President of Brennan Center for Justice examines the history of the Second Amendment.
05/25/2014 12:21 AM
05/27/2014 1:09 PM
Other than abortion, there is perhaps no subject more prone to hyperbole, hysteria and venom in this country than whether the “right of the people to keep and bear arms,” in the Second Amendment’s words, should be curtailed by laws that might prevent their misuse.
Seeing the subject discussed and dissected in untypically calm, scholarly tones, then, is a refreshing development. Michael Waldman’s The Second Amendment: A Biography provides a dispassionate account not only of the historical circumstances that led to the measure’s enactment but also, more relevantly, of the many subsequent interpretations of its meaning.
Despite Waldman’s circumspection, however, the roiling debate surrounding Americans and their firearms is not likely to be calmed by his measured treatment of the subject, and he will probably be subjected to the usual hair-burning rants of those for whom nothing but a full-throated embrace of unfettered weaponry will suffice. The fulminators will doubtless use Waldman’s four-year stint as chief speechwriter for President Bill Clinton as evidence that he wants all guns tossed into the ocean, and might well dismiss his current presidency of the Brennan Center for Justice at the New York University School of Law as a telltale sign that he’s a leftist, pointy-headed intellectual, not to be trusted with matters of bullets and bayonets.
But Waldman’s detractors would do well to read the book, which focuses less on taking a position on gun control and more on explaining what the Founding Fathers intended when they approved the amendment and how subsequent decisions from the U.S. Supreme Court and elsewhere have transformed that intent.
Crucial to the discussion, Waldman writes, was the question of a “well regulated militia,” which made sense in its 18th century context, “when ordinary citizens were expected to bear arms for the community” but which grew increasingly inapplicable as the country entered the modern age.
When the Framers were debating their proposed Constitution, Waldman asks, where was “the grand conversation about the individual’s right to own a gun?” He surmises that the Framers “might be startled to see and hear how later generations read, and misread, their goals.”
Waldman describes the National Rifle Association’s “effective, if misleading” campaign, beginning in the 1970s, “to enshrine gun rights in the Constitution,” an effort that gathered momentum even as the number of Americans killed with guns grew to far surpass any such total in other countries. The result was a 2008 Supreme Court decision, written by Justice Antonin Scalia in the case of District of Columbia v. Heller, that found there was an individual right to gun ownership — never mind the militia.
Four years earlier, the ban on assault weapons had expired, and an emboldened Congress declined to renew it. In 2005, President George W. Bush signed a law providing gun manufacturers and sellers with broad immunity from lawsuits, while manufacturers stepped up their considerable donations to the NRA, which in turn held sway over conservative political candidates. Lower courts toed the line, Waldman tells us, with local gun-control laws repealed around the country, a “boon for criminal defendants” who could challenge their gun-possession charges on constitutional grounds.
Hewing closely to legal arguments, Waldman for the most part resists the temptation to proselytize, and he does not address the effects of widespread gun use — the 30,000 Americans who die each year after being shot or the 50,000 wounded — until page 142. He says the multiple murders in Tucson, Ariz., and Aurora, Colo., only “briefly horrified” a nation that appears to give no more than a glancing thought to the fact that “inner-city neighborhoods routinely are plagued with gangs who strafe each other and passersby with gunfire.” Even the slayings of 20 children and six adults at an elementary school in Newtown, Conn., failed to create momentum for across-the-board background checks for gun purchasers.
“Today there are estimated to be as many as 270 million civilian firearms in the country. That is three times as many guns per person as in Canada, and fifteen times as many as in England,” writes Waldman, quoting an assessment from the Johns Hopkins Center for Gun Policy and Research that the homicide rate in the United States is seven times higher than the combined homicide rates of 22 other high-income countries.
“Efforts to enact sensible regulations of guns face many obstacles: powerful organizations, inflamed opponents, cowardly politicians, a media culture that quickly loses interest,” he continues, finally letting loose with uncharacteristically acerbic language. “To surmount these will require grit and wisdom. It should not have to require overcoming a hostile judiciary, misreading history, over-interpreting text, and imposing political views in the guise of judicial philosophy.”
Nick Madigan is a writer in Miami.
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