THE SECOND AMENDMENT

A review of the evolving meaning of the Second Amendment, a single sentence fraught with emotional controversy.

Interpretation of the Second Amendment has always been clouded by its prefatory clause, "A well-regulated militia, being necessary to the security of a free state...." Attorney Waldman (Brennan Center for Justice/NYU Law; Return to Common Sense: Seven Bold Ways to Revitalize Democracy, 2008, etc.) draws on extensive historical research to argue that the amendment's purpose was to ensure that the new federal government could not interfere with the states’ rights to maintain local militias as a counterweight to a national standing army; it was never intended to recognize the right of an individual to own a firearm. This was the prevailing consensus among legal scholars through the 20th century. Beginning around 1975, however, the National Rifle Association, Republican politicians and an increasing number of legal commentators pressed for a re-evaluation, culminating in 2008 when the Supreme Court held that the amendment did imply such a right in District of Columbia v. Heller, an opinion the author excoriates, along with the entire concept of "originalist" constitutional interpretation. Up to this point, the author's "biography" of the amendment is sober and sound, but it then descends into all-too-familiar partisan lamentations about the difficulties of imposing further gun controls in the post-Heller era, in spite of his recognition that gun ownership and violence have been declining for decades and that almost all Heller-based challenges to existing gun control statutes have failed. In an era in which militias have long passed into history, Waldman seems to reluctantly accept that the Second Amendment now reflects the fact that "the widespread acceptance of some form of gun ownership is part of the way Americans think.” He calls on activists to change that perception in order to change the law.

This thoughtful, accessible survey of Second Amendment law will be useful to anyone arguing either side of this endlessly controversial issue.