Legal expert reveals surprising history of the Second Amendment

While most Americans think the Second Amendment to the Constitution guarantees the right to gun ownership, Michael Waldman reveals otherwise.

Waldman, president of the Brennan Center for Justice at New York University School of Law, studied the history and politics surrounding the now-hotly debated amendment for his book, “The Second Amendment: A Biography” (Simon & Schuster, 2015), and even he was surprised at what he learned: the U.S. has a long history of gun control. 

“People are often startled to learn that the Supreme Court of the United States never ruled until 2008 that gun ownership is an individual right,” said Waldman, who wrote the book in response to the 2012 shooting at Sandy Hook Elementary School in Newtown, Conn., that killed 20 children and six adults. 

That 5-4 ruling in the case of the District of Columbia vs. Heller “bitterly divided” the justices, said Waldman, and seemed to fly in the face of judicial history. The ruling, written by Justice Antonin Scalia, was based on the concept of originalism, meaning it centered on what he thought was the original intent of the framers of the Constitution, said Waldman. 

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However, as recently as 1991, former Chief Justice Warren Burger, a conservative, said that thinking the Second Amendment guaranteed the right to gun ownership was “a fraud on the public,” according to Waldman, the keynote speaker at the 12th biannual Gertrude and Milton Kleinman Consultation on Conscience held May 6 at Anshe Emeth Memorial Temple in New Brunswick. 

“What changed was the NRA (National Rifle Association),” which installed in 1977 new leadership to move the organization from its longtime role representing sportsmen and hunters to one that would turn gun ownership into a civil rights issue centering on the Second Amendment, said Waldman. 

According to Waldman, that laid the groundwork for a decades-long campaign to sway public opinion, influence politicians, and bring court challenges culminating in the 2008 decision that secured gun ownership for individuals. 

Waldman, a former speechwriter for President Bill Clinton, has been president since 2005 of the Brennan Center — established in honor of Justice William Brennan — a nonpartisan law and policy institute focusing on improving the systems of democracy and justice. 

The Kleinman program — described as a celebration of ethics and morality — was established by the children in honor of their parents.

“My parents exemplified lives of conscience and taught their five children and grandchildren to speak their minds and raise their voices and never accept tyranny,” Toby Kleinman told the 200 audience members. “We were taught to fight back, to speak the truth.”

The morning program also featured a panel of three local Jewish mayors — Gayle Brill Mittler of Highland Park, Brad Cohen of East Brunswick, and Jonathan Busch of Metuchen — discussing local issues from holding the line on property taxes to protecting the local immigrant community.

In introducing the program, Rabbi Bennett Miller said, “If there was ever a time we need a consultation on conscience it is now in this time of great chaos and uncertainty in our country, where we don’t know where the moral compass of Congress is pointing…where we don’t know where democracy is going in the coming years.”

Waldman said the 27-word Second Amendment, the shortest in the Constitution, was written at a post-Revolutionary War time when there was a weak federal government, support for state rights, and distrust of a strong centralized military.

Local militias were viewed as “the bulwark against tyranny,” said Waldman, and every white male between the ages of 16-65 was required to be in a militia and keep a gun at home in case of call-up. 

The amendment reads, “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.”

Interestingly, the NRA has the Second Amendment written on a wall of its Fairfax, Va., headquarters, said Waldman, but reference to the militia is omitted.

Waldman pointed out that while the historic debate focused on militias, the amendment says nothing about the rights of hunters or ownership of guns by individuals.

“It was written for a different time when there was universal conscription,” he said, adding, “While we can’t go back in a time machine” to know what the Founding Fathers were thinking, there were some clear indicators they saw no conflict in enacting some safety regulations.

In the nation’s early days, Boston banned residents from keeping loaded weapons in their homes because “they had a tendency to blow up.” In 1824, the board of regents of the University of Virginia, whose membership included James Madison and Thomas Jefferson, banned “guns and swords” from campus for student safety. 

Waldman said gun regulations continued to be enacted throughout American history and were upheld by the courts.

However, the NRA “backed a lot of real and pseudo-scholarship,” said Waldman. “They got regulations invalidated, but not only that, they worked to change public opinion” and that is a powerful weapon, according to Waldman, who said, “We all know the battle will be waged and won in the court of public opinion.” 

After decades of carefully planned strategy, the NRA mounted a successful challenge against strict District of Columbia gun laws that resulted in the 2008 Supreme Court decision. 

Despite that ruling, courts have continued to uphold gun safety laws; Waldman pointed out that New Jersey’s 1990 ban on assault weapons has withstood legal challenge. 

“We all know the strength of the NRA, but we all know something new is happening.”

That something is the groundswell of young people inspired by students from Marjory Stoneman Douglas High School in Parkland, Fla., who survived the mass shooting in February and have staged protests across the country demanding gun control. 

Waldman said it is not yet known if the young people will turn out to vote in large numbers and sway future elections, but their movement, and the backlash created by the recent spate of mass shootings, has brought an acknowledgment that sensible regulations need to be instituted. 

“We can do something about it,” said Waldman. “All we need is the political will and the political conscience. That is the answer, not the courts.”