ACKNOWLEDGMENTS
I began this book in the months after the Newtown massacre, when gun control proposals once again became a subject for wide debate. Strikingly, gun rights now vied with public safety as powerful public arguments. I wrote this book in part to understand the meaning and history of the Second Amendment and how we read the Constitution. This is not a book about guns or gun control. Others have far more to say (and certainly say it more loudly). Rather, I was most interested in the question of how our view of the Constitution has changed over time—when and whether we should allow the past to guide our national life today. I have long supported commonsense gun laws. I also worked for a president who taught me about the passionate attachment to guns—for hunting and other purposes—shared by millions of Americans. I did not enter into this inquiry with a fixed set of views about what the framers of the Second Amendment did and did not mean. Much of what I learned surprised me, and, I hope, will inform the reader.
I am immensely grateful to my colleagues at the Brennan Center for Justice at NYU School of Law. They joined in this project enthusiastically and with skill. I am privileged to be part of such a dynamic institution.
Poy Winichakul was my close collaborator throughout the research and writing of the book. She is a gifted writer, a top-notch activist and organizer, and a stellar future lawyer and leader. She was willing to go the extra mile, as when she traveled to the National Rifle Association’s headquarters in Fairfax, Virginia, to confirm that, yes, the NRA still has an edited and inaccurate version of the Second Amendment on the wall of its lobby.
She led an energetic and committed team. Rebecca Guiterman and David Berman, summer legal associates at the Brennan Center, provided top-quality factual and legal research. Andrea Adomako, a Barnard undergraduate, proved a tireless researcher. Lena Glaser and Kate Brennan proved invaluable in the final stretch. The law firm Paul, Weiss, Rifkind, Wharton and Garrison provided hugely appreciated pro bono assistance in tracing the course of the law post-Heller. We owe tremendous thanks to Christopher Filburn for his pro bono assistance in tracing the course of the law post-Heller and to Robert Atkins for his generous help.
I am especially grateful to experts who commented on the manuscript at various stages: Saul Cornell, Adam Winkler, Kate Shaw, Brina Milikowsky, Jeff Shesol, and Jonathan Alter. The views here emphatically are my own, as are any errors. I am grateful, too, to Brina’s colleagues at Mayors Against Illegal Guns for setting out the legal implications of the ongoing fight over guns. Adam Samaha, David Yassky, Stephen Schulhofer, Burt Neuborne, and James Jacobs offered expertise and cautions. Professor Lilly Geismer of Claremont McKenna College provided valuable guidance on the political transformations in the 1970s.
Good friends and family read the manuscript: Stephen Bowman, Robert Caro, Steve Waldman, Martin Waldman, and Sandra Waldman. I cannot thank them enough for their time and encouragement.
Brennan Center colleagues provided astute and challenging editing. Fritz Schwarz, our chief counsel, read the manuscript closely even as he finished his own book on government secrecy. I want to especially thank Jeanine Plant-Chirlin, for her insight, edits, and encouragement, and James Lyons and Jennifer Weiss-Wolf, who provided hugely helpful edits. Inimai Chettiar, Oliver Roeder, Julia Bowling, and John Ablan were especially helpful on the intersection between criminal law, social science research, and gun policy. Wendy Weiser, John Kowal, Vivien Watts, Tony Butler, Sidney Rosdeitcher, Larry Norden, Johanna Kalb, and others offered valuable support and insight on constitutional issues. Thank you as well to our generous supporters; to our board cochairs, Patricia Bauman and Lawrence Pedowitz, for their encouragement; and to two successive deans of the Law School, Ricky Revesz and Trevor Morrison.
The driving force behind this volume was the incomparable Alice Mayhew at Simon & Schuster. She saw the value in a concise popular explanation of the Second Amendment and where the Supreme Court’s jurisprudence leaves the country. Her insights, editing, and sweeping knowledge are remarkable, and I count myself lucky to work with her again after more than a decade’s time. Thanks too to Jonathan Cox for all his work on the book, as well as Jonathan Karp, Julia Prosser, Maureen Cole, Stephen Bedford, Lisa Healy, Fred Chase, Michael Accordino, Akasha Archer, and others at Simon & Schuster. Rafe Sagalyn, my agent, was enthusiastic and savvy, and his support over so many years is greatly appreciated.
As ever, my most profound thanks go to my wonderful family. Liz Fine read the manuscript and provided, as ever, wisdom and encouragement—and tolerance—and love—in equal measure. Ben Waldman embodies the spirit of patriotism and service in the idea of a “well regulated militia.” In college in California, he joined the Army ROTC. I was proud to shoot with him at the shooting range on parents’ weekend. Susannah Waldman was my housemate, preparing to go to college, as I brought this book to a close. I learned much from her social commitment and interest in constitutional law, even in high school. Josh Waldman has been my most unflagging cheerleader and my hardworking colleague on our mutual late night homework binges. I wrote previous books when they were young. It is a special thrill to see how they have each grown into insightful, independent, and very different men and women.
The Brennan Center was named after the late Supreme Court Justice William J. Brennan, Jr. It carries forward his humanist vision and passion for justice. What of Justice Brennan? Perhaps he might take issue with the idea of judicial restraint as a governing premise? I never met the Justice, and I cannot say what he would have thought. But when his former clerks formed the organization, they went to him to ask permission to use his name and dedicate it in his honor. He said he would agree, under one condition. It could not simply follow his views and his opinions.
“That,” he told them, “would be originalism.”
Brooklyn, New York
November 2013
A NOTE ON SOURCES
After many years in which the Second Amendment received little attention, in the past three decades it has been the subject of a remarkable number of articles and books. Whole forests have fallen. Here is a guide to some of the most useful works for further reading.
A few key books offer the most cogent arguments about the changing meaning of the Second Amendment. Adam Winkler’s Gun Fight: The Battle over the Right to Bear Arms in America (New York: Norton, 2011) offers the most complete, panoramic view of the role both of guns and gun control throughout American history. Saul Cornell’s groundbreaking A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006) and H. Richard Uviller and William G. Merkel’s The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Durham: Duke University Press, 2002) make the most compelling case about the civic duty embodied in the original Second Amendment.
Works arguing most energetically for an individual rights interpretation are by Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984); Freedmen, The Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (Westport: Praeger, 1998); and The Founders’ Second Amendment: Origins of the Right to Bear Arms (Chicago: Ivan R. Dee, 2008); and Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994). Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998) argues that the Second Amendment was designed to strengthen militias, but that its meaning was transformed by the Fourteenth Amendment. Of note, most of these books came before the more recent wave of research by Saul Cornell and others about the militias and early American gun laws.
Several valuable essay collections illuminate the ongoing debate over the Second Amendment. Carl Bogus, ed., The Second Amendment in Law and History (New York: The New Press, 2002) collects scholarly essays, generally from a pro–gun control perspective. Saul Cornell and Nathan Kozuskanich’s 2013 collection, The Second Amendment on Trial (Amherst: Univ
ersity of Massachusetts Press, 2013), is a good compendium of commentary on Heller and other recent cases with all sides represented. Cornell also edited Whose Right to Bear Arms Did the Second Amendment Protect? (New York: St. Martin’s, 2000), which also includes multiple points of view.
Countless law review articles have been published, many of them repetitive or pawing at narrow turf. I consulted dozens of them; when appropriate, they are cited in the notes.
When conservatives began to urge “originalism” as the one true path to understanding the Constitution, many records from the founding era were available only in research libraries. Today, more and more, these records are available online. James Madison’s notes for the Constitutional Convention—available in book form in Notes of Debates in the Federal Convention of 1787 (Athens: Ohio University Press, 1985)—are also now available on several excellent websites. The multivolume Founders’ Constitution, published by the University of Chicago, is online (http://press-pubs.uchicago.edu/founders/). It includes transcripts of the Constitutional Convention, as well as the debate over the Bill of Rights in the first Congress. The Documentary History of the Ratification of the Constitution is a justly celebrated set, twenty-six volumes and counting, that includes public documents, transcripts of debates, letters, publications and other sources. (It is available online, though only to subscribers: http://rotunda.upress.virginia.edu/founders/RNCN.html.) A new Library of Congress website hosts 123,000 documents from the papers of six key founders: www.founders.archives.gov. Key source materials are found in Herman Schwartz’s two-volume The Bill of Rights: A Documentary History (New York: Chelsea House/McGraw-Hill, 1971).
Of course, a library’s worth of history explores the American Revolution and era of Constitution-writing. Pauline Maier’s authoritative Ratification: The People Debate the Constitution (New York: Simon & Schuster, 2011) is the essential current work on the struggle over the Constitution’s ratification. Popular histories of the Constitutional Convention include David O. Stewart, The Summer of 1787: The Men Who Invented the Constitution (New York: Simon & Schuster, 2007), Christopher Collier and James Lincoln Collier, Decision in Philadelphia: The Constitutional Convention of 1787 (New York: Random House, 1986), and Catherine Drinker Bowen’s still compelling Miracle in Philadelphia (Boston: Little, Brown, 1966). A delightfully paced narrative about James Madison’s role is Richard Labunski, James Madison and the Struggle for the Bill of Rights (Oxford: Oxford University Press, 2006), a story also well told by Kenneth R. Bowling, “ ‘A Tub to the Whale’: The Founding Fathers and the Adoption of the Federal Bill of Rights,” Journal of the Early Republic 8 (Fall 1988). Among the many works that mull the thinking of the founding generation as it affected the Constitution, I drew heavily on the ideas in Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996). Eric Foner’s Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988) remains the best single volume on the period that created the Civil War Amendments. Jack Rakove offers a withering assessment of mangled history in current debates over the Second Amendment in “The Second Amendment: The Highest Stage of Originalism,” which first appeared in the Chicago-Kent Law Review in 2000 and appears in Carl Bogus’s collection as well.
General well-regarded histories of gun laws and policy include Alexander DeConde, Gun Violence in America (Boston: Northeastern University Press, 2000) and Lee Kennett and James LaVerne Anderson, The Gun in America: The Origins of a National Dilemma (Westport: Greenwood, 1975). The arc of the militia is traced in John K. Mahon, History of the Militia and the National Guard (New York: Macmillan, 1983). NYU professor James Jacobs argues that with the ubiquity of guns, among other factors, traditional gun control laws have limited value: James B. Jacobs, Can Gun Control Work? (New York: Oxford University Press, 2002). Other recent books include Mark Tushnet, Out of Range: Why the Constitution Can’t End the Battle over Guns (New York: Oxford University Press, 2007) and Craig Whitney, Living With Guns: A Liberal’s Case for the Second Amendment (New York: Public Affairs, 2012). The changing role of the NRA is traced in Joel Achenbach, Scott Higham, and Sari Horwitz, “How NRA’s True Believers Converted a Marksmanship Group into a Mighty Gun Lobby,” Washington Post, January 12, 2013.
The surge of the conservative legal movement and the drive to Heller is described in many places. The most perceptive and important work about the pro-gun-rights movement’s success in changing the popular view of the meaning of the Second Amendment is by Yale professor Reva B. Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Harvard Law Review 122 (2008). A good overview of originalism comes in a book celebrating the anniversary of the Federalist Society, Steven G. Calabresi, ed., Originalism: A Quarter-Century of Debate (Washington, D.C.: Regnery, 2007). Justice Antonin Scalia’s A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997) includes debates with critics. Stephen Teles offers a useful history, The Rise of the Conservative Legal Movement (Princeton: Princeton University Press, 2008). Progressive scholars have begun, at last, to fully debate conservative originalist ideas. A clear critique for a popular audience comes in David Strauss, The Living Constitution (New York: Oxford University Press, 2010). Jack Balkin’s Living Originalism (Cambridge: Harvard University Press, 2011) suggests that a more flexible approach is what the Framers had in mind. Justice Stephen Breyer’s two books, valuable but necessarily constrained by his role on the Court, seek to frame the Constitution as a charter for a self-governing democracy: Active Liberty: Interpreting Our Democratic Constitution (New York: Random House, 2005) and Making Our Democracy Work (New York: Vintage, 2010) (which offers a bland recounting of his dissent in Heller). The American Constitution Society (ACS) was formed to be a liberal counterweight to the Federalist Society. A valuable collection of the works by its scholars is Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder, Keeping Faith with the Constitution (Washington, D.C.: American Constitution Society for Law and Policy, 2009). The continued explication of popular constitutionalism by progressive scholars includes Larry Kramer, The People Themselves (New York: Oxford University Press, 2005) and Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009).
The politics and personalities of the current Supreme Court are well-traced in Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007) and The Oath: The Obama White House and the Supreme Court (New York: Random House, 2012), and in Marcia Coyle’s The Roberts Court: The Struggle for the Constitution (New York: Simon & Schuster, 2013). Justice Antonin Scalia’s life is examined by Supreme Court reporter Joan Biskupic in American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Farrar, Straus & Giroux, 2009).
Finally, the fully story of the Heller and McDonald cases can be traced in the remarkable online resource at the website scotusblog. It includes all the lower court rulings, pleadings, and friend-of-the-court briefs for Heller (www.scotusblog.com/case-files/cases/dc-v-heller/), McDonald (www.scotusblog.com/case-files/cases/mcdonald-v-city-of-chicago/), and other recent cases.
ABOUT THE AUTHOR
© ADRIAN KINLOCH
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law, a leading nonpartisan law and policy institute that focuses on improving the systems of democracy and justice. He was director of speechwriting for President Bill Clinton from 1995 to 1999, responsible for writing or editing nearly two thousand speeches, including four State of the Union and two Inaugural Addresses. He was special assistant to the president for policy coordination from 1993 to 1995. He has been a lecturer at Harvard’s Kennedy School of Government and an attorney in private practice. His books include My Fellow Americans, A Return to Common Sense, and POTUS Speaks. He appears frequently on television and radio to discuss
the presidency, democracy, and the Constitution. Waldman is a graduate of Columbia College and NYU School of Law. He lives with his family in Brooklyn, New York.
MEET THE AUTHORS, WATCH VIDEOS AND MORE AT
SimonandSchuster.com
authors.simonandschuster.com/Michael-Waldman
ALSO BY MICHAEL WALDMAN
My Fellow Americans: The Most Important Speeches of America’s Presidents from George Washington to Barack Obama
A Return to Common Sense
POTUS Speaks
Who Robbed America? A Citizens’ Guide to the S&L Scandal
Who Runs Congress? (with Mark Green)
We hope you enjoyed reading this Simon & Schuster eBook.
* * *
Join our mailing list and get updates on new releases, deals, bonus content and other great books from Simon & Schuster.
CLICK HERE TO SIGN UP
or visit us online to sign up at
eBookNews.SimonandSchuster.com
NOTES
INTRODUCTION
Jefferson issued a terse announcement: Bernard Schwartz, ed., The Bill of Rights: A Documentary History, Volume II (New York: Chelsea House/McGraw-Hill, 1971), 1203.
In the case: District of Columbia v. Heller, 554 U.S. 570 (2008).
An iconic photo of Dodge City: Adam Winkler, Gun Fight: The Battle over the Right to Bear Arms in America (New York: Norton, 2011), 165.
Chief Justice Warren Burger: Charlayne Hunter-Gault, The NewsHour with Jim Lehrer: Interview with Warren Burger (Alexandria: PBS Video, 1991).
Justice Robert Jackson: Brown v. Allen, 344 U.S. 443 (1953).
CHAPTER ONE: PATRIOTS’ DAY
They would seek to arrest: For the authoritative description of Paul Revere’s ride, see David Hackett Fischer, Paul Revere’s Ride (New York: Oxford University Press, 1995). For a survey of the British troops and the town of Boston, see Robert Middlekauff, The Glorious Cause: The American Revolution, 1763–1789 (New York: Oxford University Press, 1982), 297.
The Second Amendment Page 20