Historically, "... there's simply no evidence of [the Second Amendment] being about individual gun ownership for self-protection or for hunting. Emphatically, the focus was on the militias."

...................................................................................................................................................................
The Second Amendment Doesn't Say What You Think It Does

Michael Waldman pokes holes in claims that the Constitution protects an unlimited right to guns.

By Hannah Levintova, June 19, 2014

Less than a month after the December 2012 Newtown massacre, the National Rifle Association's then-president, David Keene, warned 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, conservative activist "Joe the Plumber" posted an open letter to the victims' families. "Your dead kids," he wrote, "don't trump my Constitutional rights."*

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 arms—a reading that was upheld by the Supreme Court in its 2008 ruling in District of Columbia. v. Heller. 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, finding that the amendment protects gun ownership for purposes of military duty and collective security. It was drafted, after all, in the first years of post-colonial America, an era of scrappy citizen militias where the idea of a standing army—like that of the just-expelled British—evoked deep mistrust.

In his new book, The Second Amendment: A Biography, Michael Waldman, president of the Brennan Center for Justice 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 impossible—and 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 was the first 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 confirm 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 floor 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 fulfill the duty to serve in the militias.

[major snippage]

MW: This is the triumph, in some ways, of originalism—Justice 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 one more time. So I think the Supreme Court isn't done yet.
...................................................................................................................................................................