5/26/2016

TheSecondAmendmentDoesn'tSayWhatYouThinkItDoes|MotherJones

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The Second Amendment Doesn't Say What You Think It

Does
Michael Waldman debunks claims that the Constitution protects an unlimited
right to guns.

H A N N A H L E V I N T O VA

J U N . 1 9 , 2 0 1 4 6 0 0 A M

"To the framers, that phrase 'a well-regulated militia' was really critical," says Michael Waldman.

The Shelby

Star/Je Melton/AP

Less than a month after the December 2012 Newtown massacre, the National Rie
Association's then-president, David Keene, warned
(http://www.blogtalkradio.com/ brooklyngopradio/2013/01/10/exclusive-interview--nra-president-david-

keene)

that the new White House task force on gun violence would "do everything

they can to strip Americans of their right to keep and bear arms, to essentially make
the Second Amendment meaningless." Three weeks ago, after a killer shot three
people and wounded eight near Santa Barbara, California

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(http://www.cnn.com/2014/05/24/justice/california-shooting-deaths/)

the Plumber" posted an open letter

victims-murdered-elliot-rodger/)

, conservative activist "Joe

(http:// barbwire.com/2014/05/27/open-letter-parents-

to the victims' families. "Your dead kids," he wrote, "don't

trump my Constitutional rights."*

(#correction)

As America grapples with a relentless tide of

gun violence, pro-gun activists have come to
rely on the Second Amendment as their trusty
shield when faced with mass-shooting-induced
criticism. In their interpretation, the
amendment guarantees an individual right to
bear armsa reading that was upheld by the
Supreme Court in its 2008 ruling in District of
Columbia. v. Heller

(http://www.motherjones.com/politics/2008/03/whitewashing-second-amendment)

. Yet most

judges and scholars who debated the clause's awkwardly worded and oddly
punctuated 27 words in the decades before Heller almost always arrived at the
opposite conclusion, nding that the amendment protects gun ownership for
purposes of military duty and collective security. It was drafted, after all, in the rst
years of post-colonial America, an era of scrappy citizen militias where the idea of a
standing armylike that of the just-expelled Britishevoked deep mistrust.

In his new book, The Second Amendment: A Biography

(http://www.powells.com/ biblio/9781476747446)

Brennan Center for Justice

, Michael Waldman, president of the

(http://www.brennancenter.org/expert/michael-waldman)

at New

York University, digs into this discrepancy. What does the Second Amendment
mean today, and what has it meant over time? He traces the history of the
contentious clause and the legal reasoning behind it, from the Constitutional
Convention to modern courtrooms.

This historical approach is noteworthy. The Heller decision, written by Justice

Antonin Scalia, is rooted in originalism, the concept that the Constitution should
be interpreted based on the original intent of the founders. While Waldman
emphasizes that we must understand what the framers thought, he argues that
giving them the last word is impossibleand impractical. "We're not going to be
able to go back in a time machine and tap James Madison on the shoulder and ask
him what to do," he says. "How the country has evolved is important. What the
country needs now is important. That's certainly the case with something as
important and complicated as guns in America."

Mother Jones: What inspired you to write this book?

Michael Waldman: I started the book after Newtown. There was such anguish

about gun violence and we were debating, once again, what to do about it. But this

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was the rst time we were having that conversation in the context of a Supreme
Court ruling that the Second Amendment protects individual rights of gun owners.
And now every time people debated guns, every time people talked about
Newtown, they talked about the Second Amendment. I wanted to see what the real
story was: What the amendment had meant over the years, and what we could
learn from that.

MJ: What preconceived notions about the Second Amendment did the history that

you uncovered conrm or debunk?

MW: There are surprises in this book for people who support gun control, and

people who are for gun rights. When the Supreme Court ruled in Heller, Justice
Scalia said he was following his doctrine of originalism. But when you actually go
back and look at the debate that went into drafting of the amendment, you can
squint and look really hard, but there's simply no evidence of it being about
individual gun ownership for self-protection or for hunting. Emphatically, the focus
was on the militias. To the framers, that phrase "a well-regulated militia" was really
critical. In the debates, in James Madison's notes of the Constitutional Convention,
on the oor of the House of Representatives as they wrote the Second Amendment,
all the focus was about the militias. Now at the same time, those militias are not the
National Guard. Every adult man, and eventually every adult white man, was
required to be in the militias and was required to own a gun, and to bring it from
home. So it was an individual right to fulll the duty to serve in the militias.

MJ: You point out that the NRA has the Second

"Youcan
squintandlook
reallyhard,but
there'ssimply
noevidenceof
itbeingabout
individualgun
ownershipfor
self
protection."

Amendment inscribed in their lobby, but with the

militia clause removed.

MW: Yes. That was rst reported in an article

(http://www.motherjones.com/politics/1994/01/seconds-missing-

hal )

in Mother Jones in the '90s. But I didn't want to

rely on just that, so one of my colleagues went out to

the NRA headquarters to look at the lobby. And she
had her picture taken in front of the sign so we could
conrm that it was actually still there!

MJ: Based on the history you've uncovered, do you

think the founders understood there to be an unwritten individual right to arms

that they didn't include in the Constitution?

MW: Yes. And that might be noteworthy for some. There were plenty of guns.

There was the right to defend yourself, which was part of English common law
handed down from England. But there were also gun restrictions at the same time.
There were many. There were limits, for example, on where you could store
gunpowder. You couldn't have a loaded gun in your house in Boston. There were
lots of limits on who could own guns for all dierent kinds of reasons. There was an
expectation that you should be able to own a gun. But they didn't think they were
writing that expectation into the Constitution with the Second Amendment.

MJ: So then why focus on the Second Amendment and not the English Bill of

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Rights or other things the framers drew on that more clearly address individual gun
ownership?

MW: We are not governed today, in 2014, by British common law. Law evolved, the

country evolved. It was a very rural place. There were no cities. There were no
police forces. It was a completely dierent way of living. So gun rights activists
turned this into a constitutional crusade. Those who want more guns and fewer
restrictions realized they could gain some higher ground if they claimed the
Constitution.

MJ: You write that throughout most of the 20th century, the courts stayed out of

the gun laws debate. What changed that led them back in?

MW: What changed was the NRA. In 1991, former Chief Justice Warren Burger said

that

(http://www.newrepublic.com/article/ books-and-arts/archive/76368/second-amendment-gun-

rights)

the idea that the Second Amendment recognizes an individual right to gun

ownership was "a fraud

(http://www.jstor.org.ezproxy.sfpl.org/stable/view/10.2307/40239389?

Search=yes&resultItemClick=true&&searchUri=%2Faction%2FdoAdvancedSearch%3Fq1%3D%26amp%3B

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3D%26amp%3Bacc%3Don%26amp%3Bla%3D%26amp%3Bc1%3DAND%26amp%3Bc2%3DAND%26amp%3

Bc3%3DAND%26amp%3Bc4%3DAND%26amp%3Bc5%3DAND%26amp%3Bc6%3DAND%26amp%3Bq2%3

D%26amp%3Bq3%3D%26amp%3Bq0%3DEnding%2Bthe%2Bother%2Barms%2Brace%26amp%3Bf4%3Dall

%26amp%3Bf3%3Dall%26amp%3Bf2%3Dall%26amp%3Bf1%3Dall%26amp%3Bf0%3Dall%26amp%3Bed%3D

%26amp%3Bf6%3Dall%26amp%3Bisbn%3D%26amp%3Bf5%3Dall)

consensus, that was the conventional wisdom.*

" on the public. That was the

(#correction)

The NRA has been around for a long time. It used to

be an organization that focused on hunters and on
training. In 1977, at the NRA's annual meeting,
activists pushed out the leadership and installed new
leaders who were very intense, very dogmatic, and
very focused on the Second Amendment as their
cause. It was called the "Revolt at Cincinnati."
(http://www.washingtonpost.com/politics/how-nras-true-believers-

converted-a-marksmanship-group-into-a-mighty-gun-

lobby/2013/01/12/51c62288-59b9-11e2-88d0-

c4cf65c3ad15_story.html)

From there, the NRA and its allies

"Thosewho
wantmore
gunsandfewer
restrictions
realizedthey
couldgain
somehigher
groundifthey
claimedthe
Constitution."

waged a 30-year legal campaign to change the way the

courts and the country saw the Second Amendment.
And they started with scholarship. They supported a lot of scholars and law
professors. They elected politicians. They changed the positions of agencies of
government. They got the Justice Department to reverse
(http://www.brennancenter.org/analysis/how-nra-rewrote-second-amendment)

its position on

what the amendment meant. And then and only then did they go to court. So by
the time the Supreme Court ruled, it sort of felt like a ripe apple from the tree.

They also moved public opinion. Now it's a pretty widely held view that it's an
individual right. It's funny, I was just on a panel with Alan Gura, who argued the
Heller case. And, you know, I gave him credit for being part of a really signicant

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eort that changed the way we see the Constitution. What's funny is that he and
other gun rights people deny it! They say, "No, this is what everyone thought all
along, for 200-plus years."

MJ: What was the impact of the NRA's sponsorship of Second Amendment legal

scholarship?

MW: They certainly supported a lot of it. The way it works in constitutional law is

that legal scholarship plays a pretty big role. So there became a rather deafening
roar of the pro-individual gun ownership model: They were publishing and
reinforcing each other. Some of it was very useful, and I cite it in the book. And
some of it, when you look at some of the claims, they are easily punctured. It
reminded me of the people who write movie posters, in terms of pulling quotes out
of context. Like this Thomas Jeerson quote"One loves to possess arms." It is in
serious law review articles. It's presented as proof of what the founders really
meant. But what happened was Thomas Jeerson wrote a letter to George
Washington, saying, "Remember I sent you a bunch of those letters from when I
was Secretary of State? Could you send them back to me? I think I'm going to get
attacked for this position I made. I want to be able to defend myself: 'One loves to
possess arms,' even though one hopes not to use them." It's a metaphor! But it's in
these law review articles. It's funny! When you go to the NRA website, it's still there
(http://www.nraila.org/legal/articles/2003/thomas-jeerson-on-the-right-to-bear-a.aspx)

buy a T-shirt

(http://www.cafepress.com/pissotheleft/1576381)

. You can

that has the quote!

MJ: How is it that such questionable

scholarship went so farall the way to

the Supreme Court?

MW: You'll have to ask the Supreme

Court. The thing about the Heller

decision that was especially concerning
to me was that Justice Scalia said this
was the "vindication" of his approach of
originalism. But when it actually came
time to doing the history, he skipped
over the actual writing and purpose of
Yours for $17.99

Amazon (http://www.amazon.com/Buck-

Wear-Mens-NRA Amendment/dp/B00J8UUOIQ)

the Second Amendment. Out of 64 pages

[in the decision], only 2 deal with the
militias. Which is what the founders

thought they were talking about. One of the things that I hope people take away
from this is that the original meaning is always important, but it is not the only way
to interpret the Constitution.

MJ: What are your thoughts on the historical argument that the Second

Amendment is a civil right protected under the 14th Amendment?

MW: After the Civil War, there were a lot of freed slaves who were terrorized by

white vigilantes. One of the purposes of some of the framers of the 14th
Amendment was to make sure that they get guns. Now, the Reconstruction
government that enforced the 14th Amendment also had very strong gun laws, such

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as prohibitions on carrying concealed weapons. Just like the colonial period and the
early revolutionary period, it was a very dierent time. What you had in the South
was low-grade guerrilla warfare between the races. It's hard to draw the lesson of
what we should do now, in our urban society where assault weapons are available
for sale, from the Reconstruction era.

MJ: You write that in Heller, there was a big shift in how the case was argued: There

were many references to colonial America, and very little about current gun laws
and current patterns of violence. Is this the new normal for gun cases?

MW: This is the triumph, in some ways, of originalismJustice Scalia's intellectual

triumph in changing the way people make arguments in front of the Supreme
Court. And yes, there are some other cases where it's been pretty common. What's
interesting is that since Heller, there have been dozens of cases in lower courts.
Heller said: Yes, there is an individual right, but it can be limited. And the extent of
the limits wasn't really clear. Well, dozens of judges have ruled since then, and
overwhelmingly, they have upheld district gun laws. They've said, "Yes, there's an
individual right, but society, too, has a right to protect itself." So maybe Heller's
importance is not so great. And as this judicial consensus has developed across the
country to uphold gun laws, we haven't yet heard from the Supreme Court
(http://www.motherjones.com/politics/2014/06/supreme-court-nra)

one more time. So I think

the Supreme Court isn't done yet.

Correction: An earlier version of this article included an incorrect quote from NRA
executive vice president Wayne La Pierre.

Correction: An earlier version of this article misspelled Chief Justice Warren Burger's last
name.

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