The Second Amendment: A Biography

Michael Waldman, “The Second Amendment: A Biography,” Simon & Schuster, 2014, 177 pp.

The controversial second amendment is only 27 words long—how difficult can that be to interpret: “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.” Only recently has this amendment become an issue with anyone.  “The Supreme Court (only) considered the 2^nd Amendment four times and until 2008 never found a Second Amendment right to individual gun ownership.  In the Reconstruction-era United States v. Cruikshank (1875) case, it ruled that the amendment did not cover the states (only federal legislation), states could regulate guns in any manner they saw fit.  In Presser v Illinois (1886), it found that gun rights belonged to militias, not individuals.  In Miller v. Texas in 1894, it rejected the criminal defendant’s gun right claim.  In the 1939 Miller case, it upheld federal gun law, making clear that gun laws only could not interfere with actual, current militia service.  But by the time the Supreme Court heard another challenge in Heller (2008), there was strong momentum for a different view.” (Pg. 97.) The 2008 Heller decision may have made the ‘well-regulated militia’ portion of the controversy moot. 

I believe there is a cultural gulf separating rural gun owners from those worried about crime in crowded urban neighborhoods.  It is the same cultural separation that led to Trump’s election victory and presents a perfect example that one-size-regulation will not fit all; the rural needs and dangers are not the same as in urban neighborhoods and the resulting cultures related to guns is certainly different.

My Notes:

Pg. xif: For two centuries the Second Amendment received little notice.  It is only one sentence long and 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.”  For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard.  Then in 2008, in District of Columbia v. Heller, the 5-4 majority Supreme Court, Scalia writing, declared that the Constitution confers a right to own a gun for self-defense in the home. 

Pg. 32:  The Constitution Convention did not include a Bill Of Rights when the document was submitted to the states to get the required 9 of 13 state’s acceptance.  It quickly became plain that this was a significant political error.  Seven state constitutions already had such declarations.  Four protected the right to bear arms, only one (Pennsylvania) for personal self-defense.  Also, although guns abounded, gun regulations were common.  So, in 1791 the first ten amendments to the US Constitution were added, the 2^nd amendment among them.

Pg. 78:  The militia system vanished in 1903 when Congress passed the Dick Act creating what we know as the National Guard. 

Pg. 81:  During the Depression, bank robbery replaced bootlegging as a profit center after prohibition was repealed.  Al Capone, Machine Gun Kelly, and Bonnie and Clyde became household names.  FDR waged a crackdown on gangsters and their guns.  He won passage of the first federal gun legislation, the National Firearms Act of 1934.  This law imposed a heavy tax on the weapons used most prominently by gangsters.  Machine guns and sawed-off shotguns had to be registered, and could not be transported across state lines.  The NRA backed the plan and the federal crackdown on guns was hugely popular.  The Supreme Court upheld the 1934 law in United States v. Miller, by far its most direct examination of the Second Amendment in its first two centuries.

Pg. 83:  When Martin Luther King Jr. and Robert Kennedy were assassinated in 1968, President Johnson pressed Congress to enact the Gun Control Act of 1968.  It established a federal licensing system for gun dealers and banned the importation of military-style weapons.  It also prohibited people deemed dangerous from purchasing or possessing guns.  The NRA stayed mostly silent.  Then, after the assassination attempt on Reagan, a decade later, led to The Brady Bill, requiring a background check and waiting period before buying a gun.  The next year Clinton won passage of a ban on assault weapons (a ban that, if not reenacted, would expire, and in 2004, did.)

Pg. 87:  Previous to 1871 guns were so inaccurate that target practice was deemed a waste of time.  Then new technology—breech-loading guns and metal cartridge ammunition—made shooting a prized skill.  In 1871, militia and army veterans created a new organization to train American men to shoot safely and accurately: The National Rifle Association.  In 1958 it opened a new headquarters building; metal letters spelled out its purpose: “Firearms safety education, marksmanship training, shooting for recreation.”  However, the tumult of the 1960s fractured the calm.  Gun violence began to assume the status of a public controversy.

Pg. 90:  Gun group veterans still call the NRA’s 1977 annual meeting the “Revolt at Cincinnati.”  One weekend in 1976, the NRA board fired eighty staff members.  The next year, the leadership decided to move its headquarters to Colorado Springs, Colorado, signaling a retreat from politics.  More than a thousand angry dissidents showed up at the annual convention.  By four in the morning, the dissenters had voted out the organization’s leadership.  The new head NRA lobbyist, Neal Knox, opposed gun laws of any kind.  He felt the assassination incidents in the 1960s could have been created for the purpose of disarming the people of the free world.  Now the sacredness of the second amendment—not just the interests of hunters or even of homeowners—was at the heart of the NRA concerns. 

Pg. 93:  Clinton was acutely aware of the cultural gulf separating rural gun owners from those worried about crime in crowded urban neighborhoods.

Pg. 105:  In 1937 FDR was fed up with the Supreme Courts' opposition to New Deal legislation and proposed expanding the Court’s membership to fifteen justices, so he could pack it with liberal jurists.  There was a countrywide backlash and Congress rejected the plan yet at the same time the Court capitulated and began to affirm New Deal laws.  Wags dubbed it the ‘Switch in Time That Saved Nine.’

Pg. 106:  In 1954 the Court struck down school segregation in Brown v. Board of Education  The Court began to apply the Bill of Rights—which Cruikshank had declared to bind only Congress—forcefully to the states.  Within a decade, the Warren Court had required that criminal defendants be provided counsel (Gideon v. Wainwright), that police needed to let suspects know they had ‘the right to remain silent’ (Miranda v. Arizona), and that electoral districts must reflect ‘one man one vote’ (Reynolds v. Sims).  The Court expanded protection for free speech in New York Times v. Sullivan it ruled that a public figure must prove actual malice to win a libel judgment.  Then the Court identified a right to privacy in the Constitution when the Court struck down a law prohibiting the sale of contraceptives (Griswold v. Connecticut in 1965).  Justice Douglas said that the right to privacy could be discerned in the ‘penumbras, formed by emanations’ from the Bill of Rights’ specific guarantees.  Roe v. Wade followed in 1973 building on Griswold.

Pg. 119:  By early 2008, according to the Gallup poll, 73 percent of Americans believed the Second Amendment ‘guaranteed the rights of Americans to own guns’ outside the militia.  Only 24 percent in 2012 favored banning handguns.

Pg. 121:  Washington D.C. in 1976 barred individuals from keeping a loaded handgun at home without a trigger lock.  Dick Heller, a security guard, wanted to bring his work revolver home to his high-crime neighborhood.  The NRA tried to stop his filing a lawsuit because they were afraid he would lose. The Supreme Court ruled in 2008 5-4 striking down the D.C. law.  For the first time, the Court ruled that the Second Amendment recognizes an individual right to own a gun unrelated to militia service.  Scalia wrote the opinion and did not seek to explain the Framers’ original intent.  He just skips over the militia part of the amendment and what counts, to him, is the second half of the amendment.

Pg. 126:  Scalia goes on to explain ‘the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’

There is no explanation given why these limitations are acceptable.  And why, if these are permitted, the D.C. law is not.

Pg. 133:  Heller was the first major case in which the Roberts Court upended years of precedent to move in a conservative direction.  It was not the last.  In 2010 Citizens United v. FEC overturned the long-standing bar on corporations and unions spending unlimited sums on elections erasing decades of precedent and nullifying a 1907 law banning corporate election spending. 

The Roberts’ Court came within inches of striking down the Affordable Care Act (Obamacare).  In the end, the Court held the law constitutional under the ‘taxing power,’ but found the statue’s requirement that individuals buy health insurance violated the Commerce Clause, which gives Congress the power to regulate the economy.  Had the Court struck down Obamacare on the grounds that it exceeded Congress’s power under the Commerce Clause, it would have set in motion forces that would have toppled statutes going back to the New Deal. 

Pg. 151:  In 2004 the assault weapons ban expired and Congress declined to renew it.  The next year, Bush signed a law providing broad immunity from lawsuits for gun manufacturers and sellers.  Manufacturers quietly began to provide substantial funding for the NRA.  By 2013 the number of states where it was flatly illegal to carry a gun fell from sixteen to zero.  In 2005, Florida Governor Jeb Bush, flanked by the head lobbyist for the NRA, signed the Stand Your Ground law.  Increasingly the gun group focused on state legislatures, which could preempt antigun ordinances or laws enacted by cities.  Additionally, the NRA focused on federal judicial nominations.  Before 2009, the organization had never counted a vote for or against a Supreme Court nominee toward the ‘score’ it keeps of pro-gun votes.

Pg. 160:  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 Canada, and fifteen times as many as England.  But the ranks of gun owners have not swelled.  Ownership rates have slid from half of all households in the 1970s to 34 percent today.  Only one in five Americans reported owning any guns at all.  In short, fewer people own more guns.

Pg. 167:  The general profile of gun owners in America differs substantially from the general public.  Roughly three-quarters of gun owners are men, and 82 percent are white.  Taken together, 61 percent of adults who own guns are white men.  Nationwide, white men make up only 32 percent of the adult population.  Gun owners are nearly twice as likely to identify as Republicans as non-gun owners. 

Addenda:

This saga was recently covered in Adam Winkler’s “Gunfight: The Battle Over the Right to Bear Arms in America,” a book I reported on earlier.  Like Winkler, Waldman describes public support for gun control in the 1960s, the radical right turn of the National Rifle Association in the ’70s and what he calls “the tsunami of scholarship and pseudo-scholarship” that advanced the seemingly novel argument that the amendment was “intended” to protect individual gun rights.

Winkler carefully reflected both sides’ arguments. To Waldman, however, the idea of an individual right to gun ownership is not just wrong but ridiculous; those who disagree are not just mistaken but fools.

The real firearms argument is not a historical dispute about revolutionary America but a political one about 21st-century America. Discover Magazine September 2019 edition reports that in 2017 39,773 Americans lost their lives to firearms; 1.625 million have died from gunfire since 1968--more than the accumulated American deaths from all wars since the country's founding.  (Suicides account for over 40% of these deaths).

Newsweek Oct 4th edition reports: for every 100 Americans, 120.5 guns are owned; we have more guns than people, 393,300, 000 guns.