Note: This review is by my husband Jim.
Michael Waldman is a professor of law at New York University. The Second Amendment: A Biography is an erudite and informative analysis of the history of the interpretation of that amendment by the Founding Fathers, the Supreme Court, and various legal scholars. Waldman states:
“For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias….then in 2008, the U.S. Supreme Court upended two centuries of precedent. In…District of Columbia v. Heller [it] declared the Constitution confers a right to own a gun for self-defense in the home.”
On a literal level, this book is the story of how that change came about. On a “meta” level, it is a description of the process by which the Constitution is interpreted, and how interpretations evolve over time. On a societal level, the content of this book is extremely important because of what it says about the power of the government, on any tier, to deal with the current spate of gun violence.
The Second Amendment has a curious grammatical construction:
“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.”
How does the reference to “the militia” in the introductory phrase affect the interpretation of the amendment as a whole? Waldman’s historical analysis makes clear that the debates that preceded the adoption of the amendment were concerned with the role of the militia (what we would now call the National Guard), and had virtually nothing to say about an individual’s right “to keep and bear arms.” Moreover, the amendment says that the right to bear arms is that of the people (presumably acting in the context of the militia), not individuals. Ironically, it must be noted that the militias were composed of white males who were expected to supply their own weapons to participate in military training. Those men were not merely allowed to keep rifles; they were required to do so.
Waldman goes into detail about just how the meaning of the amendment changed over time. His concluding chapter contains some very interesting observations, the most striking of which I quote below:
“A full scan of American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers….[T]he reason the Court has pronounced that limited right [individual gun ownership] is not because the Framers of the Second Amendment intended it to confer it. (They didn’t.) Nor is it because of a dictionary from 1730, or a state court judicial interpretation from 1830, or even a Supreme Court case from 1939. Rather, it is because the people today believe there is such a right. The country has evolved—the Constitution is living, as it were—and the widespread acceptance of some form of gun ownership is part of the way Americans think. Not then, now. [It reflects] a popular consensus won by focused activists.”
Evaluation: This book brings a lot of light to some issues about which one often finds only heat. It should be read by all citizens concerned with gun violence and gun rights.
Note: For those interested in a more thorough review, you will find one on our sister site, Legal Legacy. And for a satiric could-have-almost-happened take on the issue, see this humorous imagined conversation between James Madison and Thomas Jefferson from The New Yorker.
Rating: 4/5 stars
Published by Simon & Schuster, 2014