martin Luther King, and Robert Kennedy. Congress passed the Gun Control Act of 1968, which required licensing of gun dealers and banned the importation of military style weapons. Chief Justice Warren Burger, no flaming liberal, characterized the argument that the amendment created an individual’s right to own a gun as follows:

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. Now just look at those words. There are only three lines to that amendment. A well regulated militia—if the militia, which was going to be the state army, was going to be well regulated, why shouldn’t 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It’s got to be registered, that you can’t just deal with at will.”

In Waldman’s words, “There was no more settled view in constitutional law than that the Second Amendment did not protect an individual right to own a gun.”

But then came the conservative revolution. The National Rifle Association organized single issue voters to oppose candidates who favored gun regulation. It took on an “apocalyptic, insurrectionist tone.” Wayne LaPierre and Charlton Heston riled up the rank and file. In 1959 60% of Americans favored banning handguns; that dropped to 41% by 1975, and all the way to 24% in 2012.

But more insidiously, a group of conservative law professors and lawyers began to write articles arguing that an originalist approach to constitutional interpretation established an individual right—this despite the fact that (as Waldman shows) history and nearly all historians were against them. They added gravitas to their arguments by citing each other, having little or no legal precedent to rely on. More importantly, the political composition of the Supreme Court became more conservative with the appointments of Scalia, Thomas, Roberts, and Alito.

Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

The process culminated in 2008 with the Heller decision, authored by Scalia. Waldman gives a blistering criticism of that opinion. He then shows that Richard Posner, perhaps the most respected jurist (both a judge on the Seventh Circuit Court of Appeals and a University of Chicago law professor) in America gave an even more scathing analysis of the Heller opinion in Chicago v. McDonald , a case in which Posner felt bound by Heller. Waldman calls Posner’s opinion “a masterpiece of passive aggression.”

In some way, Heller may actually help gun control advocates. It has taken away the NRA’s argument that the government is trying to take away their guns. Heller says it can’t do that. What it may be able to do is reasonable, limited regulation. And courts seem willing to uphold such regulation. However, Waldman muses that “it is clear that the gun issue is not one of evidence-based public safety policy, but of culture.” He opines that “as a legal matter, Heller may create space for reasonable gun regulation. As a matter of politics and culture, though, it can only deepen polarization.”

Waldman’s concluding chapter contains some very interesting observations, the most striking of which I quote below:

A full scan of American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers….[T]he reason the Court has pronounced that limited right [individual gun ownership] is not because the Framers of the Second Amendment intended it to confer it. (They didn’t.) Nor is it because of a dictionary from 1730, or a state court judicial interpretation from 1830, or even a Supreme Court case from 1939. Rather, it is because the people today believe there is such a right. The country has evolved—the Constitution is living, as it were—and the widespread acceptance of some form of gun ownership is part of the way Americans think. Not then, now. Heller can be justified not as originalism, but as something more rooted in common sense: it reflected a popular consensus won by focused activists.”

Evaluation: This book brings a lot of light to some issues about which one often finds only heat. It should be read by all citizens concerned with gun violence and gun rights.

Note: For a satiric could-have-almost-happened take on the issue, see this humorous imagined conversation between James Madison and Thomas Jefferson from The New Yorker.

Rating: 4/5 stars

Published by Simon & Schuster, 2014