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The Second Amendment
By the president of the prestigious Brennan Center for Justice at New York University School of Law, the life story of the most controversial, volatile, misunderstood provision of the Bill of Rights
At a time of renewed debate over guns in America, what does the Second Amendment mean? This book looks at history to provide some surprising, illuminating answers.
The Amendment was written to calm public fear that the new national government would crush the state militias made up of all (white) adult men—who were required to own a gun to serve. Waldman recounts the raucous public debate that has surrounded the amendment from its inception to the present. As the country spread to the Western frontier, violence spread too. But through it all, gun control was abundant. In the 20th century, with Prohibition and gangsterism, the first federal control laws were passed. In all four separate times the Supreme Court ruled against a constitutional right to own a gun.
The present debate picked up in the 1970s—part of a backlash to the liberal 1960s and a resurgence of libertarianism. A newly radicalized NRA entered the campaign to oppose gun control and elevate the status of an obscure constitutional provision. In 2008, in a case that reached the Court after a focused drive by conservative lawyers, the U.S. Supreme Court ruled for the first time that the Constitution protects an individual right to gun ownership. Famous for his theory of “originalism,” Justice Antonin Scalia twisted it in this instance to base his argument on contemporary conditions.
In The Second Amendment: A Biography, Michael Waldman shows that our view of the 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.
At a time of renewed debate over guns in America, what does the Second Amendment mean? This book looks at history to provide some surprising, illuminating answers.
The Amendment was written to calm public fear that the new national government would crush the state militias made up of all (white) adult men—who were required to own a gun to serve. Waldman recounts the raucous public debate that has surrounded the amendment from its inception to the present. As the country spread to the Western frontier, violence spread too. But through it all, gun control was abundant. In the 20th century, with Prohibition and gangsterism, the first federal control laws were passed. In all four separate times the Supreme Court ruled against a constitutional right to own a gun.
The present debate picked up in the 1970s—part of a backlash to the liberal 1960s and a resurgence of libertarianism. A newly radicalized NRA entered the campaign to oppose gun control and elevate the status of an obscure constitutional provision. In 2008, in a case that reached the Court after a focused drive by conservative lawyers, the U.S. Supreme Court ruled for the first time that the Constitution protects an individual right to gun ownership. Famous for his theory of “originalism,” Justice Antonin Scalia twisted it in this instance to base his argument on contemporary conditions.
In The Second Amendment: A Biography, Michael Waldman shows that our view of the 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.
255 pages, Hardcover
First published May 20, 2014
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April 1, 2023
This book was a surprise. I was hoping it would prove informative and I did expect to learn a few things about an amendment that has gotten a lot of recent attention but not too much historical attention. I am no gun rights advocate. In fact about half my legal career in court was defending nothing but murder cases. I have no love for guns and can conceive a very few reasons for any citizen of this country to possess a handgun. Now having said that I will tell you that this book was so even handed in its treatment of its subject that I can now admit to believing there is a legitimate right to self-defense and reasonably restricted gun ownership. I am converted but not a true believer.
This is a relatively short book for a subject that has generated such heated controversy. At 177 pages of text, however, the author does an amazingly complete job of a lot more than the history of the Second Amendment. He notes early on that this amendment hasn't gotten anywhere near the attention that the other Articles and Amendments of the Constitution. He mentions this to explain the difficulties faced by the justices of the SCOTUS in trying to deal with issues presented by this Amendment. Fortunately, those cases involving the 2A are few and far between, at least up until the last 20 years. It is a practice of Constitutional interpretation to try to learn what the drafters intended when they put those words to paper. For that reason resort to Madison's notes and other sources of debate and discussion are very useful. When looking for this information on the 2A there is very little to find. The author puts a lot of emphasis on this lack of information as an indication that maybe the drafters didn't regard this amendment as seriously as the others. But it is the Second Amendment and not the Tenth so maybe that's true and maybe it isn't? The lack of information from the drafters, however, has the author looking at other sources of law, discussion, and 18th century practices and history and makes some interesting discoveries. While having firearms was rather common so was restricting the ownership and use of these weapons among 18th century citizenry. People that presented a danger to the community were prohibited from ownership. During the Revolution disarming British sympathizers was a standard practice. In Maryland Catholics were forbidden to own guns. Is it necessary to mention that during this era and for some time to come African American freemen were prohibited? The author does a brief tour through this country's history of gun restrictions to the point of mentioning Dodge City and all those old western movies where you had to turn in your gun to the local sheriff upon entering town. Restrictions on gun rights is not new or as offensive to Constitutional principles as the NRA would have us believe.
After an informative review of the history prior to the drafting of the 2A the author gives us more of the 2A's legal history. Thankfully this is a brief history and it is not bogged down with a lot of legalese though the author is a lawyer he spares us this failing of our profession. What is presented is easily understood by any layman. Following this discussion the author dives into the morass of the present gun rights debates and spares nothing even to the point of taking on Sandy Hook and Columbine. He does deal with some discussion of Constitutional interpretation theory and especially takes issue with Scalia and his originalist theory. This culminates with the infamous Heller case and then the McDonald case. The author uses the criticisms of a couple of stellar conservative jurists to rake Scalia and his Heller decision over the coals and that was more than a little amusing. Let's just say that Scalia is labelled something of a hypocrite for criticizing previous courts for creating rights out of thin air and then this noted "originalist" goes and does the same thing with none of the finesse of the previous courts.
There are a number of things to be taken from reading this book. For me I think this treatment of the 2A controversy leads me to believe there is a right of self-defense that could be found in our Constitution, however, I wouldn't look to the 2A for it. In my opinion the 2A is an 18th century relic and is a legal nullity in our modern world. The right I believe could be found, arguably, in other areas and probably in the 14th Amendment and the reasons for that are discussed in the book. The Heller decision is a fraud and probably a political one but it is one that is survivable because of the offhand exceptions that Scalia mentions in the opinion. The right of self-defense that Heller provides is not an unrestricted right but it is the gun rights fundamentalists that refuse to understand this part of the the decision. The fundamentalists have refused to accept that rights carry responsibilities and that is the reason for our current controversy. The anti-gun people are willing to accept all of the Heller decision but the fundamentalists only want the rights part. For a book on a legal history this was an exceptional book and if you have strong feelings on either side of this issue then this book is more than worth your time to read and ponder. It gave me a new way of looking at an issue I thought I was settled on and maybe it will affect you as well. Enjoy.
This is a relatively short book for a subject that has generated such heated controversy. At 177 pages of text, however, the author does an amazingly complete job of a lot more than the history of the Second Amendment. He notes early on that this amendment hasn't gotten anywhere near the attention that the other Articles and Amendments of the Constitution. He mentions this to explain the difficulties faced by the justices of the SCOTUS in trying to deal with issues presented by this Amendment. Fortunately, those cases involving the 2A are few and far between, at least up until the last 20 years. It is a practice of Constitutional interpretation to try to learn what the drafters intended when they put those words to paper. For that reason resort to Madison's notes and other sources of debate and discussion are very useful. When looking for this information on the 2A there is very little to find. The author puts a lot of emphasis on this lack of information as an indication that maybe the drafters didn't regard this amendment as seriously as the others. But it is the Second Amendment and not the Tenth so maybe that's true and maybe it isn't? The lack of information from the drafters, however, has the author looking at other sources of law, discussion, and 18th century practices and history and makes some interesting discoveries. While having firearms was rather common so was restricting the ownership and use of these weapons among 18th century citizenry. People that presented a danger to the community were prohibited from ownership. During the Revolution disarming British sympathizers was a standard practice. In Maryland Catholics were forbidden to own guns. Is it necessary to mention that during this era and for some time to come African American freemen were prohibited? The author does a brief tour through this country's history of gun restrictions to the point of mentioning Dodge City and all those old western movies where you had to turn in your gun to the local sheriff upon entering town. Restrictions on gun rights is not new or as offensive to Constitutional principles as the NRA would have us believe.
After an informative review of the history prior to the drafting of the 2A the author gives us more of the 2A's legal history. Thankfully this is a brief history and it is not bogged down with a lot of legalese though the author is a lawyer he spares us this failing of our profession. What is presented is easily understood by any layman. Following this discussion the author dives into the morass of the present gun rights debates and spares nothing even to the point of taking on Sandy Hook and Columbine. He does deal with some discussion of Constitutional interpretation theory and especially takes issue with Scalia and his originalist theory. This culminates with the infamous Heller case and then the McDonald case. The author uses the criticisms of a couple of stellar conservative jurists to rake Scalia and his Heller decision over the coals and that was more than a little amusing. Let's just say that Scalia is labelled something of a hypocrite for criticizing previous courts for creating rights out of thin air and then this noted "originalist" goes and does the same thing with none of the finesse of the previous courts.
There are a number of things to be taken from reading this book. For me I think this treatment of the 2A controversy leads me to believe there is a right of self-defense that could be found in our Constitution, however, I wouldn't look to the 2A for it. In my opinion the 2A is an 18th century relic and is a legal nullity in our modern world. The right I believe could be found, arguably, in other areas and probably in the 14th Amendment and the reasons for that are discussed in the book. The Heller decision is a fraud and probably a political one but it is one that is survivable because of the offhand exceptions that Scalia mentions in the opinion. The right of self-defense that Heller provides is not an unrestricted right but it is the gun rights fundamentalists that refuse to understand this part of the the decision. The fundamentalists have refused to accept that rights carry responsibilities and that is the reason for our current controversy. The anti-gun people are willing to accept all of the Heller decision but the fundamentalists only want the rights part. For a book on a legal history this was an exceptional book and if you have strong feelings on either side of this issue then this book is more than worth your time to read and ponder. It gave me a new way of looking at an issue I thought I was settled on and maybe it will affect you as well. Enjoy.
February 1, 2020
Never one to shy away from controversial political and legal issues, I turned to Michael Waldman’s book about the Second Amendment to the US Constitution, dealing with the right to bear arms. A topic that has become extremely controversial and has, quite literally, torn segments of the population apart, Waldman looks to explore the history of the amendment, as well as some of the early thoughts on the provision. The book opens with a lengthy analysis of the Founding Fathers’ meetings and comings together to hash out a constitutional document for the new republic, before they entertained some key amendments to form a Bill of Rights. Waldman looks at these debates and some of the written notes, exploring some of James Madison’s work to decipher not only the wording of the amendment, but to put it into context. The wording is so out of sorts with the other amendments that it baffles the reader (both at the time and now) to understand some of the nuances and how poorly it was cobbled together. Waldman cannot tell why this was done, but does address that the concept was perhaps tied to England’s own Bill of Rights from a century before. Nevertheless, it was enshrined and society accepted the right for citizens to bear arms to form a militia for state protection. Even the courts glazed over it until challenges began in the late 19th century. Waldman explores that the courts, all the way up to the Supreme Court of the United States (SCOTUS) saw the militia aspect for what it was and dismissed anyone seeking personal right to bear or possess arms of most any sort. Pressure began in the mid-20th century with the emergence of the National Rifle Association (NRA), which began the hard push to get personal gun ownership and carve out the part of the Second Amendment that suited their needs (conveniently forgetting the militia part when it inculcated its members). It was only when SCOTUS heard District of Columbia v. Heller that things really turned on its head in the legal community. In a 5-4 decision written by that most wily of Associate Justices, Antonin Scalia, the Court finally came down on the side of the constitutional right of individuals to bear arms. Waldman goes into detailed analysis of the decision, its immediate fallout, and how Scalia’s form of constitutional interpretation seems to be used when it suits him and left shelved when it does not. From there, Waldman looks to the US legal and social world post-Heller and how the mass shootings and push for more gun rights have turned America in a direction that many outside the fifty states (and lots within) would shudder to digest. In a stunning exploration of all things on the topic, Waldman does a wonderful job with this biographical piece. I can only hope that many will read this to better understand the situation, as well as the political influence and brainwashing of falsehoods that is being purported in this election year! Recommended to those who enjoy detailed constitutional analysis, as well as the reader who has a passion for political and legal history.
I actually came across Waldman’s book when it was referenced in another tome I was recently reading about the need to repeal the Second Amendment for its misuse and great misunderstanding. Many of the arguments Waldman presents were also present in there, though this piece explores some of the backstory in greater detail. Waldman tells the detailed story of all aspects of the Second Amendment, as any strong biographical piece should. He lays out not only the arguments, but substantiates things for the reader to better understand context. Without getting tied up in too many knots, he seeks to focus his attention on the cogent parts of history and offers gloss over of other parts, namely those long periods when Second Amendment talk was minimal. I am pleased to see that Waldman does not shy away from criticism, as it gives the reader something to consider while they read, absorbing as well as thinking with an open mind. The book is well-paced and divided into three parts, depicting the build-up to the amendment, how the interpretation became more jaded and eventually codified by a set of conservative justices who seemed to have had their heads in the sand and a certain human orifice, before looking at the subsequent way America turned with Heller on the books. While the book can get quite technical, it is not written solely for the academic, but surely for the reader with an interest in the topic at hand. I am so pleased to have found something readable dealing with the Second Amendment, particularly a tome that offers some thoroughness without drowning the reader in minutiae.
Kudos, Mr. Waldman, for another stunning exploration of a key political aspect in American legal and social history. I hope others will find this book and be as amazed as I have been.
Love/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
A Book for All Seasons, a different sort of Book Challenge: https://www.goodreads.com/group/show/...
I actually came across Waldman’s book when it was referenced in another tome I was recently reading about the need to repeal the Second Amendment for its misuse and great misunderstanding. Many of the arguments Waldman presents were also present in there, though this piece explores some of the backstory in greater detail. Waldman tells the detailed story of all aspects of the Second Amendment, as any strong biographical piece should. He lays out not only the arguments, but substantiates things for the reader to better understand context. Without getting tied up in too many knots, he seeks to focus his attention on the cogent parts of history and offers gloss over of other parts, namely those long periods when Second Amendment talk was minimal. I am pleased to see that Waldman does not shy away from criticism, as it gives the reader something to consider while they read, absorbing as well as thinking with an open mind. The book is well-paced and divided into three parts, depicting the build-up to the amendment, how the interpretation became more jaded and eventually codified by a set of conservative justices who seemed to have had their heads in the sand and a certain human orifice, before looking at the subsequent way America turned with Heller on the books. While the book can get quite technical, it is not written solely for the academic, but surely for the reader with an interest in the topic at hand. I am so pleased to have found something readable dealing with the Second Amendment, particularly a tome that offers some thoroughness without drowning the reader in minutiae.
Kudos, Mr. Waldman, for another stunning exploration of a key political aspect in American legal and social history. I hope others will find this book and be as amazed as I have been.
Love/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
A Book for All Seasons, a different sort of Book Challenge: https://www.goodreads.com/group/show/...
May 1, 2015
Okay, if you don't want to read an anti-NRA rant, and I wouldn't blame you if you didn't, then please avoid reading these comments. But I'm a bit rankled right now because of what that group is doing in my state of NH. As I write this, a bill is being passed to allow anyone with a gun license, and that includes just about everyone, to carry a concealed, loaded weapon. Shame on the NRA and their backers. The only people benefiting from this are the gun manufacturers. So I guess all that ridiculous Republican talk about creating jobs meant lots of jobs making guns. That and more tax cuts for the rich.
To put it bluntly, if the NRA wanted a penny from me, they would have to pry it "out of my cold, dead hands." Why do people join up? I don't get it. All I see are gun ranges filled with young children learning about guns. Play baseball with your friends! Michael Moore even spoke of being a member. Couldn't he find a better place to be a member and spend his money? And any cop who is a member cannot be thinking clearly.
I have seen many NRA bumper stickers, but I have never seen a single one that mentioned "a well-regulated militia." The "Founding Fathers" would be appalled at this disgrace. Nothing in that amendment means you can own an assault rifle, an automatic weapon, armor-piercing bullets, or concealed handguns.
Gun regulations have been common throughout our history. There's nothing wrong with them. In fact, they help to preserve order and control unnecessary violence. This book gives plenty of examples.
One particularly shocking line came from Patrick Henry warning about losing slavery. He said, "They'll take your niggers away from you," to the sound of laughter, according to the book. And as always to this day, the fear of African-Americans with guns sent out fear.
In 1871, the NRA was created to train men to shoot safely and accurately. General Ambrose Burnside was the 1st president. It almost collapsed, but the federal government helped it out by giving the members surplus guns. The focus shifted to hunting. It expressed unease with gun laws but never opposed them.
The tumult of the 1960s changed all that. In March 1963, an article in the NRA magazine advertised a rifle. A man named "A. Hidell" bought it through the mail. He was Lee Harvery Oswald. How could someone unseen buy a rifle and ammunition through the mail? Crazy, right? So Congress considered new gun laws. Had NRA supposed support, but somehow gun owners wrote to their reps to bury the bill. Now the gun lobby itself was being investigated.
I can remember a personal incident in my life. I was getting a ride from an Air Force officer when I was in the military. I gave him a hard time because of his NRA sticker on his dashboard. I said he had "blood on his hands." Thinking back, I have absolutely no regrets for saying that. I wish I still had that kind of moxie.
Race entered the picture. "The Armed Citizen" became a column warning about race riots. They profiled vigilantes. Guns & Ammo warned about "Communists and leftists who want to lead us into the one-world welfare state." The South and the Southwest became the most gun addicted parts of the country. As American Heritage magazine said, "having a gun was a white prerogative."
Backlash only made the NRA more vocal. Good senators and representatives lost their jobs for daring to oppose the NRA. Same thing happened in the 90s with the banning of assault rifles.
The incident known as "the revolt in Cincinnati" had to do with the cheap handgun known as the Saturday night special. Many NRA members were upset about their group and wanted changes. They were tired of these political shenanigans. They moved to Colorado from Cincinnati to focus on real gun issues and not opposing all laws. But the gun radicals took revenge. They turned off the air conditioners. Neal Knox said that maybe the assassinations were possibly part of a larger conspiracy to "disarm the people of the free world." I'm not shitting you. He really said that. The change had come. From now on, it was 2nd amendment all the time, no matter what.
Political changes occurred as well. Southern racist Democrats left the party for the Republicans. The GOP that consisted of rich people who cared about the arts, education, and those who were "less fortunate" disappeared.
Evangelical Christian churches underwent a similar change. Those who voted for Jimmy Carter were now voting for Ronald Reagan and no gun laws.
A new coalition was forming. The Chamber of Commerce became more powerful and more Republican. No longer were corporations supporting both parties like they used to. The split had formed. A belief in "tradition" and "service to country" gave way to "freedom" and "mistrust of government." The patriotism that my father taught me seemed to have disappeared.
There was one hiccup on the road: the Brady Bill which Reagan supported. You don't see that support any more in the NRA.
It was Wayne LaPierre who referred to government agents as "jack-booted thugs." Not long after that, Oklahoma City happened. George H. W. Bush resigned from the group to protest its incendiary rhetoric. Good for him!
Let me quote you from Mr. Charlton Heston:
I am not really here to talk about the Second Amendment or the NRA, but the gun issue brings into focus the culture war that's going on.
Rank-and-file Americans wake up every morning, increasingly bewildered and confused at why their views make them lesser citizens. . . . Heaven help the God-fearing, law-abiding, Caucasian, middle class, Protestant, or--even worse--Evangelical Christian, Midwest, or Southern, or--even worse--rural, apparently straight, or--even worse--admittedly heterosexual, gun-owning, or--even worse--NRA-card-carrying, average working stiff, or--even worse--male working stiff, because not only don't you count, you're a downright obstacle to social progress. . . . That's why you don't raise your hand. That's how cultural war works. And you are losing.
And who can forget his crazy fighting words:
. . . I want to say those fighting words for everyone within the sound of my voice to hear and to heed--and especially for you Mr. Gore. FROM MY COLD, DEAD HANDS! As he held up a rifle.
The new incredibly expensive headquarters has a text on the wall of the 2nd amendment. Yeah, right, but guess what part they leave out. You guessed it: "well-regulated militia."
Four times the Supreme Court had held that the 2nd amendment did not give right to individual gun ownership. The NRA had to do something about that. And they did. Articles came out saying how the judges got it wrong so many times.
Those who fought against this tried to be reasonable. But the problem has been best expressed by Robert Frost and his definition of a liberal: "someone so open-minded he will not take his own side in an argument."
It is very important to note this: No respected historian ever defended the NRA point of view. Revisionism came from lawyers and professors. And they were well supported by guess who. Law review articles are NOT subject to peer review like science and history articles are.
By the way, Patrick Henry never said, "the great object is, that every man be armed." Donate $10,000 to the NRA and you are a Patrick Henry Member. I guess they never got the word.
And Jefferson NEVER said "one loves to possess arms" talking about guns. He was talking about letters. That doesn't stop the NRA. You can still get a t-shirt from them with those words on it. How do they get away with this? Lots of money.
It was the Heller decision written by Scalia that changed the traditional interpretation of the 2nd amendment. It gave everyone the right to carry a weapon. Scalia twisted the meaning of the words in their historical context. And he simply ignored the opening about the well-regulated militia thing because that is just so awkward, you know. It is not worth going into Scalia's details. Conservatives who complain about "activism" were pretty activist.
Two years later, this same court followed with Citizens United. Look what that has done to politics. Since then, an attack on the Voting Rights Act. Next time you vote, remember the Supreme Court.
A year before the Sandy Hook massacre, Newton rang with gunfire: automatic weapons and explosions. Residents were shooting late at night. Someone was shooting propane tanks. When the town wanted an ordinance to prevent this or at least control it, guess who fought it. The town council retreated. The NRA is powerful everywhere. After the massacre, Obama tried to do something. The NRA won again. It wasn't worth the effort.
George W Bush passed a bill outlawing lawsuits against gun manufacturers.
Louisiana's children are shot 3 times as much as other children in America. But they have a law protecting guns as a fundamental right.
The day may come when we finally stand up to the NRA, but I don't see it coming very soon.
To put it bluntly, if the NRA wanted a penny from me, they would have to pry it "out of my cold, dead hands." Why do people join up? I don't get it. All I see are gun ranges filled with young children learning about guns. Play baseball with your friends! Michael Moore even spoke of being a member. Couldn't he find a better place to be a member and spend his money? And any cop who is a member cannot be thinking clearly.
I have seen many NRA bumper stickers, but I have never seen a single one that mentioned "a well-regulated militia." The "Founding Fathers" would be appalled at this disgrace. Nothing in that amendment means you can own an assault rifle, an automatic weapon, armor-piercing bullets, or concealed handguns.
Gun regulations have been common throughout our history. There's nothing wrong with them. In fact, they help to preserve order and control unnecessary violence. This book gives plenty of examples.
One particularly shocking line came from Patrick Henry warning about losing slavery. He said, "They'll take your niggers away from you," to the sound of laughter, according to the book. And as always to this day, the fear of African-Americans with guns sent out fear.
In 1871, the NRA was created to train men to shoot safely and accurately. General Ambrose Burnside was the 1st president. It almost collapsed, but the federal government helped it out by giving the members surplus guns. The focus shifted to hunting. It expressed unease with gun laws but never opposed them.
The tumult of the 1960s changed all that. In March 1963, an article in the NRA magazine advertised a rifle. A man named "A. Hidell" bought it through the mail. He was Lee Harvery Oswald. How could someone unseen buy a rifle and ammunition through the mail? Crazy, right? So Congress considered new gun laws. Had NRA supposed support, but somehow gun owners wrote to their reps to bury the bill. Now the gun lobby itself was being investigated.
I can remember a personal incident in my life. I was getting a ride from an Air Force officer when I was in the military. I gave him a hard time because of his NRA sticker on his dashboard. I said he had "blood on his hands." Thinking back, I have absolutely no regrets for saying that. I wish I still had that kind of moxie.
Race entered the picture. "The Armed Citizen" became a column warning about race riots. They profiled vigilantes. Guns & Ammo warned about "Communists and leftists who want to lead us into the one-world welfare state." The South and the Southwest became the most gun addicted parts of the country. As American Heritage magazine said, "having a gun was a white prerogative."
Backlash only made the NRA more vocal. Good senators and representatives lost their jobs for daring to oppose the NRA. Same thing happened in the 90s with the banning of assault rifles.
The incident known as "the revolt in Cincinnati" had to do with the cheap handgun known as the Saturday night special. Many NRA members were upset about their group and wanted changes. They were tired of these political shenanigans. They moved to Colorado from Cincinnati to focus on real gun issues and not opposing all laws. But the gun radicals took revenge. They turned off the air conditioners. Neal Knox said that maybe the assassinations were possibly part of a larger conspiracy to "disarm the people of the free world." I'm not shitting you. He really said that. The change had come. From now on, it was 2nd amendment all the time, no matter what.
Political changes occurred as well. Southern racist Democrats left the party for the Republicans. The GOP that consisted of rich people who cared about the arts, education, and those who were "less fortunate" disappeared.
Evangelical Christian churches underwent a similar change. Those who voted for Jimmy Carter were now voting for Ronald Reagan and no gun laws.
A new coalition was forming. The Chamber of Commerce became more powerful and more Republican. No longer were corporations supporting both parties like they used to. The split had formed. A belief in "tradition" and "service to country" gave way to "freedom" and "mistrust of government." The patriotism that my father taught me seemed to have disappeared.
There was one hiccup on the road: the Brady Bill which Reagan supported. You don't see that support any more in the NRA.
It was Wayne LaPierre who referred to government agents as "jack-booted thugs." Not long after that, Oklahoma City happened. George H. W. Bush resigned from the group to protest its incendiary rhetoric. Good for him!
Let me quote you from Mr. Charlton Heston:
I am not really here to talk about the Second Amendment or the NRA, but the gun issue brings into focus the culture war that's going on.
Rank-and-file Americans wake up every morning, increasingly bewildered and confused at why their views make them lesser citizens. . . . Heaven help the God-fearing, law-abiding, Caucasian, middle class, Protestant, or--even worse--Evangelical Christian, Midwest, or Southern, or--even worse--rural, apparently straight, or--even worse--admittedly heterosexual, gun-owning, or--even worse--NRA-card-carrying, average working stiff, or--even worse--male working stiff, because not only don't you count, you're a downright obstacle to social progress. . . . That's why you don't raise your hand. That's how cultural war works. And you are losing.
And who can forget his crazy fighting words:
. . . I want to say those fighting words for everyone within the sound of my voice to hear and to heed--and especially for you Mr. Gore. FROM MY COLD, DEAD HANDS! As he held up a rifle.
The new incredibly expensive headquarters has a text on the wall of the 2nd amendment. Yeah, right, but guess what part they leave out. You guessed it: "well-regulated militia."
Four times the Supreme Court had held that the 2nd amendment did not give right to individual gun ownership. The NRA had to do something about that. And they did. Articles came out saying how the judges got it wrong so many times.
Those who fought against this tried to be reasonable. But the problem has been best expressed by Robert Frost and his definition of a liberal: "someone so open-minded he will not take his own side in an argument."
It is very important to note this: No respected historian ever defended the NRA point of view. Revisionism came from lawyers and professors. And they were well supported by guess who. Law review articles are NOT subject to peer review like science and history articles are.
By the way, Patrick Henry never said, "the great object is, that every man be armed." Donate $10,000 to the NRA and you are a Patrick Henry Member. I guess they never got the word.
And Jefferson NEVER said "one loves to possess arms" talking about guns. He was talking about letters. That doesn't stop the NRA. You can still get a t-shirt from them with those words on it. How do they get away with this? Lots of money.
It was the Heller decision written by Scalia that changed the traditional interpretation of the 2nd amendment. It gave everyone the right to carry a weapon. Scalia twisted the meaning of the words in their historical context. And he simply ignored the opening about the well-regulated militia thing because that is just so awkward, you know. It is not worth going into Scalia's details. Conservatives who complain about "activism" were pretty activist.
Two years later, this same court followed with Citizens United. Look what that has done to politics. Since then, an attack on the Voting Rights Act. Next time you vote, remember the Supreme Court.
A year before the Sandy Hook massacre, Newton rang with gunfire: automatic weapons and explosions. Residents were shooting late at night. Someone was shooting propane tanks. When the town wanted an ordinance to prevent this or at least control it, guess who fought it. The town council retreated. The NRA is powerful everywhere. After the massacre, Obama tried to do something. The NRA won again. It wasn't worth the effort.
George W Bush passed a bill outlawing lawsuits against gun manufacturers.
Louisiana's children are shot 3 times as much as other children in America. But they have a law protecting guns as a fundamental right.
The day may come when we finally stand up to the NRA, but I don't see it coming very soon.
July 14, 2015
An absolute must read for anyone who has even a passing curiosity about both the gun debate in this country, and how the Supreme Court interprets the Constitution. While it does suffer from a touch of unnecessary snarkiness towards the end, it still does a wonderful job of covering pretty much all the bases in the history of this contentious subject. Of course, those who think they have a God-given right to own an assortment of machine guns are likely to find this book rather disagreeable, but they aren't really known for having a strong grasp on historical facts anyway.
November 9, 2017
Eye opening and essential reading for every American who cares a wit about the gun debate, politics, and history of the constitution. There’s even a true conspiracy detailed in this book (hint: 200 years of precedent undermined by a cabal of like-minded law students, attorneys, government officials and judges—all belonging to or supported by this group).
This isn’t anti-NRA as much as CNN isn’t fake news; this is shedding the light on a topic the right has for decades sought to conflate and confuse. It spotlights the debate, illustrates the players, and untangles the definitions that have long been skewed.
The book doesn’t settle anything however...the cat has long and methodically been let out of the bag. Rather it exposes—quite plainly—the truth on the debate even if the truth may be seen as partisan by those who don’t have a full understanding or have dug in their heels.
This isn’t anti-NRA as much as CNN isn’t fake news; this is shedding the light on a topic the right has for decades sought to conflate and confuse. It spotlights the debate, illustrates the players, and untangles the definitions that have long been skewed.
The book doesn’t settle anything however...the cat has long and methodically been let out of the bag. Rather it exposes—quite plainly—the truth on the debate even if the truth may be seen as partisan by those who don’t have a full understanding or have dug in their heels.
April 4, 2020
Excellent book on the topic. It can be difficult to find work on this topic that is not propaganda or just very biased. I highly recommend.
March 1, 2019
I was so hoping for more analysis, but this is one of those--first this happened and then that happened kind of books. It's interesting, but I sort of already knew the history (though I did learn some things). The Supreme Court has so disfigured the second amendment with its crazy interpretation that it's impossible to go back to first principles and think about what they meant! Well regulated militias, people! Not random dudes owning AR-15s!
June 8, 2022
I just thought I knew what the second amendment is all about, who knew there was so much to know about how this amendment came into place. Waldman does an excellent job of giving the history of our founding fathers first and the state of affairs that lead to the creation of the second amendment. He follows its history through the founding of the NRA and the current laws that apply to carrying concealed weapons and the right to have a gun for protection in the home (this is a fairly recent law).
I live in Texas, which has a rich gun culture, so I hear the defense of the second amendment frequently. What I now know is that most of these people that defend it, most likely, don't know the full history of its conception and current interpretation. It has been utilized to forward political agendas (this idea isn't new).
I found the book enlightening and truly informative.
I’d like to add something here: I read this eight years ago, before the mass shooting at Robb Elementary in Uvalde, TX. It’s worth bringing this book to everyone’s attention as it really is a primer on the complicated politics of gun rights.
I live in Texas, which has a rich gun culture, so I hear the defense of the second amendment frequently. What I now know is that most of these people that defend it, most likely, don't know the full history of its conception and current interpretation. It has been utilized to forward political agendas (this idea isn't new).
I found the book enlightening and truly informative.
I’d like to add something here: I read this eight years ago, before the mass shooting at Robb Elementary in Uvalde, TX. It’s worth bringing this book to everyone’s attention as it really is a primer on the complicated politics of gun rights.
September 4, 2016
When I look at reviews of books like this, I get depressed. Many people evaluate it in terms of preconceived political values. The author clearly has a perspective, but he is pretty much on target about the uncertainty of the meaning of the Second Amendment. For those of you unfamiliar with this part of the Constitution, one of the Bill of Rights, here is what it says: "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." So, what does that mean? Aye, there's the rub.
If you look at the debates of the time that this amendment was being developed and the politics of its approval, there is uncertainty. Some major figures expressly associated it with a militia--assuming, to some, that such bodies would meet regularly and practice their art. Others thought that it included hunting. And so on. The point: This amendment was born in circumstances where there were questions. The statement on militia cannot easily be avoided--but the actors debating the meaning were not of one mind. So, the amendment was founded in something of a fog. You don't have to take the author's word--read the discussion at the time. I have looked at some of that documentation (years ago and without reference to this book) and can say that only a fool would say that the meaning of this amendment is clear.
The book spends most of its time looking at the conflict over the meaning of the amendment and the process by which this passage in the Constitution went from little discussion to the Supreme Court rejecting an individual right to forearms (including non-liberal Chief Justice Warren Burger suggesting that an individual right to firearms was ludicrous). And that is the key for this volume, the evolving understanding of the Second Amendment. Regardless of the author's perspective, he does a fine job in outlining that evolution (albeit he has a critical take on that).
In the end--whatever one's views on the subject--the book provides an analysis of the evolution of a Constitutional doctrine that was murky at its inception.
If you look at the debates of the time that this amendment was being developed and the politics of its approval, there is uncertainty. Some major figures expressly associated it with a militia--assuming, to some, that such bodies would meet regularly and practice their art. Others thought that it included hunting. And so on. The point: This amendment was born in circumstances where there were questions. The statement on militia cannot easily be avoided--but the actors debating the meaning were not of one mind. So, the amendment was founded in something of a fog. You don't have to take the author's word--read the discussion at the time. I have looked at some of that documentation (years ago and without reference to this book) and can say that only a fool would say that the meaning of this amendment is clear.
The book spends most of its time looking at the conflict over the meaning of the amendment and the process by which this passage in the Constitution went from little discussion to the Supreme Court rejecting an individual right to forearms (including non-liberal Chief Justice Warren Burger suggesting that an individual right to firearms was ludicrous). And that is the key for this volume, the evolving understanding of the Second Amendment. Regardless of the author's perspective, he does a fine job in outlining that evolution (albeit he has a critical take on that).
In the end--whatever one's views on the subject--the book provides an analysis of the evolution of a Constitutional doctrine that was murky at its inception.
October 19, 2017
This book is well-written, concise, and helpful. Recommend.
March 7, 2024
The 13 original colonies (which became USA) required each
colony/ state to prepare a militia of men aged 16 through 60.
Each man was required to purchase a musket or borrow
funds to purchase same. Militias were to fight off foreign
invasions or Indian or slave rebellions. Some Revolutionary
war era militia solders were unkempt, undisciplined, or
walked off the job. Geo. Washington headed the Continental
Army and made the militias more professional.
9 0f the 13 states needed to ratify the US Constitution. Much
discussion noted it lacked a bill of rights. Did the executive
branch (POTUS) as written hold too much power? Also was
a state militia to be used in another state? If the US had a
central Army would it become oppressive in treatment of
state militia(s)? Should certain groups IE the Quakers be
exempted from militia service?
For years federal courts and the SCOTUS affirmed, per the
2nd amendment, states exclusively controlled the rights of
state militias (later known as the National Guard) to bear
arms. But in 2008, SCOTUS decided in District of Columbia
VS Heller ruling that an INDIVIDUAL had a right to bear
arms. But it included some odd provisions. Justice Scalia
wrote for the majority "weapons that are 'dangerous +
unusual' can be banned but those 'in common use' can-
not." Huh??? Scalia offered no examples, so this was too
vague. Are military style assault rifles now 'in common use?'
States also have gun laws. At one point Iowa proposed ex-
tending gun rights to legally blind persons! How would
they engage in target practice?
Former Union soldiers started the National Rifle Assoc.
(NRA) in 1871 to train American men how to shoot safely/
accurately. The CEO of the NRA, Mr. La Pierre spoke after
Sandy Hook where 6 & 7 yr old school children + teachers
were murdered by a mentally unstable young man. La
Pierre voiced :"the only thing that stops a bad guy w/
a gun is a good guy with a gun." He proposed an armed
guard in every elementary school!!! Would this CEO react
so casually if his son/ daughter or grandkid was killed at
school or in another public venue?
Technology offers new means to track criminals and make
gun ownership safer. For the most part politicos have
rejected these remedies- microstamping (stamping a serial
# on every semiautomatic bullet), highly taxing certain gun
types, requiring gun manfacturers & owners to buy health &
property claims insurance. Requiring a thumb print trigger
lock to avoid children from accidently shooting someone.
colony/ state to prepare a militia of men aged 16 through 60.
Each man was required to purchase a musket or borrow
funds to purchase same. Militias were to fight off foreign
invasions or Indian or slave rebellions. Some Revolutionary
war era militia solders were unkempt, undisciplined, or
walked off the job. Geo. Washington headed the Continental
Army and made the militias more professional.
9 0f the 13 states needed to ratify the US Constitution. Much
discussion noted it lacked a bill of rights. Did the executive
branch (POTUS) as written hold too much power? Also was
a state militia to be used in another state? If the US had a
central Army would it become oppressive in treatment of
state militia(s)? Should certain groups IE the Quakers be
exempted from militia service?
For years federal courts and the SCOTUS affirmed, per the
2nd amendment, states exclusively controlled the rights of
state militias (later known as the National Guard) to bear
arms. But in 2008, SCOTUS decided in District of Columbia
VS Heller ruling that an INDIVIDUAL had a right to bear
arms. But it included some odd provisions. Justice Scalia
wrote for the majority "weapons that are 'dangerous +
unusual' can be banned but those 'in common use' can-
not." Huh??? Scalia offered no examples, so this was too
vague. Are military style assault rifles now 'in common use?'
States also have gun laws. At one point Iowa proposed ex-
tending gun rights to legally blind persons! How would
they engage in target practice?
Former Union soldiers started the National Rifle Assoc.
(NRA) in 1871 to train American men how to shoot safely/
accurately. The CEO of the NRA, Mr. La Pierre spoke after
Sandy Hook where 6 & 7 yr old school children + teachers
were murdered by a mentally unstable young man. La
Pierre voiced :"the only thing that stops a bad guy w/
a gun is a good guy with a gun." He proposed an armed
guard in every elementary school!!! Would this CEO react
so casually if his son/ daughter or grandkid was killed at
school or in another public venue?
Technology offers new means to track criminals and make
gun ownership safer. For the most part politicos have
rejected these remedies- microstamping (stamping a serial
# on every semiautomatic bullet), highly taxing certain gun
types, requiring gun manfacturers & owners to buy health &
property claims insurance. Requiring a thumb print trigger
lock to avoid children from accidently shooting someone.
July 28, 2014
This book needs to be read and analyzed by everyone who has an opinion regarding the 2nd amendment. Regardless of political party or ideology, this is a book for all Americans. Any debate in our current political arena will need to pass through this book and the implications and objective evidence it provides. The fact that there is little to zero mention of individual gun rights/ownership until the post Civil War period is staggering against those who make the argument that we need to go back to the Founder's and their understanding of the 2nd Amendment.
It also illustrates the transformation of the NRA, from a good ol' boy shooting club, to a political machine. The books also shows dishonest tactics done by the NRA and other conservative politicians and activists when examining primary documents and quoting not only the past but also the constitution itself.
Finally, the author calls upon all Americans to focus on the third aspect to the 2nd amendment: " the right of the people." That is fundamental. We the people must decide how we want to live in the 21st century. Do we want to restrict weapons and understand that according to recent polls, crime is going down and that fewer people actually own the majority of firearms. Another fact is that 61% of the gun owners in this country are white males who have the highest chance of voting Republican? All of these facts need to be taken into account. This topic is vast, and yet Waldman has crafted a book that I hope will inform us all and push research into the political arena. Research which the NRA and other conservative parties do not want conducted.
It also illustrates the transformation of the NRA, from a good ol' boy shooting club, to a political machine. The books also shows dishonest tactics done by the NRA and other conservative politicians and activists when examining primary documents and quoting not only the past but also the constitution itself.
Finally, the author calls upon all Americans to focus on the third aspect to the 2nd amendment: " the right of the people." That is fundamental. We the people must decide how we want to live in the 21st century. Do we want to restrict weapons and understand that according to recent polls, crime is going down and that fewer people actually own the majority of firearms. Another fact is that 61% of the gun owners in this country are white males who have the highest chance of voting Republican? All of these facts need to be taken into account. This topic is vast, and yet Waldman has crafted a book that I hope will inform us all and push research into the political arena. Research which the NRA and other conservative parties do not want conducted.
March 15, 2018
I'm kinda pissed because I thought all the conservative fuckery about guns started way earlier than it actually did. Republicans didn't get their dumbshit ideas about the Constitution passed by the courts until George W. Bush, which is insane to me. I'd assumed that since it had been happening for as long as I'd been politically aware that it had been happening a lot before that, but nope, this second amendment as individual right bullshit is an extremely new trend that mostly gained traction because of Antonin fucking Scalia. For the previous 200 years and especially since the New Deal, individual gun ownership had been a non-issue and gun control upheld by the Supreme Court, but then the NRA gains strength in the 1970s and Reagan comes along to ruin everything by polarizing the shit out of the parties and Clinton tries to help but mostly fucks it up by pandering to the people who hate him and then George W. Bush makes it even fucking worse so now here we are. At least there's the hope that since this trend was completely manufactured by the NRA's team of lawyers, it can be made to slow down and then swing in the opposite direction or even be reversed. But shit, man, I'm so angry that people just stood by and watched all this happen. I just want to be like other civilized countries where I and my family and all other families aren't at risk of being shot in public by some angry white guy. Anyway, fuck Charlton Heston, doublefuck Wayne LaPierre, and quadruplefuck Antonin Scalia.
October 2, 2018
Completely random grab off the library shelf. Interesting, and succinct treatise on the historical roots of the 2nd Amendment, the legal precedents set forth over 200 years and the subsequent upending of those precedents with the Heller v District of Columbia ruling (SCOTUS, 2008). Excellent read for a fascinating topic that will continue to evolve (and frustrate) for generations to come.
July 19, 2023
Absolutely incredible read about the history of American gun possession and its cultural and societal implications. Should be required reading for any progressive looking for a concise explanation of how we got where we are today. This book is a striking testament to how political mobilization and intensity can change public perception and enshrine legitimacy to a previously nonexistent principle (such as an individual right to own a firearm). Any future lawyer should read this book and grapple with the lessons it has for our political process and the American legal system.
June 20, 2014
I was a bit disappointed. I am a lefty and absolutely on the gun control side of the argument and was hoping this would be a even-handed dissection of the 2nd amendment, its creation and subsequent legal life. While there's a lot of great information, there's a whole lotta snark, too, which might be entertaining (to someone like me) but is also wildly counter-productive. (As witnessed by the Amazon reader scores of practically exclusively 5 stars - "The Gun Lobby does not want you to read this book!" or 1 star - "Brainless Liberal attempt at mind control.") I would say that the very end, the sub-chapter titled "In the culture wars, one side is armed" (although the title is fairly inflammatory) and then the Conclusion chapter seemed to be pleading for a reasonable discussion and went a bit lighter on the attitude. A good read, just not what I was looking for.
January 18, 2021
An informative, thoughtful, and very readable look at the 2nd Amendment which is also quite objective. David Eppenstein's review sums it up beautifully. Link below.
https://www.goodreads.com/review/show...
https://www.goodreads.com/review/show...
May 7, 2018
The Second Amendment stands a little bit uneasily on the line between history and advocacy. It has a clear objective, which is to show that the DC v Heller decision in 2008 was, by finding an individual right to own and carry a firearm, inconsistent with both the original intent of the amendment and with its entire history of judicial interpretation. He makes his case well, and I think that he is probably right. But at the same time, the evidence that he gives pretty clearly suggests that the right to own a weapon was a universally acknowledged common-law right at the time of the Founding and, as such (though he does not acknowledge such) would be protected in some form by the 9th Amendment, even if the 2nd Amendment could be completely erased from history.
But I am getting ahead of myself. Let's start from the beginning. Waldman shows, and I have no reason to disagree with him, that it is absolutely inconceivable that the authors of the Bill of Rights were thinking about protecting individual gun ownership when they wrote the 2nd Amendment. This is because nobody thought about protecting individual gun ownership because there was nobody even suggesting that people not be able to own guns. This was a time when most people in the country still hunted for food, and when frontier populations had to fight off Indian raids and armed bandits. Guns were a regular part of life, and nobody really thought they could be otherwise.
The original amendment as Madison wrote it read somewhat differently than our own: 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. (p. 52)
It is a little bit easier to see what the amendment was trying to address in this form. The public debate that it was responding to was between those who wanted to create a standing army to defend the country and those who wanted all defense to be handled by state militias. The theory was that a standing army could become a tool of oppression, so a free people should always be willing to serve in militias to prevent the necessity of a standing army ever being required. Most of the state Constitutions at the time made this explicit with clauses that tied the "right to bear arms" directly to a prohibition of standing or professional military forces.
Nearly all of the debate about the amendment concerned the right NOT to bear arms. In deference to the Quakers and other Protestant sects, Madison incorporated a clause giving some people the right not to serve in the militia. This was extremely unpopular with the "no-standing-army" crowd because it meant fewer militia members and more chance of a standing army being necessary.
In the Senate version, for reasons that were not recorded, the religious scrupulosity clause was removed and the order of the other two was reversed, giving us what we have today.
Ironically, there were regulations on guns at this time, but they were for very different reasons than people have for trying to regulate them today: all militias kept a registry of guns to make sure that people had them and kept them in good working order. Guns had to be good enough to fight with. People could be fined for NOT having a gun or for having one with too little capacity to serve as a military weapon.
The first time that anybody actually tried to restrict gun ownership was during Reconstruction, when many Southern states tried to keep weapons out of the hands of freed slaves. The first time the Supreme Court heard a case on the Second Amendment was U.S. v. Cruikshank (1876), when it ruled that only the US Congress was prohibited by the amendment from infringing on the right to bear arms. States could infringe all they wanted. They didn't even take up the question of whether or not the amendment conveyed a right to possess weapons beyond membership in the militia.
Subsequent Supreme Court decisions, though, did make clear that there was no private ownership right conveyed by the Second Amendment. When Roosevelt championed legislation to ban machine guns and sawed-off shotguns, the court ruled unanimously in United States v. Miller (1934) that "without evidence that a sawed-off shotgun 'at this time has some reasonable relationship to the preservation or efficacy of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." (p. 83)
This view predominated in both political and judicial circles until the late 1970s, when an increasingly radicalized NRA organization first began to characterize the Second Amendment as a Constitutional prohibition on gun control legislation. As lately as 1991, former Supreme Court Justice Warren Burger characterized this position as a "fraud" in a televised interview:
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. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. (p. 84)
Fraud or not, the NRA's revisionist history was extremely effective. It was a part of political discourse long before it was upheld by the Supreme Court, and it became a defining political feature in the 80s and 90s. Finally in 2008, the Supreme Court ruled in D.C. v. Heller that the Second Amendment did convey a right to own a gun for the purpose of self-protection. And though this right did exist, they said, it is subject to regulation, as Justice Scalia wrote in the decision:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. (pp. 125-26)
And this is, roughly, where we find ourselves today. We have a fairly new Constitutional right to own firearms that has been upheld by the Supreme Court, though just about any kind of gun control regulation that is politically possible is allowed by this decision and has been upheld by the courts. Yet we have a chronic misunderstanding of what the Second Amendment meant in its original context or on how it, and gun ownership, has been understood for most of our nation's history. And somehow, in all of this legal-historical-moral morass of claim and counterclaim, we are supposed to figure out how to stop people from walking into schools with guns and killing children.
Overall, The Second Amendment is an enjoyable book that gives a good sense of how the Second Amendment began, what it meant for most of our history, and what it has come to mean today. Saul Cornell's A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America is stronger on the early years, but does not have the extended analysis that Waldman offers. I think that anyone who reads both books together will have a very good understanding of our most controversial amendment.
But I am getting ahead of myself. Let's start from the beginning. Waldman shows, and I have no reason to disagree with him, that it is absolutely inconceivable that the authors of the Bill of Rights were thinking about protecting individual gun ownership when they wrote the 2nd Amendment. This is because nobody thought about protecting individual gun ownership because there was nobody even suggesting that people not be able to own guns. This was a time when most people in the country still hunted for food, and when frontier populations had to fight off Indian raids and armed bandits. Guns were a regular part of life, and nobody really thought they could be otherwise.
The original amendment as Madison wrote it read somewhat differently than our own: 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. (p. 52)
It is a little bit easier to see what the amendment was trying to address in this form. The public debate that it was responding to was between those who wanted to create a standing army to defend the country and those who wanted all defense to be handled by state militias. The theory was that a standing army could become a tool of oppression, so a free people should always be willing to serve in militias to prevent the necessity of a standing army ever being required. Most of the state Constitutions at the time made this explicit with clauses that tied the "right to bear arms" directly to a prohibition of standing or professional military forces.
Nearly all of the debate about the amendment concerned the right NOT to bear arms. In deference to the Quakers and other Protestant sects, Madison incorporated a clause giving some people the right not to serve in the militia. This was extremely unpopular with the "no-standing-army" crowd because it meant fewer militia members and more chance of a standing army being necessary.
In the Senate version, for reasons that were not recorded, the religious scrupulosity clause was removed and the order of the other two was reversed, giving us what we have today.
Ironically, there were regulations on guns at this time, but they were for very different reasons than people have for trying to regulate them today: all militias kept a registry of guns to make sure that people had them and kept them in good working order. Guns had to be good enough to fight with. People could be fined for NOT having a gun or for having one with too little capacity to serve as a military weapon.
The first time that anybody actually tried to restrict gun ownership was during Reconstruction, when many Southern states tried to keep weapons out of the hands of freed slaves. The first time the Supreme Court heard a case on the Second Amendment was U.S. v. Cruikshank (1876), when it ruled that only the US Congress was prohibited by the amendment from infringing on the right to bear arms. States could infringe all they wanted. They didn't even take up the question of whether or not the amendment conveyed a right to possess weapons beyond membership in the militia.
Subsequent Supreme Court decisions, though, did make clear that there was no private ownership right conveyed by the Second Amendment. When Roosevelt championed legislation to ban machine guns and sawed-off shotguns, the court ruled unanimously in United States v. Miller (1934) that "without evidence that a sawed-off shotgun 'at this time has some reasonable relationship to the preservation or efficacy of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." (p. 83)
This view predominated in both political and judicial circles until the late 1970s, when an increasingly radicalized NRA organization first began to characterize the Second Amendment as a Constitutional prohibition on gun control legislation. As lately as 1991, former Supreme Court Justice Warren Burger characterized this position as a "fraud" in a televised interview:
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. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. (p. 84)
Fraud or not, the NRA's revisionist history was extremely effective. It was a part of political discourse long before it was upheld by the Supreme Court, and it became a defining political feature in the 80s and 90s. Finally in 2008, the Supreme Court ruled in D.C. v. Heller that the Second Amendment did convey a right to own a gun for the purpose of self-protection. And though this right did exist, they said, it is subject to regulation, as Justice Scalia wrote in the decision:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. (pp. 125-26)
And this is, roughly, where we find ourselves today. We have a fairly new Constitutional right to own firearms that has been upheld by the Supreme Court, though just about any kind of gun control regulation that is politically possible is allowed by this decision and has been upheld by the courts. Yet we have a chronic misunderstanding of what the Second Amendment meant in its original context or on how it, and gun ownership, has been understood for most of our nation's history. And somehow, in all of this legal-historical-moral morass of claim and counterclaim, we are supposed to figure out how to stop people from walking into schools with guns and killing children.
Overall, The Second Amendment is an enjoyable book that gives a good sense of how the Second Amendment began, what it meant for most of our history, and what it has come to mean today. Saul Cornell's A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America is stronger on the early years, but does not have the extended analysis that Waldman offers. I think that anyone who reads both books together will have a very good understanding of our most controversial amendment.
September 13, 2021
Following up on the book, Ratification, I found it surprising that so little, if any discussion was directed at the debates and ratification of the second amendment itself. The ratification story does summarize the review and ratifying stage of the long list of several amendments that have years later become known and accepted as the Decalogue, Bill of rights, but somehow skipped over mention of the currently tumultuous second amendment!
This book covers the second amendment historical journey dating from English law on the rights to bear arms, through the original colonial dependency on a local militia for its common defense and on through the constitutional ratification debates and subsequent debates on the Decalogue of proposed and ratified amendments. This book then carries us through American legal history focused on the changing attention and influence the second amendment has taken on and a thorough explanation of our current Supreme Court and civil social divide of the proper interpretation and application of this second amendment right.
I think the book provides a thorough and unbiased portrayal of that story that should be read by all. Advocates of gun rights and gun control alike. If not only for a better understanding of our constitution and its ratification process itself, this book gives a great summary overview of that history in its first couple chapters!
My take away position:
The second amendment was primarily put in place to assuage the concerns of many people of many states that an all powerful central government would both avoid the necessity of forming a large, expensive standing army, as well as leave the states with a comforting degree of autonomy to defend itself against immediate local threats, whether from nearby Indian uprisings, or for the southern states, still in proximity to Florida’s Spanish threat. There was low confidence in their experience as a confederation of independent states that other states’ militias would actually come to support their local needs nor confidence that the central government would itself effectively fund and deliver off the promise of local security.
It seems clear to me that the second amendment was intended more to protect the state ‘s rights rather than an individual’s rights.
This books doors a good job outlining the argument that the structure and language of the second amendment differs substantially in form compared to all the other amendments. It discussed how clearly in reviewing other uses of the phrase “to keep and bear arms” at that time in British and early American history was always used in the context of being at a time of war and that there was no debate or discussion on record that beating arms was for any other purpose such as hunting or self defense.
My second position, not directly mentioned in this book but inferred in its discussion of constitutional originalism, the only originalism we need is Thomas Jefferson’s quip that the world is for the living and not the dead and that the constitution ought to be rewritten every generation to keep up with the expected changing values of the people. The result that this constitution has become a sacred document, practically enshrined in stone would have Jefferson rolling in his grave.
This book covers the second amendment historical journey dating from English law on the rights to bear arms, through the original colonial dependency on a local militia for its common defense and on through the constitutional ratification debates and subsequent debates on the Decalogue of proposed and ratified amendments. This book then carries us through American legal history focused on the changing attention and influence the second amendment has taken on and a thorough explanation of our current Supreme Court and civil social divide of the proper interpretation and application of this second amendment right.
I think the book provides a thorough and unbiased portrayal of that story that should be read by all. Advocates of gun rights and gun control alike. If not only for a better understanding of our constitution and its ratification process itself, this book gives a great summary overview of that history in its first couple chapters!
My take away position:
The second amendment was primarily put in place to assuage the concerns of many people of many states that an all powerful central government would both avoid the necessity of forming a large, expensive standing army, as well as leave the states with a comforting degree of autonomy to defend itself against immediate local threats, whether from nearby Indian uprisings, or for the southern states, still in proximity to Florida’s Spanish threat. There was low confidence in their experience as a confederation of independent states that other states’ militias would actually come to support their local needs nor confidence that the central government would itself effectively fund and deliver off the promise of local security.
It seems clear to me that the second amendment was intended more to protect the state ‘s rights rather than an individual’s rights.
This books doors a good job outlining the argument that the structure and language of the second amendment differs substantially in form compared to all the other amendments. It discussed how clearly in reviewing other uses of the phrase “to keep and bear arms” at that time in British and early American history was always used in the context of being at a time of war and that there was no debate or discussion on record that beating arms was for any other purpose such as hunting or self defense.
My second position, not directly mentioned in this book but inferred in its discussion of constitutional originalism, the only originalism we need is Thomas Jefferson’s quip that the world is for the living and not the dead and that the constitution ought to be rewritten every generation to keep up with the expected changing values of the people. The result that this constitution has become a sacred document, practically enshrined in stone would have Jefferson rolling in his grave.
February 26, 2016
Although this book touches on gun control, it is far more focused on the history of the 2nd amendment, and how it has been interpreted over the time. There was a tremendous amount of information in this relatively short book that I didn't know, for example, the fact that the NRA was once in favor of reasonable gun control laws, but that it was taken over, in a pretty blatantly hostile manner, by people who held hard-line views against any sort of regulation at all, and who complete changed the character of the organization. It was also interesting to learn how the rhetoric around the language of the amendment has been manipulated, and the claims around original intent have been distorted to where they are today. Like most issues in politics, the truth is far more complicated than what is generally presented by the media, and by most participants in arguments.
May 13, 2017
Michael Waldman’s book was an absorbing read, I can’t say enough good things. I have to admit I am a moderate where gun legislation is concerned. I don’t want to take away the privilege of ownership but I want some perimeters in place. How do we balance individual rights with public safety? The true meaning of the second amendment by the framers of the constitution has long been under debate. Grounds for defense of that argument have come from numerous places. It is one very powerful but single sentence that has been dissected for not just historical context, but grammar, syntax, punctuation, etc. - particularly when these constructs weren’t really in effect. The wording was compared to other writing from that era, and vocabulary was analyzed against the percentage of use and meaning in other situations.
In terms of historical context, one has to look to the beginning - at the struggle between the factions, at the time of the American Revolution and the years immediately afterwards. Some supported local militias while others believed in the need for a standing national army. The Whiskey Rebellion is a good example of a conflict between states’ interests as opposed to the larger whole. And of course it was a matter of whose side you were on! It was an entirely different matter during the Civil War as it began with the battle for Fort Sumter. Washingtonians came to watch believing their local militia had this one in the bag, and were instead overrun much to their shock and horror. Then the need for a standing army was no longer questioned. After the Civil War it became a matter of racial issues and more of individual defense - on ALL sides. When the South tried to impose the Black Codes, a general ruled that 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.” We’ve obviously already moved away from that legally.
The second portion of the book examines what path the Supreme Court has taken over the years and what events or politics have influenced their rulings and interpretations. The pains of racial integration and violent resistance warranted change. Gangster culture during Prohibition and the Kennedy and King assassinations each propelled things further. Reagan’s attempted assassination was another pivotal point. The NRA has drastically changed their view since its inception and consequently membership has also changed.
Waldman does a very thorough job of analyzing the court. The landmark decision was District of Columbia vs. Heller. A 5-4 decision fell along party lines as all five proponents were Republican. Justice Scalia wrote for the majority and Stevens wrote for the dissenters, but both sides claimed their interpretations were based on originalism. Progressives and conservatives alike criticized Scalia for judicial overreach in his the disregard for precedence. The McDonald vs. Chicago case took the ruling a step further. The very faction who would usually argue against big government regulation was all in favor of it in striking down DC’s local gun laws and then extending that right to states. Laws that were intended to protect their citizenry from their unique crime problems. Waldman takes a brief foray into other landmark right wing decisions of the Supreme Court, including striking down the ban on corporate campaign donations and the gutting of parts of the Voter’s Rights Act.
The third portion addresses the latest mass shootings, from the Columbine to Sandy Hook and the Orlando night club shootings. While these outraged the public and sentiments are growing towards reviving some controls, the NRA has too many political figures in their back pocket. “If it seems as though gun rights adherents and gun control backers occupy different mental universes, seeing the same facts in entirely different ways, that is largely true… One compelling study...suggests the divide goes even deeper than political ideology, religion, region, or race. What matters is what people fear: are citizen more afraid of gun violence or of being exposed to a predator without the ability to protect themselves? The way people perceive that risk flows from basic worldview… Whether one is hierarchical or egalitarian, individualistic or solidaristic… matters more than whether one is Republican or Democrat, conservative or liberal.”
Waldman has an evident bias but he takes a rational approach, presenting the pros and cons in his examination. His conclusion is articulate. This issue makes it all the more obvious that the Supreme Court is far from being above partisanship, which has become all the more pronounced this year.
Supplementary links if you are interested:
NPR has a list of gun laws over the years: http://www.npr.org/templates/story/st...
The American Bar Association has a PDF listing of podcasts, print/online articles, and television interviews that was quite interesting supplement to the book. I enjoyed the NPR interview in particular.
http://www.americanbar.org/content/da...
In terms of historical context, one has to look to the beginning - at the struggle between the factions, at the time of the American Revolution and the years immediately afterwards. Some supported local militias while others believed in the need for a standing national army. The Whiskey Rebellion is a good example of a conflict between states’ interests as opposed to the larger whole. And of course it was a matter of whose side you were on! It was an entirely different matter during the Civil War as it began with the battle for Fort Sumter. Washingtonians came to watch believing their local militia had this one in the bag, and were instead overrun much to their shock and horror. Then the need for a standing army was no longer questioned. After the Civil War it became a matter of racial issues and more of individual defense - on ALL sides. When the South tried to impose the Black Codes, a general ruled that 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.” We’ve obviously already moved away from that legally.
The second portion of the book examines what path the Supreme Court has taken over the years and what events or politics have influenced their rulings and interpretations. The pains of racial integration and violent resistance warranted change. Gangster culture during Prohibition and the Kennedy and King assassinations each propelled things further. Reagan’s attempted assassination was another pivotal point. The NRA has drastically changed their view since its inception and consequently membership has also changed.
Waldman does a very thorough job of analyzing the court. The landmark decision was District of Columbia vs. Heller. A 5-4 decision fell along party lines as all five proponents were Republican. Justice Scalia wrote for the majority and Stevens wrote for the dissenters, but both sides claimed their interpretations were based on originalism. Progressives and conservatives alike criticized Scalia for judicial overreach in his the disregard for precedence. The McDonald vs. Chicago case took the ruling a step further. The very faction who would usually argue against big government regulation was all in favor of it in striking down DC’s local gun laws and then extending that right to states. Laws that were intended to protect their citizenry from their unique crime problems. Waldman takes a brief foray into other landmark right wing decisions of the Supreme Court, including striking down the ban on corporate campaign donations and the gutting of parts of the Voter’s Rights Act.
The third portion addresses the latest mass shootings, from the Columbine to Sandy Hook and the Orlando night club shootings. While these outraged the public and sentiments are growing towards reviving some controls, the NRA has too many political figures in their back pocket. “If it seems as though gun rights adherents and gun control backers occupy different mental universes, seeing the same facts in entirely different ways, that is largely true… One compelling study...suggests the divide goes even deeper than political ideology, religion, region, or race. What matters is what people fear: are citizen more afraid of gun violence or of being exposed to a predator without the ability to protect themselves? The way people perceive that risk flows from basic worldview… Whether one is hierarchical or egalitarian, individualistic or solidaristic… matters more than whether one is Republican or Democrat, conservative or liberal.”
Waldman has an evident bias but he takes a rational approach, presenting the pros and cons in his examination. His conclusion is articulate. This issue makes it all the more obvious that the Supreme Court is far from being above partisanship, which has become all the more pronounced this year.
Supplementary links if you are interested:
NPR has a list of gun laws over the years: http://www.npr.org/templates/story/st...
The American Bar Association has a PDF listing of podcasts, print/online articles, and television interviews that was quite interesting supplement to the book. I enjoyed the NPR interview in particular.
http://www.americanbar.org/content/da...
March 4, 2021
The author traces events leading to the Heller Supreme Court decisions and some results of that decision. The book is aimed at readers that share the author's liberal view point.
The first half of the book focuses on history related to the Second Amendment. The author attempts to show that historically there was no expectation of an individual right to possess firearms. He believes the firearm right was reserved to state militias. The confusing language about militias in the Second Amendment is a large part of why I picked up this book.
I did not find the author's historical survey persuasive for several reasons. Most of his quotes in this portion of the book are very short, making it feel like the author cherry picked phrases he liked. Very often quotes are not used at all, instead the author paraphrases or summarizes the original sources. In topics with this much contention, it would have been much more persuasive to include full long quotes and then dissect what they mean. A few times he accuses gun rights supporters of misquoting people, but fails to provide the full quote himself. Also, the author often cites a few situations and then makes broad statements about all or most of the USA based on that. The author is able to show that it is not clear that all of the founders of the USA believed in a individual right to possess guns, but falls short of his goal of proving such an assumption was not held by any.
The second half of the book concentrates of how gun rights supporters mounted a decades long campaign to get a favorable Supreme Court decision. In this sections the author provides the kinds of long quotes I find much more convincing. I found it worthwhile to read the history covered in this section. Even though the author does not support the goals of this group, he makes several insightful comments that these were the same tactics used to get favorable court decisions on civil rights, contraceptives, abortions, gay marriage, etc. The author only supports the liberal set of these rulings, however, it seems unrealistic for one 'side' to use to Supreme Court to get their way while expecting the other 'side' to not do the same.
I was also interested in the idea that changes wrought by courts are not as effective as changes made by legislators. Legislation requires compromises and coalition building that a judicial decision does not. A legislative process could have left the country feeling less divided on the issues. It is also harder to change legislation, leaving people more secure in what the government's stance on these topics would be. In fact the only advantage of court decisions, in the author's opinion, is the court can move faster than the legislature. The author also notes that Barrack Obama and Ruth Bader Ginsburg have at some times expressed opinions that civil rights and abortion, respectively, would have been better changes to make via legislation. I do not know how the country could move to settling these contentious issue via legislation, rather than courts, but wish it could be done.
I feel very apprehensive about the idea that Justices can conjure forth new rights from the "Penumbra" of the constitution. To me that sounds like anything five justices can agree on is now part of the constitution. The concept of Originalism seems like a good alternative. However, as the author points out, the original intent is not always clear, it which case the debates are in fact about what we currently want and finding quotes that seem to support that position.
Parts of this book reminded me of The Nine: Inside the Secret World of the Supreme Court, which focus on the Supreme Court more broadly and which I recommend as a more worthwhile read.
The first half of the book focuses on history related to the Second Amendment. The author attempts to show that historically there was no expectation of an individual right to possess firearms. He believes the firearm right was reserved to state militias. The confusing language about militias in the Second Amendment is a large part of why I picked up this book.
I did not find the author's historical survey persuasive for several reasons. Most of his quotes in this portion of the book are very short, making it feel like the author cherry picked phrases he liked. Very often quotes are not used at all, instead the author paraphrases or summarizes the original sources. In topics with this much contention, it would have been much more persuasive to include full long quotes and then dissect what they mean. A few times he accuses gun rights supporters of misquoting people, but fails to provide the full quote himself. Also, the author often cites a few situations and then makes broad statements about all or most of the USA based on that. The author is able to show that it is not clear that all of the founders of the USA believed in a individual right to possess guns, but falls short of his goal of proving such an assumption was not held by any.
The second half of the book concentrates of how gun rights supporters mounted a decades long campaign to get a favorable Supreme Court decision. In this sections the author provides the kinds of long quotes I find much more convincing. I found it worthwhile to read the history covered in this section. Even though the author does not support the goals of this group, he makes several insightful comments that these were the same tactics used to get favorable court decisions on civil rights, contraceptives, abortions, gay marriage, etc. The author only supports the liberal set of these rulings, however, it seems unrealistic for one 'side' to use to Supreme Court to get their way while expecting the other 'side' to not do the same.
I was also interested in the idea that changes wrought by courts are not as effective as changes made by legislators. Legislation requires compromises and coalition building that a judicial decision does not. A legislative process could have left the country feeling less divided on the issues. It is also harder to change legislation, leaving people more secure in what the government's stance on these topics would be. In fact the only advantage of court decisions, in the author's opinion, is the court can move faster than the legislature. The author also notes that Barrack Obama and Ruth Bader Ginsburg have at some times expressed opinions that civil rights and abortion, respectively, would have been better changes to make via legislation. I do not know how the country could move to settling these contentious issue via legislation, rather than courts, but wish it could be done.
I feel very apprehensive about the idea that Justices can conjure forth new rights from the "Penumbra" of the constitution. To me that sounds like anything five justices can agree on is now part of the constitution. The concept of Originalism seems like a good alternative. However, as the author points out, the original intent is not always clear, it which case the debates are in fact about what we currently want and finding quotes that seem to support that position.
Parts of this book reminded me of The Nine: Inside the Secret World of the Supreme Court, which focus on the Supreme Court more broadly and which I recommend as a more worthwhile read.
August 30, 2021
Michael Waldman’s fascinating and very readable The Second Amendment: A Biography is part history and part contemporary debate about guns in America. In Part One of Waldman’s three-part narrative, he takes us back to the “tumultuous years of the American Revolution and its aftermath” and the creation of the Constitution. Importantly, Waldman reports that “there is not a single word about an individual right to a gun for self-defense in the notes of the Constitutional Convention.” Nor were there any substantial references in the ratification records of states’ debates, and none as the House of Representatives marked up the Second Amendment.
Part Two tells the story of how that changed after two hundred years of precedent. This incorporates the rise of the National Rifle Association and its efforts “to enshrine gun rights in the Constitution.” The landmark 2008 case of District of Columbia v. Heller was the pivotal turning point. In a 5-4 vote, the US Supreme Court ruled that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. Justice Antonin Scalia wrote the majority opinion.
In Part Three, Waldman recounts the impact of that landmark Supreme Court decision, how it changed the starting point for all future debates, and examines how the debate about individual gun ownership rights continues today.
The Second Amendment: A Biography is filled with well-researched references reflecting all sides of the gun ownership argument. And though “originalism”—that is, a judicial interpretation of the US Constitution that aims to follow how it would have been understood at the time it was written—bubbles up in popularity, Waldman appears to make overwhelming arguments that that is not what the Framers of the Constitution intended.
He does this conclusively in his closing chapter, “The Right of the People,” suggesting that three lessons emerge from examining the history of the Second Amendment, our country, and how we read and live our Constitution. The first lesson is that “originalism is untenable.” Rather than vindicating the theory, as Scalia claims, Waldman says “it displays the limitations of trying to answer today’s questions by consulting oracles of the past.”
The second lesson is the importance of judicial restraint. Among democracies, America and Americans are renowned for a longstanding, almost insatiable appetite for having courts decide political and policy questions. Waldman even quotes Alexis de Tocqueville in 1835; “There is almost no political question in the United States that does not sooner or later resolve itself into a judicial question." But can there be any doubt that the Supreme Court is itself a political institution, when justices are appointed and voted for by partisan politicians?
The third lesson, says Waldman, is that “how the Supreme Court sees the Constitution is ultimately up to us.” It is vital, he says, for us to “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’.”
Waldman’s fluent prose makes The Second Amendment: A Biography a fast read, despite all the thorny issues surrounding gun control. And rather than ponder what the Framers of the Constitution were thinking when writing the Second Amendment, this reader is more inclined to wonder how much scornful and pitying laughter the Framers are directing at us for repeatedly failing to repeal this amendment in the face of tens of thousands of gun violence deaths every year, including hundreds of deaths of innocent children. Indeed, is it possible that the Framers are helplessly wringing their hands that the Constitution has ended up under the careless stewardship of 21st-century politicians and judicial lawmakers, whose catastrophic lack of imagination in curbing the egregious and appalling slaughter caused by gun violence is matched only by their callous comfort in witnessing the murderous outcome of that violence?
Part Two tells the story of how that changed after two hundred years of precedent. This incorporates the rise of the National Rifle Association and its efforts “to enshrine gun rights in the Constitution.” The landmark 2008 case of District of Columbia v. Heller was the pivotal turning point. In a 5-4 vote, the US Supreme Court ruled that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. Justice Antonin Scalia wrote the majority opinion.
In Part Three, Waldman recounts the impact of that landmark Supreme Court decision, how it changed the starting point for all future debates, and examines how the debate about individual gun ownership rights continues today.
The Second Amendment: A Biography is filled with well-researched references reflecting all sides of the gun ownership argument. And though “originalism”—that is, a judicial interpretation of the US Constitution that aims to follow how it would have been understood at the time it was written—bubbles up in popularity, Waldman appears to make overwhelming arguments that that is not what the Framers of the Constitution intended.
He does this conclusively in his closing chapter, “The Right of the People,” suggesting that three lessons emerge from examining the history of the Second Amendment, our country, and how we read and live our Constitution. The first lesson is that “originalism is untenable.” Rather than vindicating the theory, as Scalia claims, Waldman says “it displays the limitations of trying to answer today’s questions by consulting oracles of the past.”
The second lesson is the importance of judicial restraint. Among democracies, America and Americans are renowned for a longstanding, almost insatiable appetite for having courts decide political and policy questions. Waldman even quotes Alexis de Tocqueville in 1835; “There is almost no political question in the United States that does not sooner or later resolve itself into a judicial question." But can there be any doubt that the Supreme Court is itself a political institution, when justices are appointed and voted for by partisan politicians?
The third lesson, says Waldman, is that “how the Supreme Court sees the Constitution is ultimately up to us.” It is vital, he says, for us to “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’.”
Waldman’s fluent prose makes The Second Amendment: A Biography a fast read, despite all the thorny issues surrounding gun control. And rather than ponder what the Framers of the Constitution were thinking when writing the Second Amendment, this reader is more inclined to wonder how much scornful and pitying laughter the Framers are directing at us for repeatedly failing to repeal this amendment in the face of tens of thousands of gun violence deaths every year, including hundreds of deaths of innocent children. Indeed, is it possible that the Framers are helplessly wringing their hands that the Constitution has ended up under the careless stewardship of 21st-century politicians and judicial lawmakers, whose catastrophic lack of imagination in curbing the egregious and appalling slaughter caused by gun violence is matched only by their callous comfort in witnessing the murderous outcome of that violence?
November 8, 2017
The first part of this book is far stronger than the second part. The first part goes through the history of the 2nd amendment from the beginning in the late 18th century. The author is clear that the Framers weren't answering the question we have today about individual gun rights but were rather trying to protect a bygone republican institution, the citizen militia, which does not exist today.
I stopped reading in the second half because the author ranges through too many topics in American history without really discussing things in depth but rather just opines all too briefly. For example, the author does not agree with constitutional originalism a la Scalia and levels some withering criticism of Scalia saying that he was not consistent in his originalism but used that as a mask to legislate from the bench right wing policy. So far so good. What guiding philosophy of constitutional interpretation does the author favor then? The author mentions Justice Brennan's view that it is not about the original intent of the Constitution but the principles behind it that should be upheld and translated into the modern age. What does that mean? The Court has created new rights in a liberal direction that the author approves of but when it does it for a conservative direction why is that all of a sudden bad? I get the author's criticism of Scalia being internally inconsistent. I understand that and even agree with that assessment. But how about the author's view of Constitutional interpretation? We just get liberal bromides about an "evolving, progressing" society but not much else. I guess the Constitutional principles that matter are the ones that lend themselves to liberal political outcomes.
The author does get it right in the beginning of the book when he states that there is an "individual right to keep and bear arms....in order to serve in the militia." Translated to the modern day I think the amendment is about freedom of the people. Back then, they were concerned about oppressive central governments with standing armies. A bulwark against that was the militia made up of a free citizenry. While there is no individual right to keep and bear arms per se, I could see that the direction of the amendment was towards empowering the people; empowering locals to defend themselves. Back in the day it existed in a civic republican militia that has no analogue today but today as an atomized society it can be seen to exist in individuals. Each man his own militia so to speak. Its either that or the amendment has no meaning for the modern day.
I stopped reading in the second half because the author ranges through too many topics in American history without really discussing things in depth but rather just opines all too briefly. For example, the author does not agree with constitutional originalism a la Scalia and levels some withering criticism of Scalia saying that he was not consistent in his originalism but used that as a mask to legislate from the bench right wing policy. So far so good. What guiding philosophy of constitutional interpretation does the author favor then? The author mentions Justice Brennan's view that it is not about the original intent of the Constitution but the principles behind it that should be upheld and translated into the modern age. What does that mean? The Court has created new rights in a liberal direction that the author approves of but when it does it for a conservative direction why is that all of a sudden bad? I get the author's criticism of Scalia being internally inconsistent. I understand that and even agree with that assessment. But how about the author's view of Constitutional interpretation? We just get liberal bromides about an "evolving, progressing" society but not much else. I guess the Constitutional principles that matter are the ones that lend themselves to liberal political outcomes.
The author does get it right in the beginning of the book when he states that there is an "individual right to keep and bear arms....in order to serve in the militia." Translated to the modern day I think the amendment is about freedom of the people. Back then, they were concerned about oppressive central governments with standing armies. A bulwark against that was the militia made up of a free citizenry. While there is no individual right to keep and bear arms per se, I could see that the direction of the amendment was towards empowering the people; empowering locals to defend themselves. Back in the day it existed in a civic republican militia that has no analogue today but today as an atomized society it can be seen to exist in individuals. Each man his own militia so to speak. Its either that or the amendment has no meaning for the modern day.
March 21, 2015
Illuminating and a bit depressing.
It was illuminating to learn the legislative history of the 2nd Amendment during the drafting, debates, and passage of the Bill of Rights. The NRA, Tea Party, et al, want us to believe that the first half of the amendment--"A well-regulated militia, being necessary to the security of a free state . . ."--doesn't matter. (Indeed, Waldman tells us that an edited, abbreviated version of the amendment is emblazoned on the lobby wall of NRA HQs: ". . . the right of the people to keep and bear arms shall not be infringed.")
Today's conservatives, including Justice Scalia and the majority in the DC vs. Heller decision, have decided that Americans have an individual right to own guns, on the grounds that this is what the framers of the Constitution intended.
History, Waldman demonstrates, pretty much says otherwise. The Bill of Rights was drafted in the political and contentious effort to get the Constitution ratified in the first place. Remember that the constitutional convention was tasked to "fix" the Articles of Confederation, and didn't actually have a mandate to draft a whole new constitution. And the convention worked in secret, so that when the actual constitution was published, creating an effective national government, it caused an uproar. The Bill of Rights--which most of the framers thought was unnecessary--was a compromise to win the approval of the groups who hated and feared the idea of a strong central government--that is, who opposed federalism.
The 2nd amendment was a football of sorts, undergoing numerous revisions, and it reflected its time in a way that's hard even to imagine today. Our world is so different, and the original intent of the 2nd amendment is meaningless today. Here's why.
One of the greatest fears of the Anti-Federalists was Congress's power to create an army, and the 2nd amendment was drafted to calm that fear, and to clarify that Congress didn't intend to upset the status quo--which meant state militias. Americans 200 years ago lived in a much more provincial and commutarian age in which every white man had an obligation to the state (a phrase that today's conservatives would revile) to "muster" regularly for the militia. The militia, composed not of professional soldiers but of every Tom, Dick, and Harry in the state, was the colonial's idea of police power and community defense, and citizens were REQUIRED to buy their own weapons and to maintain them in support of the state. Think posse.
In truth, musters, when they happened at all, were often little more than drinking parties, and there was little enforcement in regard to guys who just didn't show up. But there was much patriotic sentiment in favor of the militia idea: citizen soldiers democratically defending the homeland and resisting tyranny. The anti-federalists balked when they realized that under the new constitution Congress could create a "standing army," which sounded tyrannical to many people. The 2nd amendment was a tactic to address that particular objection to the constitution--it ensured that the citizens of the states had the means to resist a tyrannical federal army. "After all, the Framers added the Second Amendment to the Constitution not because they solemnly believed it necessary, but as a 'tub to the whale'--a concession to popular discontent." p. 174.
Waldman's key point is that nowhere in the vigorous back-and-forth regarding the drafting of 2nd amendment did anyone suggest that there was a sacrosanct INDIVIDUAL right to carry guns anywhere one pleased for real or imagined self defense. It just didn't come up. It wasn't the issue that was being challenged or debated.
In fact, there was much local gun regulation in the colonial era and throughout the 19th century--people didn't carry guns into stores, or to church, or to the post office. There were no handguns at the time of the Framers, so "bearing arms" was always visible and threatening; regular folks just didn't carry their muskets with them as they went about their daily business. If you lived on the frontier, you probably did need a rifle to protect your family from Indians or wildlife or other threats, and you probably did hunt for food. Nowhere in the constitutional debate was this concept ever threatened, or even thought about. It just didn't come up, because the debates that gave birth to the Bill of Rights weren't about frontiersmen battling natives. The debates happened in New York and Philadelphia and Boston, where citizens may never have seen Indians. The debate was about the maintenance of a "well regulated militia," and it concerned a sizable portion of the non-frontier population who hated and feared the idea of a national army.
That world doesn't exist anymore. We don't muster for our states--just imagine!--and patriotic (non-crackpot) Americans don't fear the US Army as a instrument of internal tyranny. We are much more likely to fear our fellow citizens who have handguns concealed in their jacket pockets. The very concept behind the 2nd amendment--that the white men in a state, as an armed and well-regulated militia, could and should resist the US Army--was essentially put to bed by the Civil War. In a sense, the 2nd Amendment was written for the likes of Jefferson Davis and Robert E. Lee.
". . . the world of the Second Amendment is unrecognizable: a world where every white American man served in the military for his entire adult life, where those citizen soldiers bought their own military weapons and stored them at home, and where the idea of a United States Army would be enough to send patriots to grab their muskets. When the militias evaporated, so did the original meaning of the Second Amendment." Waldman, p. 171.
"Today, we rely on professionalized police departments to protect us from crime and unrest, and a United States Army to protect us from overseas threats--all institutions unknown to the Founders. The idea that we should arm the population so they could mount an insurrection against the government, just in case, seems absurd." p. 172.
So that's the illuminating part. I didn't know this history, at least in this detail. The depressing aspect of this book is the realization of how much we have allowed our law and public policy to be shaped by the NRA, peddling "half-remembered history or sentimentalized notions of personal empowerment." Waldman concludes by reminding progressive Americans to adopt the tactics of the NRA to shape public opinion in the opposite direction, and he's not being cynical. His ultimate point is that our Constitutional rights are shaped by today's needs and today's public opinion, not by some misguided notion of originalism. In some ways we can see ourselves in the Americans of 1787, but we shouldn't count on it. Our worlds are too different.
It was illuminating to learn the legislative history of the 2nd Amendment during the drafting, debates, and passage of the Bill of Rights. The NRA, Tea Party, et al, want us to believe that the first half of the amendment--"A well-regulated militia, being necessary to the security of a free state . . ."--doesn't matter. (Indeed, Waldman tells us that an edited, abbreviated version of the amendment is emblazoned on the lobby wall of NRA HQs: ". . . the right of the people to keep and bear arms shall not be infringed.")
Today's conservatives, including Justice Scalia and the majority in the DC vs. Heller decision, have decided that Americans have an individual right to own guns, on the grounds that this is what the framers of the Constitution intended.
History, Waldman demonstrates, pretty much says otherwise. The Bill of Rights was drafted in the political and contentious effort to get the Constitution ratified in the first place. Remember that the constitutional convention was tasked to "fix" the Articles of Confederation, and didn't actually have a mandate to draft a whole new constitution. And the convention worked in secret, so that when the actual constitution was published, creating an effective national government, it caused an uproar. The Bill of Rights--which most of the framers thought was unnecessary--was a compromise to win the approval of the groups who hated and feared the idea of a strong central government--that is, who opposed federalism.
The 2nd amendment was a football of sorts, undergoing numerous revisions, and it reflected its time in a way that's hard even to imagine today. Our world is so different, and the original intent of the 2nd amendment is meaningless today. Here's why.
One of the greatest fears of the Anti-Federalists was Congress's power to create an army, and the 2nd amendment was drafted to calm that fear, and to clarify that Congress didn't intend to upset the status quo--which meant state militias. Americans 200 years ago lived in a much more provincial and commutarian age in which every white man had an obligation to the state (a phrase that today's conservatives would revile) to "muster" regularly for the militia. The militia, composed not of professional soldiers but of every Tom, Dick, and Harry in the state, was the colonial's idea of police power and community defense, and citizens were REQUIRED to buy their own weapons and to maintain them in support of the state. Think posse.
In truth, musters, when they happened at all, were often little more than drinking parties, and there was little enforcement in regard to guys who just didn't show up. But there was much patriotic sentiment in favor of the militia idea: citizen soldiers democratically defending the homeland and resisting tyranny. The anti-federalists balked when they realized that under the new constitution Congress could create a "standing army," which sounded tyrannical to many people. The 2nd amendment was a tactic to address that particular objection to the constitution--it ensured that the citizens of the states had the means to resist a tyrannical federal army. "After all, the Framers added the Second Amendment to the Constitution not because they solemnly believed it necessary, but as a 'tub to the whale'--a concession to popular discontent." p. 174.
Waldman's key point is that nowhere in the vigorous back-and-forth regarding the drafting of 2nd amendment did anyone suggest that there was a sacrosanct INDIVIDUAL right to carry guns anywhere one pleased for real or imagined self defense. It just didn't come up. It wasn't the issue that was being challenged or debated.
In fact, there was much local gun regulation in the colonial era and throughout the 19th century--people didn't carry guns into stores, or to church, or to the post office. There were no handguns at the time of the Framers, so "bearing arms" was always visible and threatening; regular folks just didn't carry their muskets with them as they went about their daily business. If you lived on the frontier, you probably did need a rifle to protect your family from Indians or wildlife or other threats, and you probably did hunt for food. Nowhere in the constitutional debate was this concept ever threatened, or even thought about. It just didn't come up, because the debates that gave birth to the Bill of Rights weren't about frontiersmen battling natives. The debates happened in New York and Philadelphia and Boston, where citizens may never have seen Indians. The debate was about the maintenance of a "well regulated militia," and it concerned a sizable portion of the non-frontier population who hated and feared the idea of a national army.
That world doesn't exist anymore. We don't muster for our states--just imagine!--and patriotic (non-crackpot) Americans don't fear the US Army as a instrument of internal tyranny. We are much more likely to fear our fellow citizens who have handguns concealed in their jacket pockets. The very concept behind the 2nd amendment--that the white men in a state, as an armed and well-regulated militia, could and should resist the US Army--was essentially put to bed by the Civil War. In a sense, the 2nd Amendment was written for the likes of Jefferson Davis and Robert E. Lee.
". . . the world of the Second Amendment is unrecognizable: a world where every white American man served in the military for his entire adult life, where those citizen soldiers bought their own military weapons and stored them at home, and where the idea of a United States Army would be enough to send patriots to grab their muskets. When the militias evaporated, so did the original meaning of the Second Amendment." Waldman, p. 171.
"Today, we rely on professionalized police departments to protect us from crime and unrest, and a United States Army to protect us from overseas threats--all institutions unknown to the Founders. The idea that we should arm the population so they could mount an insurrection against the government, just in case, seems absurd." p. 172.
So that's the illuminating part. I didn't know this history, at least in this detail. The depressing aspect of this book is the realization of how much we have allowed our law and public policy to be shaped by the NRA, peddling "half-remembered history or sentimentalized notions of personal empowerment." Waldman concludes by reminding progressive Americans to adopt the tactics of the NRA to shape public opinion in the opposite direction, and he's not being cynical. His ultimate point is that our Constitutional rights are shaped by today's needs and today's public opinion, not by some misguided notion of originalism. In some ways we can see ourselves in the Americans of 1787, but we shouldn't count on it. Our worlds are too different.
September 26, 2018
This is not a polemic for or against guns, or gun rights, or gun owners. Instead this is a deep dive into the history of the Second Amendment to the U.S. Constitution, delving into the evolving meaning of the words in the text and touching on the history of the U.S. Supreme Court and the American democratic experiment in the process.
I learned so much from this book, about the changing views in the USA toward militias, toward armies, toward the balance between rights and responsibilities. Waldman convinced me that there is no absolute right to gun ownership to be found among the Founding Fathers--that right is now found there because modern American activists want it to be there.
This is not a book about the mysterious power of the NRA, so there are just a few ridiculous quotes from Wayne LaPierre. What this book does contain (that I found highly educational) is a searing critique of judicial "originalism," the idea that holds sway among many modern conservatives that their chosen Constitutional interpretation is correct because it is actually channeling the beliefs and instructions from the Founding Fathers themselves.
Waldman demonstrates conclusively that originalism is bunk. He also shows that the idea of a "right to bear arms," of an individual (independent of any militia), is a very modern concept, formulated really in the last 40 years.
Waldman's conclusion is both encouraging and frightening: "How the Supreme Court sees the Constitution is ultimately up to us."
I learned so much from this book, about the changing views in the USA toward militias, toward armies, toward the balance between rights and responsibilities. Waldman convinced me that there is no absolute right to gun ownership to be found among the Founding Fathers--that right is now found there because modern American activists want it to be there.
This is not a book about the mysterious power of the NRA, so there are just a few ridiculous quotes from Wayne LaPierre. What this book does contain (that I found highly educational) is a searing critique of judicial "originalism," the idea that holds sway among many modern conservatives that their chosen Constitutional interpretation is correct because it is actually channeling the beliefs and instructions from the Founding Fathers themselves.
Waldman demonstrates conclusively that originalism is bunk. He also shows that the idea of a "right to bear arms," of an individual (independent of any militia), is a very modern concept, formulated really in the last 40 years.
Waldman's conclusion is both encouraging and frightening: "How the Supreme Court sees the Constitution is ultimately up to us."
September 3, 2016
The Second Amendment: A Biography by Michael Waldman is an important book that looks at two important things regarding the Constitution. First, it is a history of how the Second Amendment has been interpreted. Second, and perhaps more importantly, it wrestles with how to interpret the Constitution today, showing how the theory of originalism does not work as a coherent theory of interpretation. So first the history of the amendment. The Second Amendment is notoriously difficult to interpret because it has such a strange grammatical structure: “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.” Waldman starts with a lesson about colonial America and the concept of state militias versus standing armies. It is this context that informs the writing of the Second Amendment. During the Constitutional Convention, there was no debate about an individual right to “private gun ownership” or that it needed to be protected in a bill of rights. Later, during the House debate on the Bill of Rights, “None mentioned a private right to bear arms for self-defense, hunting, or for any purpose other than joining a militia” (55-6). In the literature of the time, especially political writings and those of the founders, almost every use of the phrase “bear arms” had a military context. It was the duty of every adult male in the community to join the militia and bring his own gun when training or when mustered for duty. The courts of the early era mostly all understood the right espoused in the Second Amendment as a collective right so that there could be a local militia. Waldman then proceeds to give a history of the NRA, showing how it evolved from a marksmanship and recreational organization to the militant lobbying group it has become today. In 1958, their Washington headquarters had the sign, “FIREARMS SAFETY EDUCATION, MARKSMANSHIP TRAINING, SHOOTING FOR RECREATION.” By contrast, their new headquarters in the 90s had an edited version of the Second Amendment which omitted the first half about militias. The key moment in between these two mottoes happened in the late 70s when new leadership ousted the old in what was called the “Revolt at Cincinnati,” and the group became much more political. This change in the NRA coincided with a new interpretation of the Second Amendment. From 1888 to 1960, “every single [law review] article concluded the Second Amendment did not guarantee an individual right” (97). In the next 20 years, however, articles were evenly split, 27 apiece, for an individual right, but 60% of those for an individual right “were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations” (98). It should also be pointed out that law review articles are not peer reviewed. These articles cited each other and found tenuous arguments and often misunderstood or taken out of context quotes to bolster their claims. The NRA itself was not above trying to misconstrue the founders when it suited their purpose. For instance, a letter Thomas Jefferson wrote to George Washington contained the quote “One loves to possess arms, though they hope never to have occasion for them.” From context, it is clear that Jefferson is not speaking of firearms at all, but rather is asking for some letters back so that he can prepare rebuttals in his capacity as Secretary of State. This sea change in interpretation of the amendment culminated in the 2008 Supreme Court decision District of Columbia v. Heller which finally established a federal individual right to own a gun. Two years later, in McDonald v. Chicago, the right was incorporated to the states, thus overturning Chicago’s handgun restrictions. The late Antonin Scalia, a firm believer in originalism when it comes to interpreting the Constitution, wrote the Heller majority opinion. This is notable because the decision picks and chooses from the original context of the writing of the amendment, avoiding much of the history of militias. Then, it moderates somewhat by mentioning a list of exceptions to the absolute individual right to a gun (i.e. rights of felons and the mentally ill, carrying firearms into schools and government buildings, and allowing for conditions and qualifications for commercial sales), none of which have an originalist explanation. They are clearly in the opinion in order to secure the swing vote so that it could pass 5-4. The decision is not in the least conservative, either, as it overturns over 200 years of precedent. It is the very definition of an activist judiciary to find a new “true” meaning of the amendment that the courts had never before found. This inquiry into the change in interpretation of the Second Amendment thus serves as a good case study for why originalism does not work as an interpretive framework for the Constitution. The first question is whose intention counts when trying to figure out what part of the Constitution means? Do we side with those drafting the document (they certainly didn’t all agree; that’s why they debated it), or the new Congress, or the ratifiers in the states? Perhaps more to the point, a theory that rests on finding an original meaning does not keep pace with social progress. How could the founders, smart as they were, consider the principles that would shape our current more technological, globally connected, era? Each generation reads and interprets the document differently, applying it to the current dilemmas. Waldman has done a superb job explaining the history of a thorny debate. I highly recommend anyone interested in the Second Amendment to read it.
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January 10, 2019The sections dealing with the founding fathers can be dense and ill arranged or feel out of order but that doesn’t take away from the fact that this book is really detailed and provides a really in depth account of the history of gun laws in America. A lot of the times he would name people expecting us to know about them which could be an issue for many. This book does assume a certain degree of prior knowledge. It is also surprisingly hilarious in a lot of places (WWJMD?) and I enjoyed reading it, specifically the second half, even if I can’t claim to remember all of the particulars.
January 3, 2022
Comments from a reader
A good look at the history of the 2nd Amendment. Makes you think about the constitution being a living and evolving document. Eve if the founders had a different view of the 2nd Amendment that we do now, it's the right of the people to reinterpret the constitution.
A good look at the history of the 2nd Amendment. Makes you think about the constitution being a living and evolving document. Eve if the founders had a different view of the 2nd Amendment that we do now, it's the right of the people to reinterpret the constitution.
June 8, 2018
This book was very interesting, and written for the 'lay person' but still lots of Constitutional history. I want to be in a reading group with the book: so that chapter by chapter someone with knowledge can explain it to me. Very timely, and probably all should read.
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