Michael Waldman’s new book on Individual Gun Rights and the Second Amendment – a Recommendation (3 cents)

A few days ago, the Washington Post published (I read it on line; not sure if it was also published in print) a scathing review of Michael Waldman’s new book “The Second Amendment: A Biography”, basically accusing Waldman of ruining an otherwise important topic by cooking the books – by praising those who agreed with them, and defining all who disagreed, irrespective of who they were or what reasoning they followed, as fools.

Because I haven’t read the book, I don’t know if this reviewer is correct.  I did look at about a dozen other reviews on line – from newspapers and magazines and blogs – and didn’t find anyone else who reached this same conclusion.  Everyone else complemented the author on an understandable and balanced presentation.

I saw Waldman give a talk on his book today at the National Archives.  He certainly did not sound like the man described in the Post review.  He is the president of the Brennan Center for Justice at the New York University School of Law.  An NYU Law graduate, he was a speechwriter for President Clinton for four years.  What his position is on gun rights, I am not sure.  I do know that he is not an absolutist of the National Rifle Association variety, but he didn’t sound like a “ban the gun at all costs” type either.  He didn’t say.

What an interesting topic for a book — looking at the origin of the Second Amendment and how it has been interpreted over the years.  From his presentation, I would guess that you (and I) would be well served by reading it.

He started by saying that it wasn’t until the Heller case in 2008 (that’s the case in which the District of Columbia’s law against owning handguns and keeping them in the home was declared unconstitutional) that the Supreme Court gave an opinion on the rights of gun ownership.  For the first 125 years of the life of the Second Amendment, this question was not brought to the court. Waldman claims that, in part, this is because no one seriously believed until quite recently that individual gun rights constituted a Constitutional question, rather than simply a question to be resolved by local or state legislatures, like so many other things.

For this turnaround, he gives only partial credit to the individual members of the Court, such as Justice Scalia, who wrote the opinion, and more to organizations, and especially, the NRA, which led a 30 year campaign to broaden the interpretation of the Second Amendment.  He discussed the history of the NRA – as an organization dedicated first to improving marksmanship as a help to the military, and then as an organization which was looking out for the interests of hunters, and which never suggested that gun ownership rights were embedded in the Second Amendment.  This was the NRA prior to 1977, when a group staged a revolt at their Cincinnati annual meeting and overturned the leadership, providing a new direction for the organization – the direction we see today.

As to Scalia’s opinion in Heller (which I have not read), he clearly believes that, in trying to interpret the textual meaning of the 27 word amendment, and the original historical views of the founding fathers, that he was attempting the impossible.  And he explains why he reaches this conclusion.  (He also stated that, when Heller was decided, liberals did not get too excited, because they expected this from the then current Court, but that it was the conservatives who objected to the decision, because they felt that it was based on the same sort of “activism” that they had been accusing liberal judges of employing for so long).

The amendment reads:  “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”.  At the time of the American Revolution, Waldman says, the role of the state Militias was viewed as crucial, in opposition to a professional, standing army which was viewed as potentially tyrannical.  All adult males, he says, in each state (I believe), were required to join the Militia, and were required to have a gun and keep it at home, ready to be used if the Militia was required to act.  Unfortunately, he goes on, during the War itself, it was realized that the Militias were not sufficient in and of themselves and an army was created.  Nevertheless, when the war was done, the Militias were viewed to have an important role to play, and the standing position of the majority of individuals was that the federal government should be restrained from ever eliminating that right.

The Americans who rebelled against the British were, however, of two minds (this argument of course still rages today) – some felt that the country could best be served only if the federal government was kept weak, and others only if the federal government were made strong. Nevertheless, even most of those favoring a weaker government had to agree that the Articles of Confederation were not working and that the country was starting out in chaos.  This led to a closed door Constitutional Convention, and then to lengthy and bitter ratification discussions in each of the 13 states.  In each case, of course, by hook or by crook, the,  Constitution was ratified.

But there were those who felt that the document was imperfect and needed some changes.  In the first session of the House of Representatives, James Madison (who originally was against any amendments, and who thought – as the author of most of the constitution – that it was perfect as is) flip flopped for political reasons and proposed 17 amendments to the constitution.  These were debated, and ten were passed (after having their language changed in the process) and adopted.  Of these ten, the second amendment dealt with “the right of the people to keep and bear Arms”.

Apparently, there is little in the record of the House to give the kind of guidance that Scalia would have needed to rely on to determine “original intent”.  There was even less in the Senate record, since, Waldman says, in those days, the Senate operated in secret chambers with no minutes of proceedings kept.  At least, this is what I understood him to say.  But he says, what is clear is that there is no evidence of the Second Amendment being concerned with the right to keep and bear arms outside of what was necessary for Militia participation – nothing to support claims that the amendment was passed to give a right of self-defense, or a right to go hunting, or to protect your house on an individual basis.  Not that there was anything to deny these rights – only that they were not considered “rights” under the Constitution.  Presumably, they were simply matters of law, to be decided and acted upon, one way or another, by state or local legislative bodies.

Shortly after the Revolution was over and the Constitution (with the Bill of Rights) was adopted, something else happened:  the Militias began to lose their importance.  And for more than 100 years, no one really concerned themselves with the Second Amendment.  There were a lot of guns in the country, and there were a lot of gun laws. Waldman mentioned, just as examples, laws in the late 19th century in the West restricting gun use (guns could not be taken, for example, into Dodge City KS).  And after the Civil War, during the Reconstruction period, some of the southern states passed laws saying that whites could have guns, but not blacks.  These laws were struck down on the basis of the Fourteenth Amendment (equal protection), not on the basis of the Second.

Waldman clearly does not think much of the Scalia decision.  Does this make him the one-sided author that the Post reviews accuses him of being?  I don’t think so – I think this is simply the result of his analysis of the history of the Second Amendment and his analysis of the words of Justice Scalia filtered through his analysis.  Michael Waldman did not come across as a partisan of anything but his own scholarship.  He is not an exciting orator.  He sort of plods through his story.  But his story is interesting enough that his lack of oratorical flourish is quickly forgiven.  As many of the other reviewers have said – the story he tells is interesting and balanced and understandable.  That’s all you can ask.

I would like to read the book.



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