What did the Founding Fathers really intend when they crafted the Second Amendment? Two leading experts with opposing views, Alan Gura and Michael Waldman, debate the topic in a spirited discussion at the National Constitution Center.
Waldman, president of the Brennan Center for Justice at NYU School of Law, joined attorney Gura and the National Constitution Center’s Jeffrey Rosen for a rigorous discussion on the history and purpose of the Second Amendment in a live event on June 4, 2014.
Crossing the full course of American history from the time of the Founding Fathers to present day, the conversation drew chiefly upon Waldman’s new book, The Second Amendment: A Biography.
“This is a superb book,” said Rosen to an excited audience. “What Michael has done so compellingly is to give a narratively accessible account of the history of the Second Amendment—what the various drafts of it meant, from the Revolutionary-era state constitutions through the ratification process of the Bill of Rights and the Reconstruction era."
“He also gives us a sense of the genesis and meaning of the recent Supreme Court decisions recognizing the Second Amendment as an individual right and their current effects,” Rosen continued, “and the surprising lesson that lower courts have interpreted these decision to allow many gun-control regulations rather than strike them down.”
Waldman, former director of speech writing for President Bill Clinton and the author of several books, claims that the Supreme Court’s holdings in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010)—recognizing the Second Amendment as the articulation of an individual right to self-defense rather than a collective right to state militias—are historically misinformed and unpersuasive.
“When Justice Scalia said that [Heller] was the vindication of his vision of originalism—the idea that the only legitimate way to look at a constitutional provision is to ask what it meant at the time of the framing—I think that that is an error,” he said.
Instead, Waldman pointed to the Framers’ apprehension toward a standing army and their view of state militias as “bulwarks of liberty” against a future tyrannical regime.
“There’s a real limit to how much we can decide here and now on what to do about the issue of guns and gun safety and gun rights by just going back and looking at the Founding era,” he added.
Gura, founding partner of Gura & Possessky PLLC who successfully argued Heller and McDonald at the Supreme Court, took a different view of the amendment and the debate that lead to its passage.
“What the Framers meant to do was secure the right of people to keep and bear arms,” he said. “Even if the Framers were entirely wrong as to the effectiveness of the militia, [that] doesn’t change the substance of the right or who possessed it.”
Waldman and Gura also addressed a number of other topics, including the influence of Reconstruction history on our understanding of the Second Amendment and the trajectory of gun rights jurisprudence over the century prior to Heller.
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