The Second Amendment: A Biography

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Overview

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...

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Overview

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.

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Editorial Reviews

The New York Times Book Review - Craig R. Whitney
Waldman's readable, often chatty, thoroughly documented recounting of the Second Amendment's history shows it changing in character as American society changed.
Decatur Daily (Alabama)
“Anyone interested in the hot button issue of guns and their place in our society will find this book a helpful tool for ongoing discussion.”
Los Angeles Times
The Second Amendment is a smart history of guns and the US . . . his calm tone and habit of taking the long view offers a refreshing tonic in this most loaded of debates.”
Miami Herald
“Waldman’s detractors would do well to read the book, which focuses less on taking a position on gun control and more on explaining what the Founding Fathers intended when they approved the amendment and how subsequent decisions from the U.S. Supreme Court and elsewhere have transformed that intent. . . . Seeing the subject discussed and dissected in untypically calm, scholarly tones, then, is a refreshing development.”
New York Times
“Rigorous, scholarly, but accessible book.”
Washington Post
“Compelling”
Chicago Tribune
“An insightful look at both the historical foundation of the Second Amendment . . . a welcome re-injection of historical context into the present debate over the rightful role of guns in American culture.”
The Buffalo News
“A welcome addition to the ongoing debate over gun rights and gun control in America.”
New York Times - Nicholas Kristoff
“Terrific”
Booklist
“Waldman offers historical perspective on the fierce debate…A lively and engaging exploration.”
Joseph J. Ellis
“The ongoing debate about the Second Amendment and the right to bear arms continues to set off multiple explosions in the blogosphere. Waldman's new book will not make the most zealous NRA advocates happy, but for anyone who wants his or her history of the Second Amendment straight-up, this is the most comprehensive, accessible, and compelling version of the story in print.”
Marcia Coyle
“From the founding of the Republic to the Newtown massacre of elementary school children, and beyond, Michael Waldman vividly portrays the evolution of a nation's passionate debate over the right to keep and bear arms. Activist, conservative justices on the U.S. Supreme Court may have thought they ended that debate in 2008, but with rich detail and crisp narrative, Waldman shows how it continues to reverberate across the landscape with important lessons for all Americans.”
David Frum
“Through most of American history, the Second Amendment guaranteed the right to be a citizen-soldier, not an individual vigilante. With wit and erudition, Michael Waldman tells the story of how the Amendment’s meaning was turned upside-down and inside-out.”
Jack Rakove
“Michael Waldman gives us the turbulent life story of the Second Amendment. If one clause of the Constitution better deserved a quiet retirement, it is our right to keep and bear arms, a vestige of the Founding Fathers' concern with the role of the militia in a republican society. Yet today the Second Amendment has become one of the feistiest, most disputed clauses of the Constitution, and Waldman vividly explains why this obscure, minor provision has become so controversial.”
Sean Wilentz
“Partisan pseudo-histories of gun regulation and the Second Amendment abound. Michael Waldman's excellent book slices through the propaganda with candor as well as scholarship. It advances an authentic and clarifying history that will surprise and enlighten citizens on all sides of the issue. Here is a smart and cogent history that performs a large public service.”
Kirkus Reviews
2014-04-14
A review of the evolving meaning of the Second Amendment, a single sentence fraught with emotional controversy.Interpretation of the Second Amendment has always been clouded by its prefatory clause, "A well-regulated militia, being necessary to the security of a free state...." Attorney Waldman (Brennan Center for Justice/NYU Law; Return to Common Sense: Seven Bold Ways to Revitalize Democracy, 2008, etc.) draws on extensive historical research to argue that the amendment's purpose was to ensure that the new federal government could not interfere with the states' rights to maintain local militias as a counterweight to a national standing army; it was never intended to recognize the right of an individual to own a firearm. This was the prevailing consensus among legal scholars through the 20th century. Beginning around 1975, however, the National Rifle Association, Republican politicians and an increasing number of legal commentators pressed for a re-evaluation, culminating in 2008 when the Supreme Court held that the amendment did imply such a right in District of Columbia v. Heller, an opinion the author excoriates, along with the entire concept of "originalist" constitutional interpretation. Up to this point, the author's "biography" of the amendment is sober and sound, but it then descends into all-too-familiar partisan lamentations about the difficulties of imposing further gun controls in the post-Heller era, in spite of his recognition that gun ownership and violence have been declining for decades and that almost all Heller-based challenges to existing gun control statutes have failed. In an era in which militias have long passed into history, Waldman seems to reluctantly accept that the Second Amendment now reflects the fact that "the widespread acceptance of some form of gun ownership is part of the way Americans think." He calls on activists to change that perception in order to change the law.This thoughtful, accessible survey of Second Amendment law will be useful to anyone arguing either side of this endlessly controversial issue.
Library Journal
04/15/2014
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
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Product Details

  • ISBN-13: 9781476747446
  • Publisher: Simon & Schuster
  • Publication date: 5/20/2014
  • Pages: 272
  • Sales rank: 48,567
  • Product dimensions: 6.50 (w) x 9.40 (h) x 1.10 (d)

Meet the Author

Michael Waldman

Michael Waldman is president of the Brennan Center for Justice at NYU School of Law, a 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 and is the author of My Fellow Americans, POTUS Speaks, and three other books. Waldman is a graduate of Columbia College and NYU School of Law. He comments widely in the media on law and policy.

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Read an Excerpt

The Second Amendment


  • 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.

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Customer Reviews

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Sort by: Showing all of 4 Customer Reviews
  • Anonymous

    Posted July 2, 2014

    It's time we stopped supposing and guessing and got the real tru

    It's time we stopped supposing and guessing and got the real truth on the history of this amendment that so many presume to know the meaning of.  I am sure the gun nuts will pack this space with negative reviews while not actually ever bothering to read the book, but I do hope lawmakers read this book and use the knowledge to make some useful laws to make gun ownership safer for all of us.  This detailed history is most interesting!

    3 out of 3 people found this review helpful.

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  • Anonymous

    Posted June 30, 2014

    Good book

    Excellent read for anyone wanting to delve into the nuts and bolts of the 2nd amendment. I can see some of the gun lobby would not like this book.

    2 out of 4 people found this review helpful.

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  • Anonymous

    Posted June 16, 2014

    Garbage. He uses the recent tragedies to further his own narrow

    Garbage. He uses the recent tragedies to further his own narrow minded opostion to the United States Constitution.

    2 out of 18 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted July 16, 2014

    No text was provided for this review.

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