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‘The Second Amendment’ and our inalienable right to be hopelessly confused

The Second Amendment: A Biography

By Michael Waldman

Simon & Schuster

255 pages, $25

By Mike Vogel


Whether or not you like this book will depend on where you stand on gun issues. Whether you appreciate its arguments will depend on how discerning you are as a reader.

Michael Waldman’s dissection of the history of the Second Amendment – a “biography” only in the sense that we have, as he believes, a “living Constitution” – is a welcome addition to the ongoing debate over gun rights and gun control in America but it’s not impartial. That’s not necessarily a bad thing; this is, after all, a debate, and there is no shortage of publications on either side of that divide, but it’s something to keep in mind. If you favor gun control, you’ll like this book; if you favor gun rights, you probably won’t.

And in the process, you may risk losing sight of Waldman’s underlying topic – modern America’s interpretation of the Constitution, and the forces at work on shaping judicial review.

To be clear, a phrase Waldman uses now and again: This is about the Second Amendment, and it includes a well-researched and thoughtful discussion of the history of the debate that formed a guiding amendment that says, in its ambiguous entirety, “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.”

The Framers of the Constitution, Waldman notes, evidently believed in the freedom to punctuate. But the placement of those confusing commas, in an era before the adoption of standards for punctuation and capitalization, does nothing to render the meaning of those 27 words unarguably clear.

Do they mean “A well regulated militia … shall not be infringed” or “the right of the people to keep and bear arms shall not be infringed”? The Second Amendment is the only amendment in the Bill of Rights with such an introductory clause, an “ablative absolute” that would have been familiar to the Framers familiar with Latin – and a clause that could limit the purpose of the following words.

Or it could be just a throat-clearing for the fundamental right of the last part of the sentence.

Or, more likely, it’s wording by committee and the outcome of the then-dominating argument over the role of the state militias in warding off the danger to democracy that would be posed by a standing army.

As Waldman rightly notes from the very outset of his review, our current debate over individual gun ownership – then required of every white American male as part of an equally required militia membership – would mystify those who wrote the sentence: “To the Framers, even our question would make little sense. To us, today, their answer makes little sense.”

Waldman devotes the first part of this book to tracing the history of the amendment, the second part to the rise and impact of the advocacy of individual gun rights – something he finds to be of relatively recent origin in judicial philosophy and political advocacy – and the last part to an analysis of the current legal landscape and debate.

In the process, he moves from history to advocacy for culturally defined gun control and a look at trends in the light of mass shootings such as the one in Newtown, Conn. The book becomes, at its climax, an argument for a “living Constitution” and an attack on the legal movement known as Originalism – interpreting the meaning intended by the Framers, as opposed to strict adherence to their wording – as championed by Justice Antonin Scalia.

The rules of such argumentation date back at least to Aristotle. Argumentation, when it doesn’t descend simply into quarreling (of which there is no lack on this issue) is an interactive thing with three main components – the character of the arguer, the attitude of his or her audience and the strength of the argument.

Books tend to have a self-selected audience. You’d have to be interested in gun issues to buy this one, for example, and it’s a little like cable-TV talk shows in that your willingness to buy into, or even finish, this tome will depend on your attitude toward the issue. A good polemicist knows an audience can only be moved a reasonable distance, gradually, toward the arguer’s point of view.

The character of the arguer counts, too. Waldman is former director of speechwriting for President Bill Clinton and now is president of New York University’s Brennan Center for Justice, a progressive policy institute. That will endear him to some, and make him anathema to others, especially on an issue he himself describes as extremely polarizing.

The strength of the argument will be the reader’s call, but it does rest on extensive legal and historical research. Underlying it is Waldman’s contention that the legal community has defined the issues by finding in the amendment individual rights that historians, who see it as the outgrowth over a very real and immediate concern in the nascent republic over the role of state militias and the role of the federal government, do not. To this writer, who debated the Constitution, private gun ownership was assumed and not the focus of any debate, “It simply did not come up.”

For almost all of the time between then and now, Waldman contends, the courts routinely found no individual gun rights in the amendment. That changed in the mid-20th century, when the kind of social activism embodied in New Deal legislation began to spill over into other areas. Waldman finds that encouraging in civil rights and such issues but not so much in the gun rights advocacy which he finds rooted in the radicalization of the National Rifle Association, the rise of the fundament right and political machinations in both elected offices and the staffing of the Supreme Court.

He cites three lessons from all of this – 1) the “limitations of trying to answer today’s questions by consulting the oracles of the past,” 2) the need for judicial restraint in addressing policy issues that almost inevitably wind up in court and 3) a call (familiar to progressives) to remember that power resides in the people, and that “American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers.”

Maybe. The public, which is not always fully engaged, does elect the politicians who write the laws that the courts review, a factor of major concern to the politicians. But it’s a factor leavened by political dependence on the money or votes that can be delivered by powerful special interest groups.

The Constitution, and judicial interpretation thereof, has led us into those thickets, too.

Mike Vogel is the former editor of the Buffalo News editorial page.