The Second Amendment: A Biography
Michael Waldman
Simon & Schuster
1230 Avenue of the Americas
New York, NY 10020
Copyright © 2014 by Michael Waldman
During Vietnam, there was an oft-used political slogan: Bring the War Home. Protestors would block traffic, inconveniencing commuters so they’d get some small idea of what the war was doing to the Vietnamese.
But yesterday, last year, last decade, the war came home, brought not by anti-war protestors but by damaged white men with weapons of war and hate in their hearts. It hurts to try and understand why someone decides to take his 45-rounds-per-minute Bushmaster XM-15 semi-automatic rifle to mow down second graders.
We accept unimaginable evil: Kids in Connecticut; Colorado moviegoers; country music fans in Vegas; high schoolers in Florida. And in the spurt of recent weeks, there have been festival goers in California; Walmart shoppers in El Paso; diners in Dayton, Ohio; and drivers in Odessa, Texas.
I’m late to Michael Waldman’s “The Second Amendment: A Biography.” President of the Brennan Center for Justice at NYU School of Law, Waldman was director of speechwriting for President Bill Clinton from 1995 to 1999. I went looking for the same answers that prompted Waldman to write in 2014 — because every time we cry do something, the answer is “sorry, there’s the Second Amendment.”
Waldman explains: “I began this book in the months after the Newtown massacre … in part to understand the meaning and history of the Second Amendment … Much of what I learned surprised me, and, I hope, will inform the reader.”
What he shared surprised and informed me. It also saddened and enraged me because many of those most passionate about the Second Amendment don’t understand or appreciate its history.
You’d think it would be easy to deal with a single sentence: “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.”
You’ll learn much from Waldman about the Revolution, and those who struggled to figure out how we should govern ourselves. Their arguments impacted slavery, Reconstruction, and what we’ve done with guns. You’ll learn how the Supreme Court shaped our republic while pre-empting democratic decision-making.
I re-learned a lesson about the limits of words and the power of action. Because for all the rhetoric about originalism — and put Antonin Scalia at the top of the list of offenders — in the end, the justices disregarded history and precedent to do what they wanted to do: to thwart gun control and defy the popular will.
“The amendments,” Waldman tells us, “were the product of a fierce debate over government’s role and the rights of the people … 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 … [And] 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 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.” (Emphasis added.)
Waldman, a great teacher, offers a compelling deep dive into our national history: “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 … Every white man age sixteen to sixty was enrolled. He was required to own—and bring—a musket or other military weapon.”
Waldman links this past to the present: “Debate still burns about the Framers’ intent … 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 on the floor of the U.S. House of Representatives as it marked up the Second Amendment …”
So the critical question remains: “Did the Second Amendment protect militias, or an individual right to a gun?” Waldman’s answer: “both, and neither. It protected the individual right to a gun … to fulfill the duty to serve in a militia …”
The familiar refrain: “they’ll come for our guns.” Five thousand British troops tried to seize the guns stored by the Concord militia. Luckily, militias made up of farmers and tradesmen drove the British back.
To understand the Second Amendment, remember the colonists counter-posed their “virtuous, egalitarian militias” with a standing army paid and owned by the king. Waldman writes: “They saw the army as tyranny in the making, authoritarianism on the march … an oppressive force sent by ‘them.’”
But the Revolution changed their thinking, “Largely because an odd collection of militias often proved incapable of winning against the well-organized British army.” Militiamen deserted in large numbers. It was the Continental Army, “filled with the poor, including black men, indentured servants, and city dwellers,” that prevailed … While members of the public supported militias “who could protect them from Indians, and in the south, from a slave rebellion, for Washington and those around him ‘the war began a lifelong project to forge a national army and a national identity’”
These issues — war and peace, militia vs. army, power held by the States vs. a federal government — were critical for those who wrote the Constitution. Some suggested a Bill of Rights to help convince citizens skeptical about federal power: “[but] Every state voted no. The architects of the new government thought it unnecessary … it was to prove a costly political mistake, and nearly undid the Constitution.”
Things changed when the Founders opted for public ratification: “The publication of the Constitution … printed in full in dozens of newspapers within days—burst far beyond the expected … [and it] would take effect if nine of thirteen states ratified it. Existing state legislatures would have to authorize the calling of conventions … The people of the states were given a stark choice: all or nothing, up or down …
“The convention had made a significant political error when it failed to include a bill of rights. Seven state constitutions already had such declarations, though most were little more than vague statements of basic freedoms that the government ought to respect. Most protected the militia. Four states out of thirteen protected the right to bear arms; only one (Pennsylvania) for personal self-defense …”
Meanwhile, Waldman alerts us to historical facts few opponents of gun control acknowledge: “Boston made it illegal to keep a loaded gun in a home. Laws governed the location of guns and gunpowder storage. New York, Boston, and all cities in Pennsylvania prohibited the firing of guns within city limits … People deemed dangerous were barred from owning weapons … Before the Revolution, Maryland had prevented Catholics from owning guns. Most states banned African Americans, even freemen, from joining the militia; some from holding weapons at all. A variety of gun rules pertained to militia service …”
Waldman adds: “Americans expected to be able to own a gun … They just did not expect the Constitution to address an issue that clearly had no relevance to federal authority … With the Constitution ratified, debate subsided with surprising swiftness … A bill of rights might easily have slipped off the agenda—but for the quirks of one congressional contest in the first election …
In Virginia, “James Madison … faced James Monroe, an old friend and business colleague who was skeptical of the Constitution and now supported a bill of rights … Madison explained he would be for a bill of rights so long as it did not accidentally imply greater power for Congress than intended … His switch of position proved just enough, and he won by 336 votes … [Madison proposed] two amendments dealing with military issues. The first read: ‘The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.’ …
“Here it was, on the floor of the House: the purpose of the right of ‘keeping arms’ was to strengthen the militia and thus ward off the specter of an army. Twelve congressmen joined the debate. None mentioned a private right to bear arms for self-defense, hunting, or for any purpose other than joining the militia … In its first days, the Senate met in secret. We do not know what the senators said in their debates, nor do contemporary records explain the reason for any edits … The Senate reworded and reordered the amendment to its final form:
“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.’” … (Emphasis added.)
Waldman asks: “Wasn’t the debate that led to the Second Amendment a debate about gun ownership? So what did the Framers think the Second Amendment meant? We are faced with a maddening paucity of explanation … Law professor David Yassky, arguing in a brief in a federal court case, noted that a modern reading of this might be that ‘A well regulated militia shall not be infringed.’ … ‘Well regulated’ seems to have connoted internal balance, self-control, and good decorum … In the Articles of Confederation, it seemed to mean a militia with enough weaponry. It may be that ‘well regulated’ means ‘well disciplined’ …
After General Arthur St. Clair attacked Indians in the Ohio Territory, losing almost half its men, Congress passed the Uniform Militia Act of 1792, requiring citizen members to “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges … and shall appear so armed, accoutred and provided, when called out to exercise.” As for more evidence of well-regulated “Congress even established a nationwide registry of privately owned guns for militia use, called a ‘return.’ Officers were to catalogue the military-grade guns owned by the militiamen, and report to the central government …
As for “the right of the people”, “today those on both sides of the issue take it to recognize an individual right of some kind, whether for personal protection or militia service … More frequently, the Framers used ‘the people’ to mean something close to what we would call ‘the body politic.’ … speakers used the phrase ‘the people’ fifty-four times, touching on other issues as well. Every single one referred to the collective mass of Virginians, the voters, or the population generally …
And “keep and bear arms”? “David Yassky notes: ‘Searching a Library of Congress database containing all official records of debates in the Continental and U.S. Congresses between 1774 and 1821 reveals thirty uses of the phrase “bear arms” or “bearing arms” (other than in discussing the proposed Second Amendment); in every single one of these uses, the phrase has an unambiguously military meaning …
“Another scholar looked at databases containing all surviving books, pamphlets, and newspaper articles from the period. He found 202 uses of the phrase in a military context, eight otherwise. In 2013, the National Archives launched a searchable database of all the writings and papers of six key founders (Washington, Adams, Jefferson, Hamilton, Franklin, and Madison). A search for the phrase ‘bear arms’ produces 153 mentions—again, all in the military context or simply repeating the amendment’s text …
“We cannot truly know what the Framers intended. But one would have to look far to find evidence that their principal concern was the risk that government would enact gun safety laws, or disarm farmers … they sought above all to protect the militias … (Emphasis added.)
And so during the Andrew Jackson years: “States began to pass the first modern-style gun control laws, focusing on easily concealed pistols or knives. (One could not conceal a musket.) In response to these laws, for the first time, some Americans began to argue that the ‘right to bear arms’ protected individual gun ownership … Even so, courts generally ruled that ‘the right to keep and bear arms’ referred to militias, not an individual right … Arkansas’s court ruled that the Second Amendment and similar provisions in state constitutions only protected militias. Two models emerged: one calling the right a collective one, the other an individual right.”
In Tennessee “A man convicted of brandishing a knife claimed a violation of his right to bear arms. In an 1840 ruling, the state’s high court explained that ‘A key was the phrase “bear arms,” which was understood to have a military meaning. ‘A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.’ (Emphasis added.)
Waldman connects the issue of gun rights with race and the increasing conflicts between the expressed need to protect white privilege versus the need of black Americans for self-defense, the struggle for slaves to be free citizens.
“Each generation makes its own Second Amendment. In the decades before the Civil War, Americans had more guns than ever before. More of them were angry, too … It pushed forward simmering issues of racial violence … One spur for war was the U.S. Supreme Court’s notorious 1857 Dred Scott decision … [declaring] that freed slaves could never be citizens, even when they move into a free state. If so, it ruled, they would be entitled to ‘the privileges and immunities of citizens.’ That vague phrase sits in the Constitution, but was never defined. For the first time, the Court articulated what it saw those privileges to be:
‘It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation … and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.’
“[Justice] Taney purported to show that the Founders intended to prevent African Americans from being citizens, even though the Constitution did not say that … The South relied more on guns, because the South was a society with millions of people in bondage who could revolt at any moment. Many laws in Southern states had disarmed free black men …”
Meanwhile, “State governments passed Black Codes seeking to restore slavery in all but name. These laws disarmed African Americans but let whites retain their guns. Pitched battles left scores of freedmen dead in Memphis and New Orleans …
In South Carolina, “An army general issued a proclamation suspending the state’s Black Codes, declaring, ‘The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed; nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons, nor to authorize any person to enter with arms on the premises of another against his consent.’
“Congress tried to impose order … The Civil Rights Act of 1866 sought formally to establish nondiscrimination and racial equality … to guarantee the ‘privileges and immunities’ of national citizenship, borrowing language used by the Supreme Court in the antebellum Dred Scott decision. Johnson vetoed that, too. Congress overrode both vetoes …The Fifteenth Amendment guaranteed former slaves the right to vote, radical enough. The Fourteenth Amendment promised a social revolution.
“It clarified that anyone born in the United States is a citizen, thus overturning Dred Scott. It declared that no state could ‘deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ And it declared that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ … Much of the next century of constitutional law amounted to a debate over the meaning of its phrases, grand but general, and to whom they should be applied …
“Southern states were barred from reentering the United States until they ratified the Fourteenth Amendment. African Americans began to flourish, electing officials throughout the South. Whites responded with terrorism, through the Ku Klux Klan … The [Texas] governor persuaded the legislature to pass a law ‘prescribing severe penalties for keeping and bearing deadly arms.’ In Mississippi the governor persuaded legislators to pass a law prohibiting the ‘barbarous practice’ of carrying concealed weapons, which he said ‘was almost universal among both races in the South.’
Sadly, with a deal to decide the election of 1876, the Republicans withdrew U.S. troops from the South and “The white-dominated caste system reasserted itself. It would take nearly a century to undo the consequences of Reconstruction’s ignominious end … [while] the Supreme Court led the judiciary in a shameful series of cases that denied to African American citizens the protection specifically designed to be given to them by the new constitutional provisions … Those rights described only national rights, the Court ruled, but not those given within state laws or constitutions.”
In 1872, in Louisiana “the paramilitary White League … massacred one hundred freedmen, losing two white men … Federal prosecutors charged white defendants with violating the civil rights of the freedmen, including the right to bear arms. Only three men were convicted. They appealed.
“The U.S. Supreme Court heard the case in 1876. In U.S. v. Cruikshank, the justices ruled flatly that the Second Amendment—like the rest of the Bill of Rights—only applied to Congress. ‘The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” It found that the convictions of the men were unconstitutional. The majority opinion neglected to mention that the case involved a massacre … (Emphasis added.)
“At the same time, gun control laws were ubiquitous. A photo shows the main street of Dodge City, Kansas, in 1879 … One expects a gunfight to erupt at any moment. Yet in the middle of the street is a large sign: “The Carrying of Fire Arms Strictly Prohibited.”
At the turn of the 20th century, the New York State legislature required that handguns be licensed by the police, making it a felony to carry a concealed gun outside the home. Similar laws were passed in several other states.
Waldman reminds us that the Supreme Court twice more ruled that the Second Amendment did not create an individual right to gun ownership. “One 1886 case, Presser v. Illinois, involved an armed parade of German immigrants affiliated with the Socialist Workers Party … [who] faced off against the newly created National Guard, which enforced the will of employers. The radicals insisted they, too, be regarded as a militia under the Second Amendment. The Supreme Court ruled that Illinois could decide who was, in fact, in its militia. More, it reaffirmed that the Second Amendment did not apply to states—but they could not pass laws that ‘prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.’ … [nor] ban guns to the degree that it would interfere with the federal government’s military needs. In Miller v. Texas, a criminal defendant argued that the state’s law prohibiting the carrying of weapons violated his Second Amendment right. The court disagreed: ‘We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions.’”
“Prohibition had sparked mayhem in the cities … New weapons, first designed for use in World War I, made it easy for gangsters to spray bullets at their foes … [FDR] won passage of the first federal gun legislation, the National Firearms Act of 1934. The law imposed a heavy tax on the weapons used most prominently by gangsters … Machine guns and sawed-off shotguns had to be registered, and could not be transported across state lines …
“The Supreme Court upheld the 1934 law in United States v. Miller … Justice James Clark McReynolds, no friend of the New Deal, wrote for a unanimous Court. Without evidence that a sawed-off shotgun ‘at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense … (Emphasis added.)
“When Martin Luther King Jr. and Robert F. Kennedy were assassinated in the spring of 1968, President Lyndon Johnson pressed Congress to enact the Gun Control Act of 1968. It established a federal licensing system for gun dealers and banned the importation of military-style weapons. It also prohibited certain classes of people deemed dangerous—felons; fugitives; people dishonorably discharged from the military—from purchasing or possessing guns. The NRA stayed mostly silent. The assassination attempt on Ronald Reagan led over a decade later to a new gun law. The Brady Bill—named after his wounded press secretary, James S. Brady, who campaigned for passage—required a background check and waiting period before buying a gun. The next year President Bill Clinton won passage of a ban on assault weapons as part of a larger crime bill … The rate of violence peaked, then began to fall steeply starting in the mid-1990s …
“And through it all, the decisions were made—or not made—by democratic means … The courts, in short, stayed out. As crime policy—even gun laws—were debated, few thought that some constitutional provision, long submerged, in fact could strap limits on what society could and could not do to preserve order. (Emphasis added.)
“The constitutional consensus was expressed pungently by Chief Justice Warren Burger: ‘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 …’”
So what changed? The NRA and conservatives adopted a long-range plan to reshape our courts. The NRA, created by militiamen and army veterans to teach gun safety and increase accurate shooting, became one of America’s most powerful and conservative lobbies. It began a concerted effort to rewrite history and, with its small army of Constitutional “scholars,” to steer our courts from social activism to what it imagined were conservative principles, claiming to know what the Founders intended. The NRA began a campaign to write new law review submissions. Waldman quotes historian Carl Bogus: “at least sixteen of these articles—about 60 percent—were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations, although they did not always so identify themselves in the author’s footnote …”
David Kopel, for example, wrote or coauthored 19 law review articles over the decade. While the NRA Foundation provided $1 million to endow the Patrick Henry professorship in constitutional law and the Second Amendment at George Mason University Law School … These authors used the same material, the same quotes, and created a new record of scholarship.
Yet, Waldman reminds us “It’s important to note who did not change their view of history: historians … [who] continued to conclude, with one or two exceptions, that the Framers’ concern about militias had animated the Second Amendment.”
I’ll leave it to your reading of Waldman to examine the many distortions employed by the revisionists. As he notes “When one delves into the articles’ historic claims, a startling number of them crumble.”
What motivated them? A decade’s worth of liberal decisions: “the Warren Court had required that criminal defendants be provided counsel (Gideon v. Wainwright), that police needed to let suspects know they had ‘the right to remain silent’ (Miranda v. Arizona), and that electoral districts must reflect ‘one man one vote’ (Reynolds v. Sims). The Court expanded protection for free speech as well. In New York Times v. Sullivan, it ruled that a public figure must prove actual malice to win a libel judgment, thus greatly expanding public debate. More controversially, the court identified and forcefully protected a right to privacy in the Constitution. Such a right is not mentioned in its text. However, in Griswold v. Connecticut in 1965, the Court struck down a law prohibiting the sale of contraceptives. Justice William O. Douglas said that the right to privacy could be discerned in the ‘penumbras, formed by emanations’ from the Bill of Rights’ specific guarantees. Roe v. Wade followed eight years later, building on Griswold.”
We live with the results of the successful conservative assault on our court system: attacks on a woman’s right to choose, the decision to allow the wholesale purchase of our representatives by dark and secret money interests, and the ability of gun manufacturers to prevent us from protecting ourselves and our children from damaged men with weapons of war.
Which brings us to the Federalist Society and its first faculty advisor, Antonin Scalia, whose philosophy according to Waldman “appears motivated more by animus to the politically liberal interpretations he saw driving notions of the evolving Constitution …”
As for Heller: “A small group of libertarian lawyers … targeted a gun law passed by the local government in Washington, D.C., in 1976, perhaps the nation’s strictest. It barred individuals from keeping a loaded handgun at home without a trigger lock … Dick Heller, a security guard at the Thurgood Marshall Federal Judiciary Building … wanted to bring his work revolver home to his high-crime neighborhood … The D.C. Circuit Court of Appeals … struck down the gun law, 2 to 1 …”
When the Supreme Court considered the matter: “There were few questions about current gun laws, or the toll of gun violence, or legislative history, or precedent: all the things prior courts relied on to make major decisions. Queries from the justices focused heavily on colonial, early American, even seventeenth-century British history …”
So, in 2008, five to four, “For the first time, the Court ruled that the Second Amendment recognizes an individual right to own a gun unrelated to militia service … Scalia does not seek to explain the Framers’ original intent: this is emphatically an opinion focused on a closely parsed text, regardless of what it meant to those who wrote and ratified it. The Second Amendment, he begins, ‘is naturally divided into two parts: its prefatory clause and its operative clause’ But he has a surprising way to deal with that prefatory clause, the homage to the ‘well regulated militia being necessary to the security of a free state,’ so important to the Framers. He skips right over it. Scalia simply lops off the first half of the amendment …
For Scalia: “What counts is the second half … because that is the way people in the past used to read constitutional provisions. In support he turns to a treatise on statutes published in 1874, nearly a century later … Then Scalia takes the reader on an almost claustrophobic reading of the words of the amendment’s second part. Who are ‘the people’? The majority concludes quickly that meant all members of the political community. It simply announces peremptorily: ‘We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.’ (Emphasis added.)
As for ‘keep and bear arms’: … “The analysis verges on tendentious: ‘At the time of the founding, as now, to ‘bear’ meant to ‘carry’ … [citing] three separate dictionaries from the 1700s … At times this word search stretches credibility. The phrase ‘bear arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against,’ which was in turn followed by the target of the hostilities.”
Waldman declares that Scalia “is plainly wrong. When the Framers debated giving conscientious objector status to those ‘religiously scrupulous of bearing arms,’ Madison and Gerry were not worried about those too physically weak to lift a musket … Scalia fumes and fusses about the words. ‘Bear’ must mean ‘carry,’ since ‘keep’ means ‘keep.’ Otherwise, ‘It would be rather like saying “He filled and kicked the bucket” to mean ‘He filled the bucket and died.’ Grotesque. … ‘Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.’ …
“The opinion then spends precisely two pages (out of sixty-four) on ‘a well regulated militia.’ It agrees that the Constitution defines those entities with precision, as the military forces controlled by state governments—but breezily asserts that the amendment referred to something else, meaning ‘all able-bodied men’ …
“The opinion selectively cites later commentators from the 1800s who agree with an individual rights interpretation … The Court’s ruling overturned two centuries of precedent. Usually justices acknowledge that fact, as when Brown v. Board of Education overturned Plessy v. Ferguson. Instead of being intellectually honest about that, Scalia’s opinion insists it did no such thing. Most relevant is the Miller case from 1939, which found that the Second Amendment did not protect guns not used for ‘military purposes.’ The majority does not say it overrules Miller. Rather, it explains that Miller simply held that the sawed-off shotgun was not covered by the right: the ‘type of weapon at issue was not eligible for Second Amendment protection …
“And then—after engaging in hyper-literal readings of words, and after pages of highly selective historical readings from two hundred years ago that ignore the history of the past hundred years—suddenly the opinion veers away from originalism altogether …”
Scalia writes: “Like most rights, the right secured by the Second Amendment is not unlimited … Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Waldman tells us: “The opinion offers another clue for future courts: weapons that are ‘dangerous and unusual’ can be banned, but those that are ‘in common use’ cannot. Market share evidently determines constitutionality. This fully severs the first half of the amendment and floats it off to sea. The militia is irrelevant, Scalia writes. For ‘it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.’ Or, to paraphrase the justice’s frequent reply when asked about Bush v. Gore, “Well regulated militias? Get over it.” … (Emphasis added.)
Let’s jump to Waldman’s final lessons: “elections matter. The presidents who appointed the five justices in the majority all were themselves NRA members.” That Heller was the result of “the long campaign by the gun lobby to create a public climate that would make a Supreme Court ruling inevitable …”
“In June 2008, a mere two hours after Justice Scalia read out Heller in the Supreme Court, gun supporters filed the first lawsuit to strike down Chicago’s municipal law. By the next day, the NRA and its allies filed five suits around the country. Within months, dozens more cases were working their way through the courts … All knew the anticipated next step for gun rights advocates would be to seek a ruling that the Second Amendment’s individual right applied to the states … So in 2010 in McDonald v. Chicago, the Supreme Court addressed the Second Amendment again—this time as it applied to states … The vote among the justices, once again, was 5 to 4: the Second Amendment did in fact apply to the states …
“All told, dozens of suits challenging the vast array of gun laws were brought. Surprisingly, courts rebuffed nearly all. In the first two years after Heller, federal courts considered the constitutionality of gun laws in two hundred cases. Gun laws were upheld in all but two … judges upheld laws requiring ‘good cause’ for issuance of a permit to carry a concealed gun, those requiring guns to be kept in a locked container when not in the owner’s possession, requiring gun owners to be twenty-one. Courts upheld laws that prevented people from buying a gun if they had a past felony conviction, or a misdemeanor domestic violence conviction, or had been involuntarily committed to a mental institution. Criminal defendants now routinely claim violation of their Second Amendment rights. These claims have been rejected, too.
So where are we?
Waldman writes: “Heller had proclaimed a right, one individuals can sue to uphold—but agreed that there were limits to that right … First, they ask whether the law affects a core Second Amendment right. What is that right? Heller identified the right of self-defense in ‘hearth and home,’ with a ‘commonly used’ weapon. Then judges scrutinize the law, to see whether it goes too far to impinge on that right … Yes, state and local governments could take steps to protect public order and fight against violence. But those moves now might be limited by a right, proudly brandished by an individual, which at some level might trump the public need …” (Emphasis added.)
Waldman reminds us that while the number of guns in the United States has continued to climb, “gun ownership rates have slid, from half of all households in the 1970s to 34 percent … [Today] gun rights adherents and gun control backers occupy different mental universes, seeing the same facts in entirely different ways …The Pew Research Center presents some startling statistics: ‘The general profile of gun owners in America differs substantially from the general public. Roughly three-quarters (74 percent) of gun owners are men, and 82 percent are white. Taken together, 61 percent of adults who own guns are white men. Nationwide, white men make up only 32 percent of the adult U.S. population.’ Gun owners are nearly twice as likely to identify as Republicans as non–gun owners …
For those in these different worlds: “What matters is what people fear: are citizens more afraid of gun violence or of being exposed to a predator without the ability to protect themselves … The Supreme Court’s decision to enshrine the individual rights interpretation of the Second Amendment can only worsen that polarization.
“Second Amendment fundamentalism rests powerfully on the idea that an empowered individual—armed to protect himself (gender definitely intended) and his family—is the morally virtuous way to live. It is not just that people cannot rely on police to protect them; it would be worse if they could.”
And the critical lesson about the struggle over the meaning of The Second Amendment: “the reason the Court has pronounced that limited right 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 … Heller can be justified not as originalism, but as something more rooted in common sense: it reflected a popular consensus won by focused activists. …”
And if you’re uncomfortable with what Scalia and the NRA and the Supreme Court have wrought: “Today’s progressives and gun control advocates … will have to enlist historians and legal scholars, for example, to make the case for gun regulations under the new, history-driven regime. They will need to scrape together social science research to help new laws stand up in court. They will have to wage a far more aggressive effort than before to win elections and win over lawmakers …
“Ultimately, we must fight for a Constitution that is imbued with a powerful set of values … We can draw inspiration from perhaps the least debated phrase in the Second Amendment. Least debated, but perhaps most important. “The right of the people’ …
“We can be true to the spirit of the Constitution and the animating forces behind the Second Amendment if we understand that above all else, whenever possible, the ability to make and set gun and other policies through the messy, imperfect democratic process is the ultimate ‘right of the people.’
As increasing numbers of our friends and neighbors and children die at the hands of those who wield weapons of war, Waldman offers a wise and unfortunately essential look at how we got here. I say “essential” because as long as those who support the use of these weapons rely on a faulty interpretation of the Second Amendment, it’s critical that we know how to answer their arguments.
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For some more recent information:
“California high court tosses suit over bullet stamping law”
Sudhin Thanawala, June 28, 2018, AP
https://www.mercurynews.com/2018/06/28/california-high-court-tosses-suit-over-bullet-stamping-law/
“Walmart to Limit Ammunition Sales and Discourage ‘Open Carry’ of Guns in Stores”
Michael Corkery, Sept. 3, 2019, New York Times
https://www.nytimes.com/2019/09/03/business/walmart-guns-ammunition-sales.html?
“How many more names will be added to the list before Mitch McConnell acts on guns?”
Editorial Board, Sept. 3, 2019, Washington Post
https://www.washingtonpost.com/opinions/how-many-more-names-will-be-added-to-the-list-before-mitch-mcconnell-acts-on-guns/2019/09/03/5c111634-ba07-11e9-b3b4-2bb69e8c4e39_story.html
