The Second Amendment A biography

Review by New York Times Review

"THE RIGHT OF THE PEOPLE to keep and bear arms" has been enshrined in the Second Amendment to the Constitution since 1792. In our day, the National Rifle Association and batteries of conservative jurists have fought so successfully to persuade people that the amendment guarantees Americans an individual right of self-defense that in 2008 the Supreme Court declared unconstitutional an outright ban on handguns for residents of the District of Columbia. Two years later, the court ruled that Chicago could not ban handguns, either - the right to own handguns applied all over the United States. Well, as Michael Waldman tells us in "The Second Amendment: A Biography," the idea that the amendment was all about self-defense would have been news to the first Congress, which enacted it. "Mr. Madison has introduced his long expected Amendments," Representative Fisher Ames of Massachusetts, a defender of the new Constitution, rose to say after James Madison reluctantly agreed to come forward with ideas for improvements - 20 of them, from promising that troops could not be quartered in people's homes to freedom of the press to trial by jury. Then Ames sarcastically added: "O. I had forgot, the right of the people to bear Arms. . . . Risum teneatis, amici" ("Stifle your laughter, friends"). But, Waldman observes, there was little debate about the right to keep and bear arms, for self-defense or anything else, because that went without saying at the time, at least for all adult white males. Since earliest colonial days, in most places, they had been required to have arms and be ready and able to answer the call to service in local militias, in case of attack; individuals had always had the right to firearms under common law, and without it Americans would not have won the War of Independence. The arms amendment and others had been proposed as a way of allaying opposition to the Constitution. Doubters feared that a strong federal government could veer off into tyranny if it had a standing army at its disposal. The militias of the 13 states would be a deterrent to that, and the states would be assured of a steady supply of militiamen because the citizenry was armed. The text of the Second Amendment in its entirety, as finally approved, implies this: "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." That prefatory "well-regulated militia" phrase was considered self-explanatory by most state and federal courts for two centuries. Militias and militia duty withered away in the decades before the Civil War. The right to arms lived on, but the courts did not see in the Second Amendment any bar to state or local gun control regulations. Waldman's readable, often chatty, thoroughly documented recounting of the Second Amendment's history shows it changing in character as American society changed. As handguns became more available starting in the early 19 th century, more people saw them as a means of self-defense or self-empowerment. Violence and abuse of the right to arms led to increased regulation, and eventually regulations led to backlash. After the multiple assassinations and turbulence of the 1960s, even the N.R.A. supported federal laws regulating the sale of guns. But rising violent crime led to a gun-rights revolt, and the N.R.A. under a changed leadership came to oppose tighter gun control. Batteries of lawyers and scholars produced articles arguing that the Second Amendment had indeed conferred an individual right to arms for self-defense. "It is hard to convey fully the circular nature of these writings," Waldman sighs. They were, in his view, "one of history's most effective, if misleading, campaigns for constitutional change." But they helped convince legislators and political leaders who ultimately created the conservative Supreme Court majority that handed down the 2008 ruling. Waldman insists the court was wrong, that the Second Amendment did not create an individual right to arms; but in my view he does not adequately consider that it did recognize one, the pre-existing individual right in common law. The Second Amendment itself does not figure much in "This Nonviolent Stuff'll Get You Killed," Charles E. Cobb Jr.'s richly detailed memoir of his experiences with the Student Nonviolent Coordinating Committee during the civil rights struggles of the 1960s, but gun rights certainly do. Virginia had laws in colonial days forbidding blacks, slave or free, to carry weapons of any kind - one of the first gun control laws, as Cobb, himself a descendant of slaves, puts it. Almost 200,000 Southern black Americans served with the Union armies during the Civil War, and many took their guns back home with them when it was over. After the failure of Reconstruction, the Ku Klux Klan and other white racists had plenty of guns, and many Southern rural blacks relied on firearms for self-defense. More black people became familiar with guns in the 20th century after serving in the two world wars. By the 1960s, Cobb says, many, perhaps most, Southern rural blacks took for granted the right to use guns to defend themselves. "This nonviolent stuff ain't no good. It'll get ya killed," Hartman Turnbow, a black Mississippi farmer who always traveled armed, prophetically warned Martin Luther King Jr. in 1964. King apparently never got a gun, but there were guns in his house nonetheless. And James Farmer and the Congress of Racial Equality stood by nonviolence, but did not refuse armed protection by groups like the Deacons for Defense and Justice. Today, with 270 million legal guns in private hands all over America - and who knows how many illegal guns in the hands of gangs and criminals - gun rights have become more associated with "the conservative white right," Cobb acknowledges. He also says that "violence on a scale much larger than Ku Klux Klan terrorism is the greatest problem facing many black American communities today." Yet he does not endorse gun-control laws that might help reduce inner-city violence. Such measures, Cobb seems to suggest, are not a sufficient solution; the primary perpetrators and primary victims, young black people, would benefit more from social and educational programs to encourage nonviolent ways of addressing grievances and frustrations. With 30,000 Americans a year dying from gunfire (about two-thirds of them suicides), the N.R.A. insists that more guns in the hands of law-abiding people, white and black, not gun control, are the answer. Waldman deplores the way rational debate about guns is too often drowned out by constitutional fundamentalism. Even after Adam Lanza murdered 20 children and six adults in a school in Newtown, Conn., at the end of 2012, the Senate could not muster 60 votes to defeat a filibuster against bills to ban sales of assault rifles and require universal background checks for gun purchases. You can't trust the government to stop at background checks, the N.R.A. keeps insisting; what government really wants to do is seize everybody's guns. Despite any real evidence for this assertion, too many Americans believe it. Waldman hopes "common-sense gun regulation" will someday make a comeback. But it is unlikely to succeed, he believes, unless advocates for new measures spend as much time and effort trying to bring over legislators and judges to their view as the N.R.A. and others did with such success for theirs. CRAIG R. WHITNEY'S books include "Living With Guns: A Liberal's Case for the Second Amendment."

Copyright (c) The New York Times Company [June 15, 2014]

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Review by Booklist Review

Given the murkiness of the language of the Second Amendment and worries about armed citizens from the era of the Revolutionary War to the Civil War, from the settling of the western frontier to the gangsterism of the Prohibition era, the U.S. Supreme Court has generally ruled against the constitutional right to own a gun. In 2008 that all changed. Legal scholar Waldman examines the political forces behind that change, including the growing influence of the National Rifle Association and how gun rights play into the culture wars. Waldman offers historical perspective on the fierce debate to decide how much militia the nation should support and then goes on to trace the violent history of gun use in the U.S. and the increasingly contentious debate about crime and safety, all against the backdrop of debates about originalism as applied to the Constitution. This is a lively and engaging exploration of the radically different perspectives of the Founding Fathers, worried about the nation's ability to protect itself yet fearful of a powerful military, and contemporary politicians fretting over culture wars and the role of government and the rights of individuals.--Bush, Vanessa Copyright 2014 Booklist

From Booklist, Copyright (c) American Library Association. Used with permission.

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Review by Publisher's Weekly Review

Though not likely to end controversial debates, Waldman (My Fellow Americans), president of the Brennan Center for Justice at NYU School of Law, delivers a balanced review of the history of Second Amendment politics and jurisprudence. He goes back to colonial America to distinguish original from changed meanings of gun ownership in the U.S. It's a story of sudden, violent rupture-continuity for two centuries, then radical transformation when the NRA, with the help of a "remarkable, concerted legal campaign," got involved in opposing gun control in the 1970s. As Waldman shows, the idea of individual gun ownership "simply did not come up" at the Constitutional Convention, but when Madison and others wrote a muddled Second Amendment, the seeds for later confusion and claims were laid. Guns, of course, abounded, but without constitutional protection. That laissez-faire situation ended when lawyers, ideologues, and special interests, all benefiting from the backlash against cultural change after the 1960s, campaigned to change constitutional law. Its result was the Supreme Court's notorious 2008 decision in District of Columbia v. Heller, which enunciated new constitutional law-law that even some of the nation's most conservative jurists condemned. Waldman relates this tale in clear, unvarnished prose and it should now be considered the best narrative of its subject. (June) (c) Copyright PWxyz, LLC. All rights reserved.

(c) Copyright PWxyz, LLC. All rights reserved

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Review by Library Journal Review

The 27 words of the Second Amendment guarantee the right to bear arms. But questions concerning by whom and subject to what regulations have generated thousands more words by historians, law professors, and judges-most importantly in two key U.S. Supreme Court decisions in 2008 and 2010 that ruled that having a gun is an individual right and not a collective right of state militias. The role of the militia in colonial days is where Waldman (Brennan Ctr., New York Univ. Law Sch.) begins. The author discusses the debate in the First Congress on the Bill of Rights, the passage of which was the price for ratification of the Constitution. The story is thin on the next 150 years, jumping ahead to the late 20th century when a new generation of scholars-and the National Rifle Association (NRA)-worked to show the courts that the Second Amendment protected individuals' rights. VERDICT Relatively short and readable, this text is a good introduction to judicial and academic debate on the meaning and origins of the Second Amendment with enough endnotes to show the way for those who want to read further.-Michael O. Eshleman, Kings Mills, OH (c) Copyright 2014. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

(c) Copyright Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

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Review by Kirkus Book Review

A review of the evolving meaning of the Second Amendment, a single sentence fraught with emotional controversy.Interpretation of the Second Amendment has always been clouded by its prefatory clause, "A well-regulated militia, being necessary to the security of a free state...." Attorney Waldman (Brennan Center for Justice/NYU Law; Return to Common Sense: Seven Bold Ways to Revitalize Democracy, 2008, etc.) draws on extensive historical research to argue that the amendment's purpose was to ensure that the new federal government could not interfere with the states' rights to maintain local militias as a counterweight to a national standing army; it was never intended to recognize the right of an individual to own a firearm. This was the prevailing consensus among legal scholars through the 20th century. Beginning around 1975, however, the National Rifle Association, Republican politicians and an increasing number of legal commentators pressed for a re-evaluation, culminating in 2008 when the Supreme Court held that the amendment did imply such a right in District of Columbia v. Heller, an opinion the author excoriates, along with the entire concept of "originalist" constitutional interpretation. Up to this point, the author's "biography" of the amendment is sober and sound, but it then descends into all-too-familiar partisan lamentations about the difficulties of imposing further gun controls in the post-Heller era, in spite of his recognition that gun ownership and violence have been declining for decades and that almost all Heller-based challenges to existing gun control statutes have failed. In an era in which militias have long passed into history, Waldman seems to reluctantly accept that the Second Amendment now reflects the fact that "the widespread acceptance of some form of gun ownership is part of the way Americans think." He calls on activists to change that perception in order to change the law.This thoughtful, accessible survey of Second Amendment law will be useful to anyone arguing either side of this endlessly controversial issue. Copyright Kirkus Reviews, used with permission.

Copyright (c) Kirkus Reviews, used with permission.

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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 Second Amendment fundamentalism. Increasingly the debate over guns resembles less a contest over crime policy, and more a culture war over core values. Through it all, we see how the great themes of American history rise and recur: the role of government. Race. Freedom. The singular power of the Supreme Court. Most strikingly, the fact that our view of the Second Amendment is set, at each stage, not by a pristine constitutional text, but by the push-and-pull, the rough-and-tumble of political advocacy and public agitation. But first, we should start by understanding why we have a Second Amendment in the first place. That story begins in the heat of revolution, sixteen miles outside Boston. Excerpted from The Second Amendment: A Biography by Michael Waldman All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.

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