Tuesday, May 27, 2014
What Did the Framers Really Intend?
I hope that New York Times columnist Joe Nocera wins a Pulitzer Prize someday for all his hard work regarding gun violence in the United States. Here is his column published on May 26, 2014.
Three days after the publication of Michael Waldman’s new book, “The Second Amendment: A Biography,” Elliot Rodger, 22, went on a killing spree, stabbing three people and then shooting another eight, killing four of them, including himself. This was only the latest mass shooting in recent memory, going back to Columbine.
In his rigorous, scholarly, but accessible book, Waldman notes such horrific events but doesn’t dwell on them. He is after something else. He wants to understand how it came to be that the Second Amendment, long assumed to mean one thing, has come to mean something else entirely. To put it another way: Why are we, as a society, willing to put up with mass shootings as the price we must pay for the right to carry a gun?
The Second Amendment begins, “A well-regulated Militia, being necessary to the security of a free State,” and that’s where Waldman, the president of the Brennan Center for Justice at the New York University School of Law, begins, too. He has gone back into the framers’ original arguments and made two essential discoveries, one surprising and the other not surprising at all.
The surprising discovery is that of all the amendments that comprise the Bill of Rights, the Second was probably the least debated. What we know is that the founders were deeply opposed to a standing army, which they viewed as the first step toward tyranny. Instead, their assumption was that the male citizenry would all belong to local militias. As Waldman writes, “They were not allowed to have a musket; they were required to. More than a right, being armed was a duty.”
Thus the unsurprising discovery: Virtually every reference to “the right of the people to keep and bear Arms” — the second part of the Second Amendment — was in reference to military defense. Waldman notes the House debate over the Second Amendment in the summer of 1789: “Twelve congressmen joined the debate. None mentioned a private right to bear arms for self-defense, hunting or for any purpose other than joining the militia.”
In time, of course, the militia idea died out, replaced by a professionalized armed service. Most gun regulation took place at the state and city level. The judiciary mostly stayed out of the way. In 1939, the Supreme Court upheld the nation’s first national gun law, the National Firearms Act, which put onerous limits on sawed-off shotguns and machine guns — precisely because the guns had no “reasonable relation” to “a well-regulated militia.”
But then, in 1977, there was a coup at the National Rifle Association, which was taken over by Second Amendment fundamentalists. Over the course of the next 30 years, they set out to do nothing less than change the meaning of the Second Amendment, so that its final phrase — “shall not be infringed” — referred to an individual right to keep and bear arms, rather than a collective right for the common defense.
Waldman is scornful of much of this effort. Time and again, he finds the proponents of this new view taking the founders’ words completely out of context, sometimes laughably so. They embrace Thomas Jefferson because he once wrote to George Washington, “One loves to possess arms.” In fact, says Waldman, Jefferson was referring to some old letter he needed “so he could issue a rebuttal in case he got attacked for a decision he made as secretary of state.”
Still, as Waldman notes, the effort was wildly successful. In 1972, the Republican platform favored gun control. By 1980, the Republican platform opposed gun registration. That year, the N.R.A. gave its first-ever presidential endorsement to Ronald Reagan.
The critical modern event, however, was the Supreme Court’s 2008 Heller decision, which tossed aside two centuries of settled law, and ruled that a gun-control law in Washington, D.C., was unconstitutional under the Second Amendment. The author of the majority opinion was Antonin Scalia, who fancies himself the leading “originalist” on the court — meaning he believes, as Waldman puts it, “that the only legitimate way to interpret the Constitution is to ask what the framers and their generation intended in 1789.”
Waldman is persuasive that a truly originalist decision would have tied the right to keep and bear arms to a well-regulated militia. But the right to own guns had by then become conservative dogma, and it was inevitable that the five conservative members of the Supreme Court would vote that way.
“When the militias evaporated,” concludes Waldman, “so did the original meaning of the Second Amendment.” But, he adds, “What we did not have was a regime of judicially enforced individual rights, able to trump the public good.”
Sadly, that is what we have now, as we saw over the weekend. Elliot Rodger’s individual right to bear arms trumped the public good. Eight people were shot as a result.