The Second Amendment brings out the worst in Americans, intellectuals included. Pro-gun scholars recycle truncated quotations and dubious sources; historian Michael Bellesiles, who questioned the importance of guns in early America, won a Bancroft Prize with evidence later found to be false. Stanford historian Jack Rakove, whose reputation is impeccable, once wrote that “this debate engenders rhetorical excesses that would seem completely out of place in any other realm of scholarship.”
Michael Waldman, president of the Brennan Center for Justice at New York University School of Law, falls victim to this curse. His rhetorical excesses render a promising idea far less persuasive than it might have been.
The amendment itself is 27 opaque words: “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.” Is the first clause a limitation (“ ‘The people’ have a right to bear arms only if they belong to the militia”)? A declaration of purpose (“Because weapons strengthen the militia, ‘the people’ have a right to keep and bear arms”)? Or a random thought (“Firearms are important to the militia, and by the way ‘the people’ have a right to keep and bear arms”)?
Whatever it may mean for “the people,” the amendment does seem to play a clear role in the constitutional structure. The Constitution transferred virtually all power over the militia to Congress. Anti-federalists prophesied that Congress would disarm it, then impose tyranny. The Second Amendment was written in part to allay this worry — and that may be its entire meaning. Many, however, have read it to mean that guns in individual hands are a natural right.
A cultural history of that idea would be a fascinating “biography” and might shed light on contemporary legal disputes. But Waldman’s interest is advocacy: He wants to refute the argument that the amendment creates an individual, judicially enforceable gun-ownership right.
This saga was recently covered in Adam Winkler’s “Gunfight: The Battle Over the Right to Bear Arms in America.” Like Winkler, Waldman describes public support for gun control in the 1960s, the radical right turn of the National Rifle Association in the ’70s and what he calls “the tsunami of scholarship and pseudo-scholarship” that advanced the seemingly novel argument that the amendment was “intended” to protect individual gun rights. He tells the stories of District of Columbia v. Heller (2008), which found an enforceable federal right to home handgun ownership, and McDonald v. City of Chicago (2010), which found that right binding on the states.
Winkler carefully reflected both sides’ arguments. To Waldman, however, the idea of an individual right to gun ownership is not just wrong but ridiculous; those who disagree are not just mistaken but fools. Pro-gun historians are hacks — for example, George Mason law professor Joyce Malcolm is “a previously little-known historian” who writes “in a tone of having discovered a lost hieroglyph.” Three respected constitutional scholars — Sanford Levinson of the University of Texas, Akhil Reed Amar of Yale, and Laurence Tribe of Harvard — have concluded that the amendment protects individuals; Waldman does not answer but derides them, citing “Robert Frost’s definition of a liberal: someone so open-minded he will not take his own side in an argument.” Mystifyingly, he calls Heller “ ‘living constitutionalism’ with a Southern accent.” (Its author, Justice Antonin Scalia, is from New York.)
I am Southern, but I read the amendment’s history much as Waldman does — as do most historians I respect. But he dismisses prominent scholars as idiots without examining their arguments; this simply will not do.
Waldman goes on to blame “originalist” constitutional interpretation for Heller. But the dispute is not really about history. If James Madison, the amendment’s sponsor, rose from the dead tomorrow and gave a sworn statement of his “original intent,” not one mind would change. Those who favor gun regulation would argue that in 1790 there were no semi-automatic weapons or high-capacity magazines. The pro-gun side would dismiss Madison’s views (as Justice Clarence Thomas has in the church-state area) as “extreme.”
Whatever the Second Amendment meant in 1790, I have not seen a shred of evidence that the framers’ “right to keep and bear arms” was the “right” today’s gun radicals embrace. The Supreme Court, for now, has held that there is some individual right to gun ownership; but as Waldman correctly notes, in the wake of Heller and McDonald, federal courts have refused to void most regulations. If history is our guide, for more than two centuries it was assumed that states could, within broad limits, regulate the guns “the people” could own, where they could “keep and bear” them and how they could use them. The contemporary claim that gun ownership (unlike other constitutional freedoms) cannot be limited at all is new, historically and legally untenable, and dangerous.
The real firearms argument is not a historical dispute about revolutionary America but a political one about 21st-century America. By one estimate, more than 15,000 Americans have died by gun violence since the Newtown massacre. As historian Jill Lepore recently wrote, in a heavily armed society there is no longer anything that can be called civilian life. Today the battlefield encompasses Army bases, Navy yards, preschools and theaters; a federal judge is randomly shot down on his way home from morning Mass; armed thugs block enforcement of federal law; a deranged man carries out a revenge massacre against those he believes have wronged him.
Radical gun advocates, I think, believe their vision of liberty is worth this price in fear and blood. They claim that their preference is rooted in America’s history, but it is not: Their minds would not be changed even by a book better than this one.
THE SECOND AMENDMENT
By Michael Waldman
Simon & Schuster. 255 pp. $25