Every time another instance of gun violence occurs in this country, fervent gun rights backers trot out the Second Amendment as undeniable proof that Americans are entitled to own and use guns. Guns don’t kill people, they say – people kill people.
A new book makes the case for understanding the complicated history of the Second Amendment, from its original creation to its current interpretation – divisive as this may be, as school shootings and other acts of gun violence continue.
The Second Amendment says, in full: “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.” It was only in 2008, in D.C. v. Heller, that the Supreme Court ruled the Second Amendment applied to an individual’s right to own a gun.
“When you look at the history of the country and how this small provision in the Constitution has been interpreted, we really view it differently in different eras,” Michael Waldman, author of The Second Amendment: A Biography, said in an interview. “What we see in the Second Amendment has so much to do with our view of the role of government, of how we balance gun rights against public safety and the common good. This amendment has always been the product not of some pristine original understanding, but of the push and pull of politics and of public debate.”
The most recent school shooting has again thrown this “push and pull” into harsh relief. At a Christian college outside Seattle last week, 26-year-old Aaron Ybarra shot and killed one college student and wounded three others before being subdued. His lawyer said that Ybarra suffers from “significant and longstanding mental health issues.” The incident has once again sparked discussion about the need for better gun safety laws and restrictions in this country – something President Obama, after the Newtown school shootings, tried to enact but could not.
Waldman, president of the Brennan Center for Justice at NYU School of Law, served as President Bill Clinton’s director of speechwriting from 1995 to 1999. The Fiscal Times spoke with him about the Second Amendment.
The Fiscal Times (TFT): What propelled you to write a “biography” of this amendment now?
Michael Waldman (MW): What we see in the Second Amendment has so much to do with our view of the role of government, of how we balance rights against public safety.
The Second Amendment, as was true of the other amendments, grew out of a big debate over the Constitution and the fear of many Americans that the Constitution would create an over-powerful central government, which would crush the 13 state militias made up of citizen soldiers bringing their guns from home.
So even then, it was the product of a debate. I believe it's very, very hard to draw useful instructions from the founders about how we ought to regard the Second Amendment today. The time was so different. We can’t go back in time and tap James Madison on the shoulder and ask him what to do, as we might wish to.
TFT: What do you foresee on this issue as 2016 looms ahead?
MW: The NRA has achieved what it has achieved through decades of skilled organizing at the ballot box and with public opinion as well as in the courts. People who want different types of gun laws are not going to be able to achieve that overnight. There needs to be organizing, and public argument, to achieve change.
Having said that, most of the kinds of gun safety laws that would have the biggest impact are pretty plainly constitutional, even under the current doctrine of the Supreme Court. The Heller case of 2008 was the first time the court ruled that there was an individual right to gun ownership. It was all dressed up in saying it was following the signers’ original intent, but it actually said: Well, there’s an individual right – but there could be limits on that right, just as there are on other rights.
It left mostly unsaid what those limits were. Dozens of court rulings since then have overwhelmingly upheld the gun laws. So yes, there’s an individual right, but there’s also a stronger interest in public safety. We can balance those. In the end, I don’t think the Second Amendment is an obstacle to common-sense gun laws.
TFT: Yet you have strong feelings about why the bipartisan background check proposal of last year failed. Why?
MW: Manchin-Toomey had the support of something like up to 90 percent of the public at the polls – and was filibustered. But you still had a majority of senators who supported it.
The problem was not lack of public will or the Second Amendment – it was the Senate filibuster rules. A majority of senators voted for it, but a minority were able to block it. Of course, it would have had to pass in the House as well. So it’s politics – and it’s the court of public opinion that turned out to be more important than any court of law. Some [gun safety ideas] pose a real possibility of making a difference. I just hope that Second Amendment fundamentalism doesn’t get in the way.
TFT: You point out that gun violence is down in this country.
MW: It’s higher than in the rest of the world, but yes, crime and gun crime is dropping in the U.S. Nobody’s entirely sure why. But in a way, it does offer the chance of making it less of an intense debate in the future.
TFT: The disconnect is that each new occurrence of mass shootings raises renewed fears about easy access to guns by those who are not meant to have or use these weapons.
MW: The shootings are obviously horrific and terrible. But we need a better mental health system. One aspect of that is making sure that people who are dangerous don’t get access to guns.
TFT: You don’t, overall, believe that the courts are the place these and other issues should be decided, though.
MW: For all the intense debate over it, what the Second Amendment means today is up to all of us. It’s not etched in stone. It shouldn’t be up to the courts – it’s something for the people to decide, as the Constitution said. It’s up to each generation to figure out how to make it work.
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