By Michael Waldman. Simon & Schuster, 224 pages, $24.
Reviewed by Jules Wagman
In writing a concise history of the Second Amendment, Michael Waldman, president of the Brennan Center for Justice at New York University, attempts to show that the Supreme Court was wrong in 2008 when it struck down the District of Columbia’s strict gun control law.
Waldman’s point, iterated and reiterated, is that the Second Amendment’s opening clause, “A well regulated militia, being necessary to the security of a free state,” limits the right to bear arms.
The first portion of Waldman’s book sifts through the colonial roots of militias and is worth studying.
The trouble with Waldman’s view is that the Supreme Court, by a 5-4 decision, held that the amendment’s operative language is at its end in “the right of the people to keep and bear arms, shall not be infringed.” Author of the majority opinion was Associate Justice Antonin Scalia and “It remains Scalia’s most important majority opinion.”
Under the legal and political system of our country, what the Supreme Court says the law means is what counts. That has been the law of the land since 1803 when Chief Justice John Marshall claimed ultimate supremacy for Supreme Court decisions.
Scalia’s opinion says in part, “Like most rights, the right secured by the Second Amendment is not unlimited…[C]ourts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings…”
In the main, Waldman stays on an even keel, giving both sides careful attention. But he falls off the wagon discussing Heller, the case in which the Court struck down the D.C. gun law. “After all, the Framers added the Second Amendment to the Constitution not because they solemnly believed it necessary, but as…a concession to popular discontent.”
To back up his argument, Waldman quotes conservative federal appeals court Judge J. Harvie Wilkinson III: “After decades of criticizing activist judges for this or that defalcation, conservatives have now committed many of the same sins.”
Wilkinson adds, “The Constitution’s text has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy”, the medical methodology used by Justice Harry Blackmun in the landmark abortion rights case Roe v. Wade.
Waldman scoffs at Scalia’s “originalism” as being a false doctrine and quotes Scalia from an article he published two years after joining the Court. Scalia, Waldman declares, called himself a “faint-hearted originalist” who characterizes originalism as “the lesser evil.”
Waldman calls Scalia’s Heller opinion “emphatically an opinion focused on a closely parsed text.” He writes that Scalia ignores the prefatory clause which was “so important to the Framers.” Instead, “Scalia simply lopped off the first half of the amendment” as does the National Rifle Association in emblazoning the amendment on the walls of the NRA headquarters lobby.
Later, Waldman writes, “Scalia shrank from writing solely based on the original intent of the Framers.” And, ”Even in these writings, Scalia never quite got around to explaining why the original intent of the Framers was the guidepost to follow.”
Waldman’s study won’t change anyone’s mind, but the first portion of his book, which sifts through the colonial roots of militias is worth studying.
Jules Wagman has been reviewing books since 1966.
©2014 by Jules L. Wagman
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