The 2nd Amendment is just 27 words long: "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." But in that single, awkwardly constructed sentence, Michael Waldman suggests in "The Second Amendment: A Biography," the essence of the United States may be revealed.
"A living Constitution," Waldman writes, "does not discard the spirit of the document, but seeks to apply its timeless principles to modern challenges that could not have been imagined by the Framers or their contemporaries. It reflects with frankness that our sense of human dignity has, in fact, evolved."
These notions of dignity and evolution motivate "The Second Amendment," which offers a smart if occasionally frustrating historical overview of America's 200-plus year relationship with guns.
According to the National Rifle Assn. and other pro-gun activists, the right to own weapons is an essential aspect of our national identity, an expression of independence. The reality, Waldman argues, is more nuanced and, like so much in American culture, has developed over time. Such a measured perspective is hardly unexpected; a former Bill Clinton speechwriter, Waldman is president of NYU Law School's Brennan Center for Justice, a nonpartisan think tank dedicated to "improving the systems of democracy and justice." At the same time, his calm tone and habit of taking the long view offers a refreshing tonic in this most loaded of debates.
Guns, after all, represent a microcosm of an America divided between left and right, urban and rural, collective and individual rights. It's complicated further because it is encoded in the Bill of Rights — one of our foundational documents, to borrow a phrase from Texas Sen. Ted Cruz, who famously sparred with Dianne Feinstein at a Senate Judiciary Committee hearing in 2013.
"[W]ould she consider it constitutional," Cruz asked of Feinstein, "for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights? Likewise, would she think that the Fourth Amendment's protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?"
Cruz's showboating aside — Feinstein responded that she was "not a sixth-grader" and didn't need a lecture on the Constitution — these are important questions, not so much for pro-gun advocates as for supporters of privacy and free speech rights. What happens if we unravel one amendment, regardless of the way we feel about it? What does it mean for those amendments we prefer?
This is the puzzle of the 2nd Amendment, which, Waldman admits, is a problematic text at best. "Let's be clear," he writes: "the eloquent men who wrote 'we the people' and the First Amendment did us no favors in the drafting of the Second Amendment." By way of explanation, he takes us on a looping ride from the colonial era, when gun ownership was not only common but also, in many cases, compelled because of the militias, to our own post-Sandy Hook America, in which "Second Amendment fundamentalism rests powerfully on the idea that an empowered individual — armed to protect himself (gender definitely intended) and his family — is the morally virtuous way to live."
The movement he traces is a key one: from the people (as a group) to people, from defense of the homeland to defense of the home.
As recently as 2008, Waldman points out, a "constitutional right to gun ownership" was not explicitly protected, but this changed in June of that year when, in District of Columbia vs. Heller, the Supreme Court struck down parts of Washington, D.C.'s Firearms Control Regulations Act. The majority opinion, written by Antonin Scalia, is clear about the implications: "[W]hatever else [the 2nd Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
Waldman makes a compelling case for this as just the sort of judicial activism Scalia and others have long derided, although at the same time, he acknowledges it (along with the 2010 case of McDonald vs. Chicago) as new baseline precedent. "Chances are vanishingly small that Heller will be overturned," he admits, before going on to note that it still "ought to be possible to craft an effective regime of public safety while carefully stepping around newly erected judicial obstacles."
What he's addressing is the Constitution as a living document, which we interpret not according to the intent of the Framers — he's no fan of originalism — but rather through the filter of the present day. "We would be uncomfortable," Waldman writes, "with the idea that states could fight wars against the U.S. Army," which was, of course, an early draw of the militias, that they might serve as a potential check on federal power. "We would recognize that the Founders expected people to have military weapons in their homes." And yet, this is the conundrum, isn't it, since "an assault weapon is precisely the kind of armament a modern-day Minute Man might want to use."
"The Second Amendment" is not without problems; in places, it moves too quickly, assuming knowledge, particularly of legal cases, many of us don't have. More than once, I had to look things up (the passage of the 1968 Gun Control Act, for instance), when Waldman wasn't clear. In the end, however, the book makes an argument for the 2nd Amendment as a kind of mirror — reflecting shifting mores, shifting attitudes.
That's not always, or even generally, a good thing: Remember how pressure from the NRA and others helped shut down congressional debate over assault weapons in the wake of Sandy Hook. Still, as Waldman stresses, this is less a final outcome than part of an ongoing back-and-forth about who we are and what we value, a process that is messy and imperfect but also (when it's working) democratic — in other words, fundamentally American.
The Second Amendment