2nd Amendment Fundamentalists
The Second Amendment: A Biography
Michael WaldmanSimon & Schuster, 2014
For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard. Then, in 2008, the U.S. Supreme Court upended two centuries of precedent. In the case of District of Columbia v. Heller, an opinion written by Justice Antonin Scalia declared that the Constitution confers a right to own a gun for self-defense in the home. That's right: the Supreme Court found there to be an individual right to gun ownership just a few years ago. Now, when we debate gun control we do so in the context of a Supreme Court ruling that limits what we can do (though we don't yet know how much).
What follows in the book's first half is even and comprehensive: a historical context for the framers' drafting of the Constitution, and the the reasons for adding the Bill of Rights. We're introduced to the thinking that undergirded the Constitution’s writing, and to the political haggling around the many threats and interests at home and outside our borders that precipitated the Second Amendment's inclusion in what the states would be willing to ratify. The public fight over constitutional ratification in each state was no minor obstacle, and though the Second Amendment was one of the least-argued matters, the entire document incited a full and frank exchange of ideas. Waldman’s writing captures the pace of that exchange.
Polemicists debated in New York City with tabloid intensity. Madison had decided to stay in Manhattan to manage the pro-Constitution forces there. By the time the state convention prepared to meet, journalists and pamphleteers had published broadsides against and for ratification. Madison, together with Alexander Hamilton and John Jay, published The Federalist in the New York Independent Journal and two other papers. The topic of the new military system did not come up until the twenty-ninth article in the series. Hamilton took the first swing. It was only right, he asserted, that the new national government would take at least partial control of the militias. “If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security,” he wrote. Make the militias a success, he wrote, and that would do more “to render an army unnecessary than a thousand prohibitions on paper.”
Waldman’s intended subject is individual gun rights, and he describes his frustration with the paucity of documentation around the debate:
Did the Second Amendment protect militias, or an individual right to a gun? The answer: both, and neither. It protected the individual right to a gun … to fulfill the duty to serve in a militia. To the Framers, even our question would make little sense. To us, today, their answer makes little sense.
The story of the second amendment is one of a young nation undertaking an experiment. Ordinary, virtuous citizens would keep their own military arms, and would gather and train regularly, out of civic virtue, national pride, and a sense of ownership and responsibility for the republic. These militia members would be called from the population to fight only in times of state or national crisis. There would be no standing army, because that army could implicitly threaten the citizenry. Such an army would draw monthly checks in time of peace, and it could interfere in national politics, so they decided to rely on the infrequent participation of individuals in the national defense.
The failure of the militia experiment would become total in 1812. That was the fateful year when British troops entered Washington and many Northeastern states refused to activate their militias in defense. The Brits won in a walk. Ironically, it had been Madison who argued most forcefully against a standing army and for the virtuousness and might of “a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.” But that year he saw, in the form of a fire in the capital, that public tempers for a sense of civic duty had, well, diminished appreciably.The case for a standing army, in the stead of a large, loose affiliation of militias had been made, and that model would endure.Through the 1830s, through the years of the Andrew Jackson presidency, national pride gave way to local and individual grudges, and gun crime rose sharply. This led to some of the first gun regulations in the states. There began a delineation between
professional soldier and
private citizen in the writing and interpretation of law. There also arose in that same moment the first arguments that the Second Amendment protected
individual gun ownership, and many states attempted to legislate language for that. Most state and federal courts were unsympathetic though, interpreting that gun rights only applied to weapons for military use.Overall, there are enough flourishes in Waldman’s book to decorate a quick and enjoyable read. Waldman describes Madison's centrality:
In spring 1789 Madison was now thirty-eight years old, but already had performed enough public roles to last a lifetime: architect of the Constitution and pseudonymous articulator of its purposes, organizer of the campaign to ram it to passage, survivor of a harrowing campaign for Congress. He wrote George Washington's Inaugural Address, the House's reply to Washington, and Washington's reply to the House.
Waldman states his thesis plainly, "Americans view the Constitution and its provisions in the light of our times. Each generation makes its own Second Amendment." Realities (frontier lawlessness, Southern reconstruction, urban consolidation) have always led to local variances in how gun laws have been established and enforced, and the Supreme Court, until well into the 20th century, stayed out of it, always upholding states' ability to regulate guns as they saw fit. Ambiguity and localization in gun rights reigned, with the preponderance of rulings favoring gun control at the city and state level, until the 2008 Heller opinion.The last section of Waldman’s book turns sharply from the historical to the polemical. He takes us into the modern day, and into his opinions of contemporary jurisprudence and lobbying, focusing most of his ire on the notion of "originalism," especially as practiced by Justice Antonin Scalia. He outlines the rise of the NRA from sportsman's club to (I'm paraphrasing), a bunch of lying, hyperventilating mouthpieces for gun manufacturers and anti-government cranks. The reader may agree with most of his conclusions, but Waldman runs far enough from the groundwork he just laid out that it’s doubtful he will produce many converts, which was the result this book seemed to have deserved.There is context and background here that will be useful even to readers who follow the news very closely:
In the year before the December 2012 massacre at Sandy Hook Elementary School, the bucolic countryside around Newtown rang with automatic weapons fire and odd explosions. Police were inundated with complaints of noisy shooting late at night and early in the morning. The din did not come from weapons for hunting deer (plentiful in the woods), or handguns stashed in a bedside night table. Residents had begun spraying targets with semiautomatic weapons. According to the police chief, some had taken to shooting up propane tanks. Others enhanced their targets with Tannerite, a mixture of ammonium nitrate and aluminum powder, which detonates with a roar when hit. At the request of police, the town council prepared an ordinance to ensure there would not be noisy shooting late at night, early in the morning, or too close to occupied buildings.Then one hundred hunters and gun activists crowded monthly meetings and decried the zoning proposal as a violation of their Second Amendment rights. “This is a freedom that should never be taken away,” one woman proclaimed. The National Shooting Sports Foundation—the firearms industry lobbying group—was headquartered in the town, and argued against the ordinance. The town council changed the rules. Mary Ann Jacob, the chair of the council’s “ordinance committee,” soon became better known: she was the heroic librarian’s aide who barricaded the door to shield children at the school during the mass shooting:A few days after the bloodbath, the National Shooting Sports Foundation website seemed frozen in place. A message from the group’s president professed to being “deeply shaken and saddened by the horrible events that took place in Newtown, Connecticut, our headquarters and home.” Surrounding the statement were promotions for the industry’s SHOT trade show in Las Vegas, and links to the group’s “Bullet Points” and “Pull the Trigger” blogs. Second Amendment fundamentalism, amped up by industry lobbying, turned even a zoning tussle into a fight over first principles: welcome to post- Heller America.