MAY 24, 2014
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.
MICHAEL WALDMAN, former speechwriter for Bill Clinton and now president of the Brennan Center for Justice at NYU, confides that he began this book in the months after the Newtown massacre in an effort to understand the meaning and history of the Second Amendment. It’s a fascinating subject, and one that carries the author through numerous historical topics. He starts with the founding fathers and a discussion of what evidence exists as to the original intent of the Second Amendment. He then describes the rise of movements that have come to define the gun debate for the modern era: the National Rifle Association, the Federalist Society, and the emergence of today’s conservative United States Supreme Court. He details the 2008 decision in District of Columbia v. Heller and shares numerous conclusions from legal scholars as to its lack of internal sense, as well as its inadequate handling of the previous centuries of jurisprudence. Finally, he describes how courts have interpreted Heller in subsequent federal court decisions, with the surprising conclusion that the majority of courts have upheld gun restrictions as legitimate regulations of what is now recognized as an individual right to keep and bear arms.
Waldman’s thesis is that despite the historical evidence that the Second Amendment was a response to the concern of the American patriots of the dangers of a standing army and the importance of citizen militias to defend their independence, the United States Supreme Court in District of Columbia v. Heller, as written by Justice Antonin Scalia, improperly concluded that the Second Amendment protects an individual right to bear and keep arms. In this respect his thesis tracks the argument put forth cogently by Justice Stevens in his dissent in Heller. Waldman sets out to examine how and why this decision came about — what was it that changed since the opinion of the Supreme Court in United States v. Miller, a 1939 decision that held that the right to bear arms protected by the Second Amendment must bear some “reasonable relationship to the preservation or efficiency of a well regulated militia,” as well as the hundreds of cases that followed Miller.
A huge part of the change was the evolution of the National Rifle Association from its post–Civil War purpose — training people in proper marksmanship — to its rebirth as a group advocating an individual right to own guns. Waldman argues that this took place as a result of a reactionary response to the cultural changes of the 1960s, leading up to the “Revolt in Cincinnati” in 1977. At that meeting, the old guard was voted out of leadership positions in the NRA and activists from other groups such as the Second Amendment Foundation were brought in. The new leadership of the NRA was much more absolutist, supporting no gun regulation of any kind, and it embraced with a vengeance the idea that the Second Amendment supported the right of all individuals to “keep and bear arms.” And it became, as is well known, a very effective lobby, thwarting a great many gun control bills and defeating legislators who found themselves on the opposite side of the debate.
Waldman locates this movement in the context of a general shift to the right, as Reagan came into office, as well as the rise to power of a conservative brand of legal academia that came to embrace the constitutional doctrine of “Originalism,” the search for the original intent of the framers, as the best way to interpret the Constitution. The book highlights a few criticisms of this approach, but his point is to explain the rise to power of Justice Scalia and his cohorts on the Roberts bench that culminated with District of Columbia v. Heller — ironically, a decision as much about commas and textual analysis as about the “Original Intent” of the drafters of the Second Amendment.
Along the way, we learn many tidbits, as though sitting at the dinner table of an enormously well-read if somewhat garrulous friend. We learn, for example, that Justice Scalia was the original faculty advisor of the first chapter of the Federalist Society at the University of Chicago. We learn that one technique used by the NRA in the 1990s was to fund lawyers who wrote law review articles arguing for the individual right to bear arms under the Second Amendment to the tune of millions of dollars, all circularly quoting each other. We learn about the complete lack of transcripts during the original Senate’s discussion about the passage of the Bill of Rights and the political expediency behind James Madison’s drafting of the Bill of Rights in order to win an election, after having argued against any need for the amendments during the Constitutional Convention.
The book reads, however, more like a lively discussion than a history lesson. Waldman’s penchant for parentheticals and asides (“bless him!” reads one) repeatedly jars the reader into recognizing that this is a very personal reverie over many different topics, both historical and legal, rather than an authoritative or scholarly treatise. He briefly mentions many interesting legal scholars and law review articles, with a sentence or two on each, leaving one to peruse the endnotes to get more clues into the context for each of them. His section on the founding fathers in particular leaves one with the impression of an armchair scholar dipping into a few original sources, somehow telling us both more and less than we need to know: he reminds us that Patrick Henry said “Give me liberty or give me death,” but he fails to explain his role in the ratification of the Constitution, providing generalizations and a few isolated quotes instead.
Waldman is most persuasive and provocative in his final section, in which he traces the effect of Heller on subsequent gun control cases. Heller’s specific holding was that a total ban on handguns in the home in the District of Columbia violated the Second Amendment. But because Washington DC is a federal territory, it did not extend to the states. In 2010, the Supreme Court held in McDonald v. City of Chicago that the same individual right to bear arms for self-defense applied to state laws as well, striking down a similar ban. Waldman covers the case briefly, in a page or two, and then moves on to the consequences of this seemingly blockbuster combination. He writes that in the first two years after Heller, some 200 cases were brought challenging the constitutionality of gun laws — and the gun laws were upheld in all but two. Judges have upheld laws requiring good cause of issuance of a permit to carry a concealed gun, requiring guns to be kept in a locked container when not in the owner’s possession, preventing people from carrying guns if they had a past felony conviction, and many more like regulations. In each case, courts have held, as Justice Scalia noted, that the individual Second Amendment right to keep and bear arms he recognized in Heller is not unlimited and that many regulations on the use of firearms would still be valid. Scalia specifically mentioned laws prohibiting 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, and noted that this list was not exhaustive.
However, it is impossible for gun control advocates to declare victory at this point. Waldman cites the complete ban on carrying guns in public that was struck down in Illinois in Moore v. Madigan by Judge Posner, who had openly criticized the Heller majority opinion. As recently as February 2014, the Ninth Circuit Court of Appeals (which includes California) struck down a “good cause” requirement for carrying a concealed weapon in Peruta v. San Diego on the grounds that the city had defined “good cause” for carrying a concealed weapon to exclude a “general desire to carry for self-defense.” Citing both Heller and McDonald, and reasoning that the right to “bear arms” must extend to the right to carry them around outside of “hearth and home,” the 2-1 panel of the Court held that such a standard violated the Second Amendment. In this respect, the case is at odds with at least one other opinion, Kachalsky v. Cacace in the Second Circuit Court of Appeals (which includes New York). It seems that this issue may be heading for the Supreme Court, if not now, soon.
Ultimately, Waldman brings us back to Columbine, to the “Stand Your Ground” law in Florida, and to Sandy Hook. Despite the opposition by law enforcement throughout the country to the interpretations of the Second Amendment like that in Heller and McDonald, the gun lobby has scored a major victory with Heller. Waldman still finds room for hope, however. He claims that while Americans own more guns than ever before, the numbers of gun owners is down. Similarly, he cites the drop in gun violence between 1993 and 2011 (while noting that murder and violence is still higher in America than in the rest of the industrialized world).
The most fascinating aspect of the gun control debate lies in the vast cultural divide between those impassioned defenders of the individual right to bear arms and those who favor increased gun restrictions. As with so many divides in the United States, this one follows familiar patterns: urban versus rural, north versus south, Republican versus Democrat, even male versus female. Waldman is right when he says that this issue touches on deep-seated values and worldviews that cannot simply be contained by constitutional discourse. This divide in worldviews is epitomized by NRA Vice President Wayne LaPierre’s proposal after Newtown to arm a guard in every elementary school in the nation — an idea viewed by liberals as a loony rant from the “craziest man on earth.” Only one of two outcomes is possible: either demographics alone push our nation one way more than the other, or we learn how to start crossing that divide. Until that day, this is just one more area that fuels a widening gap between our citizens. Mr. Waldman’s book does much to illustrate that gap but little to help bridge it.