A fascinating, beautifully written 2014 piece by Michael Waldman, the President of the Brennan Center, reproduced today given what happened in Vegas.
When I say, “beautifully written,” I mean it reads like a real-life thriller with historical sweep. It is adapted from Waldman’s book, The Second Amendment: A Biography.
The Second Amendment consists of just one sentence: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
One [of James Madison’s proposed 17 amendments] addressed the “well regulated militia” and the right “to keep and bear arms.” We don’t really know what he meant by it. At the time, Americans expected to be able to own guns, a legacy of English common law and rights. But the overwhelming use of the phrase “bear arms” in those days referred to military activities.
Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia.
Waldman then gives a concise history of the NRA and how it was taken over in the 1970s by ferocious gun-toters, leading up to:
Today at the NRA’s headquarters in Fairfax, Virginia, oversized letters on the facade no longer refer to “marksmanship” and “safety.” Instead, the Second Amendment is emblazoned on a wall of the building’s lobby. Visitors might not notice that the text is incomplete. It reads:
“.. the right of the people to keep and bear arms, shall not be infringed.”
The first half—the part about the well regulated militia—has been edited out.
“Edited out” is one of the sleazy techniques of the “legal scholars” who have come up with what they would call the intellectual foundation of “libertarianism.”
I noticed this technique when I read the Volokh Conspiracy’s many, many accusatory projections against Nancy MacLean and her just-published history, Democracy in Chains. The Conspirators accuse her of editing quotes in her meticulously researched history of the “libertarian” movement. Methinks the “libertarian” gentlemen protest way too much. And I remind them that, “people who look behind closed doors are often found hiding there themselves.”
And here’s Waldman on when so-called legal scholars began to twist the meaning of the Second Amendment:
From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amendment concluded it did not guarantee an individual right to a gun. The first to argue otherwise, written by a William and Mary law student named Stuart R. Hays, appeared in 1960. He began by citing an article in the NRA’s American Rifleman magazine and argued that the amendment enforced a “right of revolution,” of which the Southern states availed themselves during what the author called “The War Between the States.”
Uh, do I have to invoke the word “racism” here? I don’t think so; I think you picked up on this: the raison d’être of the gun nuts is racism.
At first, only a few articles echoed that view. Then, starting in the late 1970s, a squad of attorneys and professors began to churn out law review submissions, dozens of them, at a prodigious rate. Funds—much of them from the NRA—flowed freely…In 2003, the NRA Foundation provided $1 million to endow the Patrick Henry professorship in constitutional law and the Second Amendment at George Mason University Law School.
If one delves into the claims these scholars were making, a startling number of them crumble. Historian Jack Rakove, whose Pulitzer-Prize winning book Original Meanings explored the founders’ myriad views, notes, “It is one thing to ransack the sources for a set of useful quotations, another to weigh their interpretive authority… If Americans has indeed been concerned with the impact of the Constitution on this right … the proponents of individual right theory would not have to recycle the same handful of references … or to rip promising snippets of quotations from the texts and speeches in which they are embedded.”
And there were plenty of promising snippets to rip. There was the ringing declaration from Patrick Henry: “The great object is, that every man be armed.”…The Second Amendment professorship at George Mason University is named after Henry. A $10,000 gift to the NRA makes you a “Patrick Henry Member.”
The quote has been plucked from Henry’s speech at Virginia’s ratifying convention for the Constitution in 1788. But if you look at the full text, he was complaining about the cost of both the federal government and the state arming the militia. (“The great object is, that every man be armed,” he said. “At a very great cost, we shall be doubly armed.”) In other words: Sure, let every man be armed, but only once! Far from a ringing statement of individual gun-toting freedom, it was an early American example of a local politician complaining about government waste. [My bolding]
“‘One loves to possess arms’ wrote Thomas Jefferson, the premier intellectual of his day, to George Washington on June 19, 1796.” What a find! Oops: Jefferson was not talking about guns. He was writing to Washington asking for copies of some old letters, to have handy so he could issue a rebuttal in case he got attacked for a decision he made as secretary of state. The NRA website still includes the quote. You can go online to buy a T-shirt emblazoned with Jefferson’s mangled words.
And here’s a mocking refutation of Antonin Scalia’s “brilliance:”
Some of the assumptions were simply funny. In his book on judicial philosophy, Supreme Court Justice Antonin Scalia, for example, lauded Professor Joyce Lee Malcolm’s “excellent study” of English gun rights, noting sarcastically, “she is not a member of the Michigan Militia, but an Englishwoman.” But a historian fact-checked the justice: “Malcolm’s name may sound British, and Bentley College, where Malcolm teaches history, may sound like a college at Oxford, but in fact Malcolm was born and raised in Utica, New York, and Bentley is a business college in Massachusetts.”
The great (dead) judicial hero of “libertarians” didn’t bother to check his facts. Or maybe he did, and did not find them useful so just ignored them. Whichever, posthumous shame, shame on Scalia.
The argument presented in District of Columbia v. Heller showed just how far the gun rights crusade had come. Nearly all the questions focused on arcane matters of colonial history. Few dealt with preventing gun violence, social science findings or the effectiveness of today’s gun laws—the kinds of things judges might once have considered…
After the decision was announced, Heller stood on the steps of the court for a triumphant press conference. Held aloft behind him was a poster bearing that [truncated and misinterpreted] quote from Patrick Henry, unearthed by the scholars who had proven so important for the successful drive: “Let every man be armed.”
But Waldman brings hope. I’ve bolded the most stirring part:
Improbably, the gun movement’s triumph has become a template for progressives, many of whom are appalled by the substance of the victories...One lesson: patience. The fight for gun rights took decades. Another lesson, perhaps obvious: There is no substitute for political organizing.
But even more important is this: Activists turned their fight over gun control into a constitutional crusade. Modern political consultants may tell clients that constitutional law and the role of the Supreme Court is too arcane for discussion at the proverbial “kitchen table.” Nonsense. Americans always have been engaged, and at times enraged, by constitutional doctrine. Deep notions of freedom and rights have retained totemic power.
Now many democracy activists, mortified by recent Supreme Court rulings in campaign finance cases (all with Heller’s same 5-4 split), have begun to map out a path to overturn Citizens United and other recent cases. Years of scholarship, theorizing, amicus briefs, test cases and minority dissents await before a new majority can refashion recent constitutional doctrine.
Molding public opinion is the most important factor. Abraham Lincoln, debating slavery, said in 1858, “Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.” The triumph of gun rights reminds us today: If you want to win in the court of law, first win in the court of public opinion.