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  CONTENTS

  Introduction

  PART ONE

  ONE: Patriots’ Day

  TWO: Ratification

  THREE: The Tub to the Whale

  FOUR: Arkansas Toothpicks, Beecher’s Bibles, and the Fourteenth Amendment

  PART TWO

  FIVE: Revolt at Cincinnati

  SIX: Contest for the Constitution

  SEVEN: The Road to Heller

  PART THREE

  EIGHT: From Heller to Sandy Hook

  NINE: Flying Blind

  CONCLUSION: “The Right of the People”

  Acknowledgments

  A Note on Sources

  About Michael Waldman

  Notes

  Index

  To my family

  INTRODUCTION

  On March 1, 1792, Secretary of State Thomas Jefferson issued a terse announcement. Congress had established the post office. It had passed a new law governing fisheries. And the states had ratified the first ten amendments to the Constitution: the Bill of Rights.

  Jefferson’s deadpan proclamation belied years of drama and conflict. The amendments were the product of a fierce debate over government’s role and the rights of the people, one that unfolded since the start of the American Revolution. Even today, Americans know some parts of the Bill of Rights by heart. We cherish the First Amendment, with its guarantee of freedom of religion, speech, and the press. We debate the Fourth Amendment, with its requirement for a search warrant. All know about the right to avoid self-incrimination (“taking the Fifth”).

  For two centuries, however, the Second Amendment received little notice. Few citizens understood its provisions. Scholars paid it little attention. Lawyers rarely raised it in court. In recent years, of course, the Second Amendment has been thrust to the center of controversy. Politicians declare themselves its “strong supporters.” News reports speculate about gun laws and whether they will pass muster. It has become a synonym, in powerful unspoken ways, for America’s gun culture.

  The Second Amendment is one sentence. It reads in its entirety:

  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.

  Its foggy wording and odd locution stand out in the Constitution. Lawyers and scholars debate its commas and clauses. For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard. Then, in 2008, the U.S. Supreme Court upended two centuries of precedent. In the case of District of Columbia v. Heller, an opinion written by Justice Antonin Scalia declared that the Constitution confers a right to own a gun for self-defense in the home. That’s right: the Supreme Court found there to be an individual right to gun ownership just a few years ago. Now, when we debate gun control we do so in the context of a Supreme Court ruling that limits what we can do (though we don’t yet know how much).

  Far from a dry set of words scratched on parchment, then, it turns out that the story of the Second Amendment can tell us much about how our country has changed and grown, how we see ourselves and our government, how we balance the rights of individuals and the need for safety.

  Part One of this book begins in the tumultuous years of the American Revolution and its aftermath. The Constitution was drafted in secret by a group of mostly young men, many of whom had served together in the Continental Army, and who feared the consequences of a weak central authority. They produced a charter that shifted power to a national government. “Anti-Federalists” opposed the Constitution. They worried, among other things, that the new government would try to disarm the thirteen state militias. Critically, those militias were a product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age sixteen to sixty was enrolled. He was required to own—and bring—a musket or other military weapon.

  Debate still burns about the Framers’ intent and the original meaning of the Constitution. Surprisingly, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention. Nor with scattered exceptions in the records of the ratification debates in the states. Nor on the floor of the U.S. House of Representatives as it marked up the Second Amendment. James Madison’s original proposal, in fact, included a provision for conscientious objectors.

  People ask: who is right? Did the Second Amendment protect militias, or an individual right to a gun? The answer: both, and neither. It protected the individual right to a gun . . . to fulfill the duty to serve in a militia. To the Framers, even our question would make little sense. To us, today, their answer makes little sense.

  As the nation spread west, guns grew abundant. (After all, one of those young Constitution writers, Alexander Hamilton, was killed in a duel!) In the years immediately following the Civil War, the authors of the Fourteenth Amendment wanted to make sure that former slaves could arm themselves to protect against organized violence from white vigilantes. But gun control laws were prevalent, too. An iconic photo of Dodge City—that legendary frontier town—shows a sign planted in the middle of its main street: “The Carrying of Fire Arms Strictly Prohibited.” In the twentieth century, Americans demanded a stronger government as they surged into crowded cities. Amid Prohibition and the Depression, modern gun control laws sought to rein in gangsters and the heat they packed. And, again, the courts stayed out. Chief Justice Warren Burger—a rock-ribbed conservative appointed by Richard Nixon—articulated the consensus when he called the idea of individual gun rights in the Constitution a preposterous “fraud.”

  Part Two tells the story of how that changed: how a remarkable, concerted legal campaign toppled two centuries of precedent.

  One thread, of course, is the rise of the National Rifle Association. The group brags of its ballot box victories. Starting in the 1970s, the organization also quietly—but emphatically—backed a jurisprudential campaign to enshrine gun rights in the Constitution. Its legal allies insisted that for two centuries judges simply got it wrong. They managed to persuade a substantial part of the public, and after that the courts. The road to Heller was paved by one of history’s most effective, if misleading, campaigns for constitutional change.

  Heller shows something more: how a generation of conservative judges and scholars transformed the way we interpret the Constitution. “Originalism” asserts that the only legitimate way to interpret a constitutional provision is to ask what the Constitution meant at the time it was enacted, in the late 1700s. Its influence has peaked in the Supreme Court led by John Roberts. He assigned Scalia the 2008 gun case. Lawyers arguing before the Supreme Court now brandish obscure historical texts like graduate students defending a particularly opaque dissertation. This section will suggest that reverence for the “text” can be just a pretext for a particular political view.

  What now? Part Three will trace Heller’s impact as we struggle again to curb gun violence. As before, spasms of violence spur calls for new laws. (Today, we are sickened by massacres such as the one in Newtown, Connecticut, rather than the political assassinations that prompted action before.) This is the first time, though, that Americans have debated firearm safety proposals with an individual right to own a gun enshrined in the Constitution. Will new doctrine deflect new laws? Will we all have the right to carry a weapon and stand our ground? We will examine the cases since Heller,
and find a surprise: despite the hoopla surrounding the case, courts upheld nearly all gun rules. Individuals have a right to a gun, judges have found, but society has a right to protect itself, too. Yet that assumption may be premature. As Justice Robert Jackson said, the Supreme Court is not final because it is infallible, but infallible because it is final. Inevitably the Court will speak again. But the High Court’s imprimatur has given new strength to Second Amendment fundamentalism. Increasingly the debate over guns resembles less a contest over crime policy, and more a culture war over core values.

  Through it all, we see how the great themes of American history rise and recur: the role of government. Race. Freedom. The singular power of the Supreme Court. Most strikingly, the fact that our view of the Second Amendment is set, at each stage, not by a pristine constitutional text, but by the push-and-pull, the rough-and-tumble of political advocacy and public agitation.

  But first, we should start by understanding why we have a Second Amendment in the first place. That story begins in the heat of revolution, sixteen miles outside Boston.

  PART

  ONE

  ONE

  Patriots’ Day

  On April 18, 1775, Boston was an occupied city. Ringed with checkpoints and sentries, jammed with imperial troops of the world’s strongest army, the town of sixteen thousand was swollen with five thousand British soldiers. It was also latticed with spies and revolutionary committees. That afternoon, word came from several sources: the British regulars would march the next day. Dr. Joseph Warren, a Patriot organizer, hurried to verify this with the rebels’ best-placed informant, presumed by historians to be the American wife of British general Thomas Gage. She confirmed: the army regulars would leave town that night. They would cross the Back Bay, and march through the villages outside Boston. They would seek to arrest John Hancock and Samuel Adams, two garrulous Patriot leaders, in hiding in the countryside.

  Most important, the British would come for the colonists’ guns: the store of gunpowder, cannons, and weaponry carefully stored by the local militia in the town of Concord, sixteen miles northwest of Boston. Because weapons rusted easily at home, and because black powder could easily explode, the colonists kept arms in a common area, easily accessible to the militia for drilling and use.

  We know of the ride that night of the silversmith Paul Revere: the lighting of two lanterns on the steeple of North Church. (An Anglican church, so a dissident minister slipped Patriots into the steeple past the senior minister.) The trip across the Charles with muffled oars. The dash across the hills. Revere did not ride alone. In fact, he and several others set off an elaborate chain of messengers, at least thirty in all. It was known as the Lexington Alarm. When a messenger reached a village, the leaders of the town government would assemble and vote on the next steps. Some of the militias were organized as “Minute Men,” trained to muster within seconds at the sound of the alarm.

  The next morning, eight hundred British Army regulars marched two by two in resplendent red through the hills, toward the arms depot at Concord. As they advanced, they heard echoing gunfire, church bells, the sound of a countryside on alert. Militia members from the village of Lexington had gathered at one in the morning, standing guard for an hour. When the British failed to show, they repaired to a tavern. After several hours, possibly worse for wear, they heard unnerving news: the British were coming, after all. As the regulars marched past Lexington, seventy somewhat ragged men stood ready on the green. A rattled British commander rode back and forth before the rows of farmers, brandishing his sword. One witness heard him yell, “Lay down your arms, ye damned rebels.” The Americans began to straggle away. Someone, perhaps a bystander, fired a single shot. Amid confusion, the regulars gunned down eighteen colonists. Firing a victory volley and bellowing three cheers customary after a successful battle, the regulars continued their march to Concord. This time, to their astonishment, militias from across Middlesex County had streamed to the hillsides surrounding the town. The colonists repulsed the British and drove them back. As the soldiers retreated to Charlestown, militiamen assailed them on a harrowing seven-hour march.

  Today, our picture of that moment focuses on solitary individuals. The villager, roused from bed, grabbing a musket. Stodgy British troops harassed by patriotic shopkeepers defending their homes. “The farmers gave them ball for ball,” Longfellow wrote, “From behind each fence and farmyard-wall.” That image lives on in the statue of the Minute Man on Lexington Green, or the Daniel French statue in Concord. (In recent years, the National Rifle Association mailed its life members a tiny replica of the Lexington statue.)

  But behind this portrait of the solitary fighting farmer stood a far more complex reality. The militia of April 19, 1775, was a well-organized military force, well trained, and woven firmly into the fabric of colonial government. Historian David Hackett Fischer explains in his authoritative study: “The fighting on this day was not merely an open running skirmish along the Battle Road. It was also a series of controlled engagements, in which the Middlesex farmers fought as members of formal military units.” General John R. Galvin, former U.S. commander of NATO, studied the battle. He estimates that four thousand militiamen from fourteen regiments attacked the British that day—part of the fourteen-thousand-man Massachusetts military force that marched toward Boston as the alarm spread.

  In its first weeks, as the Revolution matched the British Army against the colonial militias, the militias’ prestige soared. Word spread of their feat against the world’s most fearsome army. To many Americans, this was not only a moment of high pride and patriotic fervor. They saw their worst fear unfolding: a tyrannical standing army, pitted against a phalanx of citizen soldiers. For Americans of that time, “hearing the Lexington Alarm” froze memories, akin to recalling where you were when you first learned of Pearl Harbor or the terrorist attacks of 9/11. This was the apogee of the well regulated militia, comprised of farmers and innkeepers, that not only defended their towns but defined the republican ideal of active, virtuous citizenship.

  THE WELL REGULATED MILITIA

  With its odd syntax, the Second Amendment gives the whiff of an urgent, impassioned point being made in a long forgotten argument. Why does it start with homage to the “well regulated militia”? How does that relate to the “right to keep and bear arms”? Who are “the people”? To understand the history of the Second Amendment, we start by understanding the role of those militias—and just as important, what Americans thought of them. The Second Amendment is after all a product of a particular time and place: a world with clear, plain distinctions between militias (“well regulated” and otherwise) and armies. It comes to us from a moment when ordinary citizens were expected to bear arms for the community. Few parts of the life of Revolutionary Era Americans seem more distant.

  Given the intense debate over the Second Amendment today, it is striking to see the tactical, even offhand maneuvers that led to its enactment. The young men who crafted the Constitution were the first American political leaders to feel the force of public distrust. They did what politicians do when faced with a difficult electorate: they weaved, and retreated, and gave up as much as necessary and as little as possible.

  At times we squint in search of a missing character. Where is the grand conversation about the individual’s right to own a gun? Two centuries later, details and meaning can seem murky. The Framers, we know, cared about posterity. Still, they might well be startled to see and hear how later generations read, and misread, their goals and tactics as they pushed a new constitution into being.

  First, some definitions. Militias were military forces drawn from the citizenry—largely the yeoman farmers who owned their own property and worked their own land. In England, and then even more so in the colonies, militia service was a universal expectation. Men from sixteen to sixty were required to join a company, and train intermittently. They were expected to own and bring their own gun. They were not allowed to have a musket; they were required to. More tha
n a right, being armed was a duty.

  Militias had a long history among the English-speaking peoples. The idea of a sturdy social class of property-owning militia members was far from fanciful. Compared to the Continent, with its foppish aristocrats and vast numbers of unhappy peasants, British law and custom led to a wider distribution of property. Over time, the idea of the militia anchored a full-fledged political philosophy. Historians called it civic republicanism, and it played a larger role than we realize in the formation of the American colonies. Niccolò Machiavelli’s ideas were widely influential. In The Art of War he promoted the idea of an armed force drawn from citizenry. So, too, were those of the philosopher James Harrington. He wrote what can only be described as a book of science fiction about a commonwealth called Oceana. His book lauded the imaginary land where the infantry was made up of the “yeomanry or middle people.”

  We have long imagined that the colonists were scrappy individualists, focused on a notion of personal freedom that would put them at home in our century. Historians Bernard Bailyn and Gordon S. Wood have forcefully shown us a different picture: the colonists believed powerfully in duty and civic responsibility. They were heavily influenced by so-called radical British political thought, developed during struggles between Parliament and the king in the century before 1775. They took with deadly seriousness the ideas of no taxation without representation, the rule of law, and the dangers of a standing army. Before the Revolution, that took the form of a devoted, even exaggerated fealty to the political ideas of a country few colonists had ever visited. One crucial difference divided the British militia from its bumptious American cousin. In England, the most dependable people were culled into a select militia—a “trained band”—for ongoing service. In the colonies, militia service was for everyone. (All white men, that is.)