In Michael Waldman's lauded new book, The Second Amendment: A Biography, the president of the Brennan Center for Justice at New York University makes a strange error. The first Supreme Court decision to establish the now-ruling interpretation of a constitutional amendment, most would agree, is an important moment in that amendment's life story, something its biographer should trouble himself to understand.
Yet in Waldman's merely two sentences explaining what was at issue in the case that has defined the modern meaning of the Second Amendment, 2008's District of Columbia v. Heller (I wrote the biography of that case, Gun Control on Trial), he seems strangely ignorant—or wants his readers to stay strangely ignorant—about exactly what law the case challenged.
He writes that the D.C. statutes overturned by plaintiff Dick Heller (and, originally, five other co-plaintiffs booted off the case on narrow procedural grounds) "barred individuals from keeping a loaded handgun at home without a trigger lock." In a later sentence he again refers merely to "the ban on loaded handguns."
This is quite off-target. The laws challenged in Heller did not merely ban the possession of a loaded handgun without a trigger lock. They banned the registration of any handgun that you hadn't already registered before the restrictive statutes went into effect in 1976. They also banned owning unregistered handguns. That means D.C. law banned handguns entirely for anyone who hadn't been grandfathered in decades before.
It was long guns, which could still be legally obtained, that had the trigger-lock requirement. In essence, D.C. had banned any usable weapon for self-defense in the home. This is what the Supreme Court said could not stand based on the Second Amendment. Six years later that's still as far as the Supreme Court has gone in authoritatively defending citizens' rights under the Second Amendment.
The style of that mistake is telling about the modern fight over gun rights: Those who advocate gun control prefer to greatly understate the importance of what's at stake, as Waldman did with Heller.
Those who believe in Second Amendment rights, in Waldman's telling, have nothing real at stake. They are just truculent dupes, fooled by NRA propaganda and a sick, scared culture into wanting, for some reason, to own guns.
As good lawyers will, Waldman argues the alternatives. While insisting the "right of the people to keep and bear arms shall not be infringed" is meaningless as constitutional law, he also insists that courts should let democratic bodies do whatever they want no matter what the Constitution says. (It's unclear whether he thinks this should apply to the First Amendment as well.)
While snarking over the lack of explicit fuss over personal weapon possession (versus questions about state militias) in the original 18th century Second Amendment debate, Waldman argues the alternative against himself inadvertently. He makes it clear, implicitly and even explicitly, that the cultural atmosphere of the Founding era made the idea that government would pass a law like the real law at issue in Heller pretty much unthinkable. It would be no more worth hashing over than, as Waldman himself quotes, Noah Webster's Founding Father snark about whether they needed to specify in the Constitution that the new government couldn't "restrain any inhabitant of America from eating and drinking."
While pretending at various points that the lack of debate over personal possession of weapons is some gotcha revelation about the original intent of the amendment (which he thinks was just to give state militias power to resist federal tyranny, which he hopes all moderns will see as not worth respecting), Waldman himself writes that "to be sure, Americans expected to be able to own a gun, just as they understood they had a right to own property." Yep, they sure did. Most still do.
One gets the impression Waldman isn't even trying to convince anyone of anything. He's just proud of his attitude, which he thinks unassailably righteous: that guns can be very dangerous, and a democratic government should be free to fight that danger by any means necessary.
In this, Waldman was an apt choice to write a popular book meant to define the modern, reasonable, liberal attitude toward gun rights. It wearies and annoys Waldman and his fellows in activism and politics that they even have to think about the Second Amendment. The real message of this book, and of modern gun controllers in general, is that nothing meaningful is at stake on the other side; that any slight chance that some gun restriction might save a life justifies it.
Waldman shows how little respect he has for those who believe in the right to self-defense that he blithely tosses out this sentence: "the notion of personal safety guaranteed only by a gun in every hand, drawn to fend off the marauding Klan, happily is past."
Replaced by what? Does Waldman not understand that if the right of self-defense means anything in a world in which guns exist and will continue to, that it means the right to own a gun needs to be respected? Does he actually believe that something in the world has changed that means that everyone is now safe from assault and armed self-defense is a relic? Did he read anything about the experiences of the plaintiffs in Heller and in its 2010 follow-up, McDonald v. Chicago, which extended Second Amendment protections against state and local laws?
The dilemma that Waldman and his fellow gun controllers face isn't even really about the Second Amendment, as he shows some signs of recognizing. Most challenged gun right restrictions have survived the Heller test in lower courts. The real problem for gun controllers is that democratic public opinion has, for the foreseeable future, turned firmly in the direction of respect for gun rights.
This pro-gun-rights attitude has proven resistant to even the sort of mediagenic public tragedies that those bothered by the idea of guns think should reverse our policy course. After the December 2012 Newtown massacre, for example, the Manchin-Toomey background check extension bill swiftly arose, but rightly failed.
After May's Isla Vista shootings (and stabbings), Sen. Richard Blumenthal (D-Conn.) wanted to revive bills aimed at the mentally ill, offered legislation to keep those with even temporary restraining orders against them from being able to buy guns, and leaned on retail establishments to do more to keep guns out of their stores. California legislators reacted to Isla Vista with proposed laws allowing others to decide for you that you shouldn't be able to buy a gun. After June's Las Vegas gun murder of cops in a restaurant and later citizens in a Wal-Mart, Sen. Harry Reid (D-Nev.) talked about returning to tougher background check laws—when he thinks he has the votes. (The killer in Vegas, as a felon, was already barred by background check law from legally buying guns. It didn't matter.)
Still, there is no "tough gun bill" that shows any signs of going anywhere this year. Yet the National Rifle Association (NRA), professionally required to be vigilant, not to say a little paranoid, is still worried. As NRA spokesman Andrew Arulanandam said this week, "there is every potential for bills to be resurrected….it provides false comfort by saying, oh a standalone bill on background checks [isn't happening this year]. Every single gun control scheme and concept is alive and well. In the words of Sen. Feinstein, she conceded after Newtown that she had an anti-gun bill in her drawer waiting to be dusted off."
Most of the currently circulating gun access restriction bills would likely survive a Heller-based challenge, as long as they stayed restricted to classes a judge could argue falls into the categories of exceptions Justice Scalia explicitly spelled out in Heller. But they also wouldn't actually do much, in almost every case, to prevent any gun tragedy. All they would do would be to keep citizens who have committed no crime from access to the best means for self-defense. Despite the NRA's repeated attempts in the face of various "obvious lunatics" killing people with guns to change the subject from weapons to nutcases, an increased focus on mental health would not likely have any effect on most gun tragedies either.
Guns are a big deal. They are a big deal to those who have real reasons to hate and fear the evil acts that they can facilitate. And they are a big deal to those who, in a dangerous world, want the ability to defend themselves by the best means available. Barring certain people in certain categories from access to guns—when there is no reason to believe that denial would do any good—shouldn't even pass a basic public policy interest-balancing test, never mind be allowed to stand under the Second Amendment.
Waldman concludes his book inadvertently revealing the dilemma of the modern gun controller, whether scholar, activist, or politician. He praises those courts who "prudently intervene on behalf of those who need their protection, and who cannot get it through the normal political processes," who in so doing "immeasurably strengthen the country."
The irony escapes him that that's exactly how Dick Heller and Otis McDonald saw their struggle, and their victory—and that most Americans agree. While their self-image doesn't permit them to see it, Waldman and the politicians and activists fighting a rearguard action against the salutary progress in our understanding of rights represented by Heller are roadblocks to justice. Reactionaries of that ilk, one hopes, will fade sooner than later into our nation's dark past.
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