The Second Amendment

by Michael Waldman

  Wills concluded:

  Time after time, in dreary expectable ways, the quotes bandied about by Standard Model scholars turn out to be truncated, removed from context, twisted, or applied to a debate different from that over the Second Amendment. Those who would argue with them soon tire of the chase from one misquotation to another, and dismiss the whole exercise—causing the angry reaction from Standard Modelers that they are not taken seriously. The problem is that taking them seriously is precisely what undermines their claims.

  Pro–gun control scholars have one conspicuous black eye, too: Michael Bellesiles. The Emory historian took a rare stab at looking at original sources from a pro–gun regulation perspective. His book Arming America, published in 2000, offered a counterintuitive argument. Bellesiles presented evidence showing that early Americans did not own many guns. The gun culture, he asserted, arose only later. The book won the Bancroft Prize, the history profession’s top award. The author purportedly drew on probate records and other early documents to show that Revolutionary era Americans did not own firearms in great numbers. Charlton Heston called the thesis “ludicrous.” Flaws quickly emerged. Bellesiles claimed key notes had been lost in a flood. He cited others that had in fact been lost in an earthquake. Columbia University withdrew the history prize, and he resigned from Emory University. In 2012, Bellesiles turned up in Connecticut; he was teaching and working as a bartender.

  * * *

  I. Close your eyes when listening to Heston’s speech: the actor brilliantly mimics his own classic line from Planet of the Apes, “Take your stinking paws off me, you damn dirty ape!”

  SIX

  Contest for the Constitution

  Agitation by gun activists, even the relentless arguments of revisionist writers, would not be enough to change the way the Second Amendment was viewed. That required another simultaneous development: the rise of the judicial right.

  Since the 1960s, conservative jurists have come to dominate federal courts. The Supreme Court considered its gun case at their moment of peak influence. Strikingly, this new wave of conservative judges came to rely on a novel argument: the doctrine known as originalism. They proclaimed that the only legitimate way to interpret the Constitution was to ask what the Founding generation would have thought its terms meant. This was a radically new way for courts to decide. It came to fruition in the gun case. Originalism has come to dominate the jurisprudence of firearms more than on any other major topic.

  Of course, through history debates roiled over the courts and Constitution. We have a written Constitution, after all. And we have a tradition of judicial review—of judges interpreting that document, with untrammeled power to strike down laws they deem unconstitutional. That tradition makes the United States distinct. It gives judges, and the lawyers who urge them on, an anomalous place in our democracy.

  Chief Justice John Marshall established the principle of judicial review in Marbury v. Madison, when the Court struck down the Judiciary Act of 1789. But principle aside, in fact the Supreme Court rarely overturned a federal law during the nineteenth century. Dred Scott was noteworthy not only for its blundering racism, but because it negated a major congressional enactment. After the Civil War, though, federal and many state courts began to exert a greater role. Broadly they saw themselves as a bulwark against unwise progressive legislation, and as a force for economic liberty. Judges concocted a theory of “substantive due process” that forbade government from enacting health and safety regulations, wage laws and other intrusions on the market. In Lochner v. New York in 1905, the U.S. Supreme Court struck down a law that limited bakers to working ten hours a day, on the grounds that the Fourteenth Amendment protected “liberty of contract.” The case was so infamous, lawyers know the entire period as the Lochner Era. The Supreme Court was, of course, the same judicial body that refused to apply the Fourteenth Amendment to states to protect the rights of freedmen, and that had just upheld segregation.

  Progressives decried the use of judicially crafted theories to thwart the democratic process. They argued powerfully for judicial restraint. Social problems, they insisted, were best solved by the politically accountable branches, drawing on experience, expertise, and compromise. We know their names today because of what they urged their brethren not to do. Louis Brandeis made his name as “the People’s Lawyer.” He managed to persuade the conservative Supreme Court that an Oregon law limiting working hours for women was justified. His brief on behalf of the National Consumers League included two pages of legal theory, and 111 pages of facts: social science studies, laws from other countries, medical reports, newspaper clippings. To this day lawyers know a filing heavy on social science as a “Brandeis brief.” The original hangs in a public hallway of the Supreme Court. When progressive president Woodrow Wilson appointed Brandeis an associate justice, his crusading spirit lent itself to a drive for the Court to do less. He warned other judges “we must ever be on our guard, lest we erect our prejudices into legal principles.” He joined Oliver Wendell Holmes, who famously wrote a friend, “If my fellow citizens want to go to Hell I will help them. It’s my job.”

  Conservative judges’ impulse to intervene against an activist government came to a head during the Great Depression. One after another, the Supreme Court struck down many of the most prominent laws of the “First New Deal.” Franklin Roosevelt charged that the justices were returning the country to the “horse and buggy age.” He won a huge landslide in the 1936 election, when the “nine Old Men” were a campaign issue. In March 1937, Roosevelt proposed to expand the Court’s membership to fifteen justices, so he could pack it with liberal jurists. Congress rejected the plan, in the past century’s most contentious fight over the courts. FDR stalled politically. Yet at the same time, the Court capitulated. Suddenly, starting with West Coast Hotel v. Parrish, it began to affirm New Deal laws. Wags dubbed it the “Switch in Time That Saved Nine.” Social Security, the National Labor Relations Act, and more were all justified under the Commerce Clause. The Court allowed the country to move into a modern industrial era. In so doing, the justices made clear they would step back from what they had regarded as their principal task: protecting economic freedom from government intervention. Yale’s Bruce Ackerman observes, “With the decisive triumph of the activist welfare state over the Old Court, an entire world of constitutional meanings, laboriously built up over two generations, had come crashing down upon the Justices’ heads.” What role for judicial review?

  Only lawyers could relish whence came the answer: a footnote. A year after the “Switch in Time,” in an otherwise turgid case known as Carolene Products, Justice Harlan Fiske Stone made clear that the Court would stand aside in cases involving economic regulation. But cases involving the Bill of Rights, or where the political system failed to protect the rights of a “discrete and insular minority,” would be subject to more searching scrutiny.

  Some footnote. It set the Court off on a course of activism and a tremendous expansion of the rights of ordinary citizens, especially racial and religious minorities. It was the era of the Warren Court: led by former California governor Earl Warren starting in 1953, the justices became agents of social change. Most significant, they struck down school segregation in Brown v. Board of Education in 1954. 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 as well. In New York Times v. Sullivan, it ruled that a public figure must prove actual malice to win a libel judgment, thus greatly expanding public debate. More controversially, the court identified and forcefully protected a right to privacy in the Constitution. Such a right is not mentioned in its text. However, in Griswold v. Connecticut in 1
965, the Court struck down a law prohibiting the sale of contraceptives. Justice William O. 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 eight years later, building on Griswold.

  It was a thrilling and disconcerting time in the law. Once the stodgiest of professions, legal liberalism seemed as if it could be a force for justice. Justice William J. Brennan Jr., the New Jersey jurist who served as the “playmaker” on Warren’s court, passionately spoke about “human dignity” as the goal of the law. For the first, indeed only time in American history, the Court stepped ahead of public opinion.

  Through it all, in conservative eras or liberal ones, the way judges made their decisions reflected their belief in a growing, changing country. Judges professed to base their rulings on precedent, public philosophy, the structure of the Constitution, and other broad principles. They acted in a kind of constitutional common law, each case building on previous rulings. The consensus judicial view was articulated by Justice Oliver Wendell Holmes as early as 1920: “[When] we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.” In deciding the case (about bird treaties), “we must decide what the country has become.”

  By the late 1960s, vast social change abetted by “activist” judges rattled the political consensus. In earlier decades, the Court aggressively fought with a popular president; now it extended the protections of the Bill of Rights to criminal defendants and minorities. “Impeach Earl Warren” billboards dotted the Southern states. Thoughtful progressives began to worry that the Court was moving too fast. Ruth Bader Ginsburg, long a pioneering women’s rights attorney at the American Civil Liberties Union, asserted Roe was mistakenly decided: rather than relying on fuzzy “penumbra,” the justices should have made a narrower ruling based on the explicit language of the Equal Protection Clause. Barack Obama, as a young law lecturer, spoke to Chicago Public Radio in 2001. He found it one of “the tragedies of the civil rights movement, was [that] because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And in some ways we still suffer from that.”

  The backlash against judicially imposed liberalism was sharp, swift, and ultimately overpowering.

  LEGAL BACKLASH: THE RISE OF THE RIGHT

  Business responded first. Lewis Powell was an owlish, courtly lawyer from Richmond, Virginia, who served on the boards of eleven corporations. He wrote a strategy memo for the U.S. Chamber of Commerce urging the creation of a wide network of organizations, think tanks, political committees, and publications to push for pro-business policies. Powell sketched the map for the infrastructure of the conservative resurgence. “No thoughtful person can question that the American economic system is under broad attack,” he warned. “. . . We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts.” Two months later Richard Nixon appointed Powell to the Supreme Court. Conservative legal academics—led by Richard Posner of the University of Chicago—sought to subject the new wave of environmental and consumer protections to cost-benefit analysis, using economic tools. Throughout the 1970s, the first wave of legal conservatism focused on curbing regulatory overreach.

  • • •

  Still, conservative lawyers lacked an overarching theory of how to read the Constitution—how judges should rule, and how to justify when they would not. After all, jurists seeking to slam the brakes on perceived liberal judicial activism had numerous arguments. One can read a constitutional provision based on its text, on the structure of the document (what kinds of federalism or checks and balances are being served?), on tradition and the following of precedent. Conservatives could have argued powerfully for judicial restraint: unelected judges should step aside. Or they could have embraced “judicial minimalism,” echoing eighteenth-century political theorist Edmund Burke. No more grand theories: cases should be decided one at a time, with appropriate respect for precedent, traditions, and the dangers of moving too fast or far. Or conservatives could have argued that the underlying value in the Constitution is individual freedom, or private property. None of these rose to the fore of conservative legal thought, though. Each lacked emotional punch.

  Instead, conservatives rallied around the newest, and most radical theory. Originalism was first given prominent public voice by Attorney General Edwin Meese in 1985. He was an unlikely intellectual provocateur. Meese looked like a cheerful Realtor. A Yale-educated Californian, he was serving as a deputy district attorney when he prosecuted student protesters who occupied Berkeley in the Free Speech Movement of 1964, one of the decade’s first convulsive confrontations with authority. California’s Junior Chamber of Commerce honored him for his work. He joined Governor Ronald Reagan as a legal advisor and then chief of staff. In Reagan’s first presidential term, he served as a counselor in the White House—the conservative voice in the “troika” that deftly steered policy. For thirteen months after Reagan nominated Meese to be attorney general, the Senate delayed his confirmation, and he endured a five-month Independent Counsel probe. Freshly confirmed, at last he had a platform, his first address to the American Bar Association in July 1985. Most dignitaries would confine themselves to bromides. Meese launched a jurisprudential movement with a high-profile, provocative speech. He accused the justices of “roam[ing] at large in a veritable constitutional forest.” Ideologically polarized voting blocs “all reveal a greater allegiance to what the Court thinks constitutes sound public policy, rather than deference to what the Constitution—its text and intention—may demand,” he said. Without “a coherent jurisprudential stance,” the Court risked drifting back toward “radical egalitarianism.”

  What, then, should a constitutional jurisprudence actually be? It should be a jurisprudence of original intention. By seeking to judge policies in light of principles, rather than remold principles in light of policies, the Court could avoid both the charge of incoherence and the charge of being either too conservative or too liberal.

  A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection. This belief in a jurisprudence of original intention also reflects a deeply rooted commitment to the idea of democracy. . . . Those who framed the Constitution chose their words carefully; they debated at great length the minutest points. The language they chose meant something.

  Justice William J. Brennan Jr. responded publicly four months later. Brennan was the leader of the Court’s liberals, and author of some of the century’s most important opinions. He long had derided the idea that his job was merely to divine the Framers’ “original intent.” Brennan had accepted an invitation from Georgetown University weeks before Meese spoke. His words answered Meese with force, and landed the justice on the front page of The New York Times.

  Originalism, Brennan countered, was “arrogance cloaked as humility.” Often, the intentions of the Framers were ambiguous, with gaps in the record. “Indeed, it is far from clear whose intention is relevant—that of the drafters, the congressional disputants, or the ratifiers in the states?” To choose to limit our interpretation to what we think the Fram
ers intended, Brennan argued, is itself a choice of values. “Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes in social circumstance”:

  [If] I may borrow the words of an esteemed predecessor, Justice Robert Jackson, the burden of judicial interpretation is to translate “the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century.”

  We current Justices read the Constitution in the only way that we can: as twentieth century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.

  Three decades later, the debate between Meese and Brennan still defines the polarized judicial debate. Robert Bork was the principal academic articulator of “original intent.” Only the approach of “original understanding . . . is consonant with the design of the American republic,” he was to write. Two years later, President Reagan nominated Robert Bork for the Supreme Court. The U.S. Senate rejected Bork after a ferocious campaign.