Constitutional Opinions

Tub to the Whale?

Was the Second Amendment intended as a distraction?

By From the July/August 2014 issue

Andrew Magill (Flickr Creative Commons)
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A new assault is underway on the palladium of our liberty, as the Second Amendment is sometimes known. It was underway even before a mentally ill Californian named Elliot Rodger committed a massacre in Santa Barbara. The Supreme Court, after ruling famously for Dick Heller’s right to keep a gun in his home, is caught like a deer in the headlights, as Josh Blackman makes clear elsewhere in this magazine, having turned down a string of cases testing the contours of the Second.

Now comes the president of the Brennan Center for Justice at New York University, Michael Waldman, with a book called The Second Amendment: A Biography. I first read about Waldman’s tome in a column by Joseph Nocera, the New York Timesman who has made gun control one of his signature causes. His purpose is to limit the right to carry firearms to those Americans serving in a militia. He’s convinced this would reduce the number of those who perish in massacres. 

Waldman’s book is a reminder of one of the unique features of the Second Amendment: It is the only article of the Constitution on which the liberals are trying to hold the court to what they insist was the “original intent” of the Founders. For instance, retired justice John Paul Stevens, who dissented in Heller, proposes in his latest book “adding five words to the text of the Second Amendment”— the right of the people to keep and bear Arms when serving in the Militia shall not be infringed—“to make it unambiguously conform to the original intent of its draftsmen.”

Ordinarily, your average liberal regards original intent the way a nudist regards a patch of poison ivy; he prefers the calamine of the “living constitution.” He’ll parse the parchment to mean whatever best supports his policies. This was most famously the case in respect of the Third Amendment, one of the simplest, most straightforward of all the articles in the Bill of Rights. It says: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” That is the plainest prose since Dick and Jane. Yet to the liberal eye it means that no state can ban the dissemination of birth control. 

You say that’s impossible. Yet it happened in 1965, in the case brought against Connecticut by an executive of Planned Parenthood, Estelle Griswold. The Nine—or seven of them—discovered that the Third Amendment, among other articles in the Bill of Rights, cast shadows and emanated penumbras, in which could be found a right to privacy that protects citizens’ access to contraceptives (and, extending the logic in Roe v. Wade eight years later, to abortion). If George Washington, James Madison, Gouverneur Morris, and the boys were to come back to life and read what Griswold made of the Third Amendment, they’d fall over in a dead faint.

The broader point is that if the shadows and penumbras of the Third Amendment could hide birth control and abortion from the gaze of the state, one would think they might be enough to also cover the right to own and carry, say, a .38. But it turns out that with the Second Amendment, everything is reversed. Suddenly it is the liberals who are caterwauling about original intent. This is Waldman’s tactic. The general claim of his new book is that the framers intended—even if they did not make it clear in the plain language—to protect the right to keep and bear arms only in the context of military service. That individuals should carry guns for other reasons was alien to the Founders, he suggests.

He was distraught when the high court enshrined an individual right to gun ownership in the 2008 case District of Columbia v. Heller. Waldman reckons the ground was laid with the accession of the GOP to the leadership in the Senate in 1981. Orrin Hatch, the new chairman of a key Judiciary subcommittee, commissioned a study that uncovered what it called “clear—and long lost—proof that the Second Amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.”

Waldman likens this to the cryptologists in the Disney movie National Treasure discovering invisible writing on the back of the Declaration of Independence. He writes as if he’s the only honest man on the case. In fact it is not only the Supreme Court that had concluded that Second Amendment rights are independent of any militia. So did a majority of the D.C. Court of Appeals, which first heard Heller. Law professors have even testified to the Senate on the point.

One of these was Eugene Volokh, who teaches at UCLA and publishes a blog called the Volokh Conspiracy, now hosted at the Washington Post. In 1998 he told the Senate that he’d recently changed his mind on the question of whether the Second encompasses an independent right. After researching the matter in preparation to teach a course, he concluded that the historical evidence “overwhelmingly points to one and only one conclusion: The Second Amendment does indeed secure an individual right to keep and bear arms.” 

Included in his testimony were citations from contemporaneous documents. “The people have a right to bear arms for the defense of themselves and the state,” the Pennsylvania Constitution of 1776 put it. Volokh lists similar language from one state after another—Connecticut, Indiana, Kentucky, Mississippi, Ohio, to name but several specifying that the right is for both the common defense and individual defense. Five states, when ratifying the federal Constitution, demanded that a Bill of Rights be written, and that it include the right to keep and bear arms. Among them was New York, whose governor today boasts of being the most “progressive”—he means anti-Second Amendment—state in the country.

Waldman’s book is notable as a marker for the direction of the debate on the Constitution today. It concludes with three lessons. First, that “originalism” as a way of reading the Constitution is, he says, “untenable.” Second, that “judicial restraint” is important in defense of liberal, but only liberal, laws. Third, that the “fully engaged” public makes constitutional law “as much as jurists and lawyers”—or, to put it in plain language, forget what the Constitution actually says.

He has a chapter called “Tub to the Whale,” which likens the Second Amendment to the tubs or barrels whalers used to throw into the water to distract dangerous cetaceans. Waldman adopts this view in his conclusion. “After all,” he writes, “the Framers added the Second Amendment to the Constitution not because they solemnly believed it necessary, but as a ‘tub to the whale’—a concession to popular discontent.”

Why, then, respect it? That’s his line. Of course, one could say the same thing about the confounded House of Representatives. Or the frilly First Amendment, with its protection of religious freedom that so troubles the state. Are these, too, “tubs to the whale,” designed to distract the commoner? It is hard to imagine a more cynical construction. But it was the way the anti-Federalists—the opponents of the Constitution—predicted history would turn, and the Second Amendment could emerge as the clearest test yet of whether they were right. 

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).