Cover image for
Title:
The Second Amendment : a biography
Author(s):
Waldman, Michael, 1960-
ISBN/ISSN:
147674744X

9781476747446

1476747458

9781476747453
Personal Author:
Physical Description:
pages cm
Abstract:
"By the president of the prestigious Brennan Center for Justice at NYU School of Law, the life story of the most controversial, volatile, misunderstood provision of the Bill of Rights. At a time of renewed debate over guns in America, what does the Second Amendment mean? This book looks at history to provide some surprising, illuminating answers. The Amendment was written to calm public fear that the new national government would crush the state militias made up of all (white) adult men--who were required to own a gun to serve. Waldman recounts the raucous public debate that has surrounded the amendment from its inception to the present. As the country spread to the Western frontier, violence spread too. But through it all, gun control was abundant. In the 20th century, with Prohibition and gangsterism, the first federal control laws were passed. In all four separate times the Supreme Court ruled against a constitutional right to own a gun. The present debate picked up in the 1970s--part of a backlash to the liberal 1960s and a resurgence of libertarianism. A newly radicalized NRA entered the campaign to oppose gun control and elevate the status of an obscure constitutional provision. In 2008, in a case that reached the Court after a focused drive by conservative lawyers, the US Supreme Court ruled for the first time that the Constitution protects an individual right to gun ownership. Famous for his theory of "originalism," Justice Antonin Scalia twisted it in this instance to base his argument on contemporary conditions. In The Second Amendment: A Biography, Michael Waldman shows that our view of the amendment is set, at each stage, not by a pristine constitutional text, but by the push and pull, the rough and tumble of political advocacy and public agitation"-- Provided by publisher.

"By the president of the prestigious Brennan Center for Justice at NYU School of Law, the life story of the most controversial, volatile, misunderstood provision of the Bill of Rights"-- Provided by publisher.
Bibliography Note:
Includes bibliographical references and index.
Pub Date:
Simon & Schuster, 2014.
Holds:

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Summary

Summary

By the president of the prestigious Brennan Center for Justice at NYU School of Law, the life story of the most controversial, volatile, misunderstood provision of the Bill of Rights.

At a time of renewed debate over guns in America, what does the Second Amendment mean? This book looks at history to provide some surprising, illuminating answers.

The Amendment was written to calm public fear that the new national government would crush the state militias made up of all (white) adult men--who were required to own a gun to serve. Waldman recounts the raucous public debate that has surrounded the amendment from its inception to the present. As the country spread to the Western frontier, violence spread too. But through it all, gun control was abundant. In the 20th century, with Prohibition and gangsterism, the first federal control laws were passed. In all four separate times the Supreme Court ruled against a constitutional right to own a gun.

The present debate picked up in the 1970s--part of a backlash to the liberal 1960s and a resurgence of libertarianism. A newly radicalized NRA entered the campaign to oppose gun control and elevate the status of an obscure constitutional provision. In 2008, in a case that reached the Court after a focused drive by conservative lawyers, the US Supreme Court ruled for the first time that the Constitution protects an individual right to gun ownership. Famous for his theory of "originalism," Justice Antonin Scalia twisted it in this instance to base his argument on contemporary conditions.

In The Second Amendment: A Biography , Michael Waldman shows that our view of the amendment is set, at each stage, not by a pristine constitutional text, but by the push and pull, the rough and tumble of political advocacy and public agitation.


Author Notes

Michael Waldman was one of the few aides to work closely with president Bill Clinton from the first day of his presidency until nearly the end of the term. He played a key role on controversial issues from campaign finance reform to free trade. Previously, he was a writer & public interest lawyer & the author of "Who Robbed America? A Citizen's Guide to the S&L Scandal."

(Bowker Author Biography)


Reviews 3

Publisher's Weekly Review

Though not likely to end controversial debates, Waldman (My Fellow Americans), president of the Brennan Center for Justice at NYU School of Law, delivers a balanced review of the history of Second Amendment politics and jurisprudence. He goes back to colonial America to distinguish original from changed meanings of gun ownership in the U.S. It's a story of sudden, violent rupture-continuity for two centuries, then radical transformation when the NRA, with the help of a "remarkable, concerted legal campaign," got involved in opposing gun control in the 1970s. As Waldman shows, the idea of individual gun ownership "simply did not come up" at the Constitutional Convention, but when Madison and others wrote a muddled Second Amendment, the seeds for later confusion and claims were laid. Guns, of course, abounded, but without constitutional protection. That laissez-faire situation ended when lawyers, ideologues, and special interests, all benefiting from the backlash against cultural change after the 1960s, campaigned to change constitutional law. Its result was the Supreme Court's notorious 2008 decision in District of Columbia v. Heller, which enunciated new constitutional law-law that even some of the nation's most conservative jurists condemned. Waldman relates this tale in clear, unvarnished prose and it should now be considered the best narrative of its subject. (June) (c) Copyright PWxyz, LLC. All rights reserved.


Booklist Review

Given the murkiness of the language of the Second Amendment and worries about armed citizens from the era of the Revolutionary War to the Civil War, from the settling of the western frontier to the gangsterism of the Prohibition era, the U.S. Supreme Court has generally ruled against the constitutional right to own a gun. In 2008 that all changed. Legal scholar Waldman examines the political forces behind that change, including the growing influence of the National Rifle Association and how gun rights play into the culture wars. Waldman offers historical perspective on the fierce debate to decide how much militia the nation should support and then goes on to trace the violent history of gun use in the U.S. and the increasingly contentious debate about crime and safety, all against the backdrop of debates about originalism as applied to the Constitution. This is a lively and engaging exploration of the radically different perspectives of the Founding Fathers, worried about the nation's ability to protect itself yet fearful of a powerful military, and contemporary politicians fretting over culture wars and the role of government and the rights of individuals.--Bush, Vanessa Copyright 2014 Booklist


Library Journal Review

The 27 words of the Second Amendment guarantee the right to bear arms. But questions concerning by whom and subject to what regulations have generated thousands more words by historians, law professors, and judges-most importantly in two key U.S. Supreme Court decisions in 2008 and 2010 that ruled that having a gun is an individual right and not a collective right of state militias. The role of the militia in colonial days is where Waldman (Brennan Ctr., New York Univ. Law Sch.) begins. The author discusses the debate in the First Congress on the Bill of Rights, the passage of which was the price for ratification of the Constitution. The story is thin on the next 150 years, jumping ahead to the late 20th century when a new generation of scholars-and the National Rifle Association (NRA)-worked to show the courts that the Second Amendment protected individuals' rights. VERDICT Relatively short and readable, this text is a good introduction to judicial and academic debate on the meaning and origins of the Second Amendment with enough endnotes to show the way for those who want to read further.-Michael O. Eshleman, Kings Mills, OH (c) Copyright 2014. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.


Excerpts

Excerpts

The Second Amendment INTRODUCTION On March 1, 1792, Secretary of State Thomas Jefferson issued a terse announcement. Congress had established the post office. It had passed a new law governing fisheries. And the states had ratified the first ten amendments to the Constitution: the Bill of Rights. Jefferson's deadpan proclamation belied years of drama and conflict. The amendments were the product of a fierce debate over government's role and the rights of the people, one that unfolded since the start of the American Revolution. Even today, Americans know some parts of the Bill of Rights by heart. We cherish the First Amendment, with its guarantee of freedom of religion, speech, and the press. We debate the Fourth Amendment, with its requirement for a search warrant. All know about the right to avoid self-incrimination ("taking the Fifth"). For two centuries, however, the Second Amendment received little notice. Few citizens understood its provisions. Scholars paid it little attention. Lawyers rarely raised it in court. In recent years, of course, the Second Amendment has been thrust to the center of controversy. Politicians declare themselves its "strong supporters." News reports speculate about gun laws and whether they will pass muster. It has become a synonym, in powerful unspoken ways, for America's gun culture. The Second Amendment is one sentence. It reads in its 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. Its foggy wording and odd locution stand out in the Constitution. Lawyers and scholars debate its commas and clauses. For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard. Then, in 2008, the U.S. Supreme Court upended two centuries of precedent. In the case of District of Columbia v. Heller, an opinion written by Justice Antonin Scalia declared that the Constitution confers a right to own a gun for self-defense in the home. That's right: the Supreme Court found there to be an individual right to gun ownership just a few years ago. Now, when we debate gun control we do so in the context of a Supreme Court ruling that limits what we can do (though we don't yet know how much). Far from a dry set of words scratched on parchment, then, it turns out that the story of the Second Amendment can tell us much about how our country has changed and grown, how we see ourselves and our government, how we balance the rights of individuals and the need for safety. Part One of this book begins in the tumultuous years of the American Revolution and its aftermath. The Constitution was drafted in secret by a group of mostly young men, many of whom had served together in the Continental Army, and who feared the consequences of a weak central authority. They produced a charter that shifted power to a national government. "Anti-Federalists" opposed the Constitution. They worried, among other things, that the new government would try to disarm the thirteen state militias. Critically, those militias were a product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age sixteen to sixty was enrolled. He was required to own--and bring--a musket or other military weapon. Debate still burns about the Framers' intent and the original meaning of the Constitution. Surprisingly, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention. Nor with scattered exceptions in the records of the ratification debates in the states. Nor on the floor of the U.S. House of Representatives as it marked up the Second Amendment. James Madison's original proposal, in fact, included a provision for conscientious objectors. People ask: who is right? Did the Second Amendment protect militias, or an individual right to a gun? The answer: both, and neither. It protected the individual right to a gun . . . to fulfill the duty to serve in a militia. To the Framers, even our question would make little sense. To us, today, their answer makes little sense. As the nation spread west, guns grew abundant. (After all, one of those young Constitution writers, Alexander Hamilton, was killed in a duel!) In the years immediately following the Civil War, the authors of the Fourteenth Amendment wanted to make sure that former slaves could arm themselves to protect against organized violence from white vigilantes. But gun control laws were prevalent, too. An iconic photo of Dodge City--that legendary frontier town--shows a sign planted in the middle of its main street: "The Carrying of Fire Arms Strictly Prohibited." In the twentieth century, Americans demanded a stronger government as they surged into crowded cities. Amid Prohibition and the Depression, modern gun control laws sought to rein in gangsters and the heat they packed. And, again, the courts stayed out. Chief Justice Warren Burger--a rock-ribbed conservative appointed by Richard Nixon--articulated the consensus when he called the idea of individual gun rights in the Constitution a preposterous "fraud." Part Two tells the story of how that changed: how a remarkable, concerted legal campaign toppled two centuries of precedent. One thread, of course, is the rise of the National Rifle Association. The group brags of its ballot box victories. Starting in the 1970s, the organization also quietly--but emphatically--backed a jurisprudential campaign to enshrine gun rights in the Constitution. Its legal allies insisted that for two centuries judges simply got it wrong. They managed to persuade a substantial part of the public, and after that the courts. The road to Heller was paved by one of history's most effective, if misleading, campaigns for constitutional change. Heller shows something more: how a generation of conservative judges and scholars transformed the way we interpret the Constitution. "Originalism" asserts that the only legitimate way to interpret a constitutional provision is to ask what the Constitution meant at the time it was enacted, in the late 1700s. Its influence has peaked in the Supreme Court led by John Roberts. He assigned Scalia the 2008 gun case. Lawyers arguing before the Supreme Court now brandish obscure historical texts like graduate students defending a particularly opaque dissertation. This section will suggest that reverence for the "text" can be just a pretext for a particular political view. What now? Part Three will trace Heller's impact as we struggle again to curb gun violence. As before, spasms of violence spur calls for new laws. (Today, we are sickened by massacres such as the one in Newtown, Connecticut, rather than the political assassinations that prompted action before.) This is the first time, though, that Americans have debated firearm safety proposals with an individual right to own a gun enshrined in the Constitution. Will new doctrine deflect new laws? Will we all have the right to carry a weapon and stand our ground? We will examine the cases since Heller, and find a surprise: despite the hoopla surrounding the case, courts upheld nearly all gun rules. Individuals have a right to a gun, judges have found, but society has a right to protect itself, too. Yet that assumption may be premature. As Justice Robert Jackson said, the Supreme Court is not final because it is infallible, but infallible because it is final. Inevitably the Court will speak again. But the High Court's imprimatur has given new strength to Second Amendment fundamentalism. Increasingly the debate over guns resembles less a contest over crime policy, and more a culture war over core values. Through it all, we see how the great themes of American history rise and recur: the role of government. Race. Freedom. The singular power of the Supreme Court. Most strikingly, the fact that our view of the Second Amendment is set, at each stage, not by a pristine constitutional text, but by the push-and-pull, the rough-and-tumble of political advocacy and public agitation. But first, we should start by understanding why we have a Second Amendment in the first place. That story begins in the heat of revolution, sixteen miles outside Boston. Excerpted from The Second Amendment: A Biography by Michael Waldman All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.

Table of Contents

Introductionp. xi
Part 1
1 Patriots' Dayp. 3
2 Ratificationp. 29
3 The Tub to the Whalep. 45
4 Arkansas Toothpicks, Beecher's Bibles, Fourteenth Amendmentp. 65
Part 2
5 Revolt at Cincinnatip. 87
6 Contest for the Constitutionp. 103
7 The Road to Hellerp. 117
Part 3
8 From Heller to Sandy Hookp. 141
9 Flying Blindp. 161
Conclusion: "The Right of the People"p. 171
Acknowledgmentsp. 179
A Note on Sourcesp. 183
Notesp. 189
Indexp. 245

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