Digging for the roots of the Second Amendment

Just a few words, but they cause so much debate:

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.

The Second Amendment to the U.S. Constitution seems clear enough to the casual reader--the amendment means what it says, and protects the right of Americans to own and carry weapons. But, for decades, most politicians and legal scholars either ignored those few words, or claimed that, somehow, they only referred to the power of states to maintain National Guard units. To most folks, that seems an odd reading, but it was the prevailing point of view of the people in power through both Democratic and Republican administrations during much of the 20th Century.

Now the tide seems to have turned once again in the debate over the meaning of the allegedly confusing Second Amendment. In two separate cases: first, United States v. Emerson, and later (and more importantly) in Parker v. District of Columbia, two federal appeals courts have held that the Second Amendment does, in fact, protect the rights of individuals; the decision in Parker actually found Washington, D.C.'s gun ban unconstitutional under that apparently commonsense reading of the amendment's language.

So, what has happened to change the legal landscape so thoroughly? Scholarship! Lots and lots of legal and historical scholarship have tremendously strengthened the argument that the Second Amendment is important to individual rights after all. In Search of the Second Amendment, an important documentary by lawyer and best-selling author David T. Hardy, details the recent findings of a generation of legal scholars and historians--and some of the important uses to which Second Amendment rights have been put to defend other important rights, such as life, liberty and property.

Unfortunately, there are a couple of bumps in the road that might prevent
In Search of the Second Amendment from reaching as wide an audience as it should. Most importantly, Hardy should either have hired a professional sound engineer or else fired the one he did hire and brought in new talent. The audio varies in quality from interview to interview and is so garbled as to be nearly unintelligible in one segment in which Hardy himself appears. The sound problems distract the viewer from the meat of the documentary.

The other problem is that the film wanders a bit during a panel discussion sponsored by the American Enterprise Institute. Hardy probably included the material to further cement the case for the Second Amendment as a protector of individual rights through the testimony of some truly heavyweight legal scholars, but he risks losing his viewers. My wife, who is perfectly capable of chewing her way through medical journals, complained that this material was unfocused and dry.

But that may be the risk you take when you set out to counteract decades of bad assumptions with good scholarship. Watching an intellectual case being built may not woo a mass audience away from its affection for American Idol, but it's edifying viewing if you have any interest in history--especially if you are interested in the cultural and political factors that played such a large part in the evolution of the legal structure with which we live today.

Hardy takes the viewer from the original Englishman's duty to be armed through its transformation by intellectual ferment and political tumult into a right to be armed and that right's transplantation to the fertile soil of the American frontier. From there he describes colonial-era treatment of the right to bear arms, British challenges to that right in the days leading up to the Revolution, and, of course, the painstaking crafting of the Second Amendment during the heated debate over the adoption of the new federal Constitution.

From there, the documentary traces the odd sources of the once-prevalent belief that the Second Amendment had nothing to do with individual rights. Basically, the claim seems to have been invoked from thin air by a few politicians and jurists who (apparently deliberately) misstated holdings by earlier judges and authorities and then cited each other's opinions as proof of their position. The Kansas Supreme Court played an especially contemptible role here--before later carefully brushing the offending opinion under a figurative rug and returning to the individual rights position.

The Fourteenth Amendment comes in for extensive treatment by Hardy because of the explicit intent of its authors to extend the protections of the federal First and Second Amendments to black Americans victimized by racist state officials in the wake of the Civil War. Unfortunately, as the documentary describes, the Fourteenth Amendment has largely been gutted by subsequent court decisions.

The most effective part of the documentary may be the segment describing the use of firearms by blacks and white civil rights activists to defend themselves during the dangerous days of the civil rights movement in the 1950s and '60s. The accounts add an emotional impact to the otherwise scholarly film.

Through it all, Hardy relies on a convincing mix of original documents and interviews with scholars, including law professors, historians, criminologists and activists. Step by step they build an unimpeachable case for taking the Second Amendment every bit as seriously as the First or the Fourth.

Overall, In Search of the Second Amendment is an excellent and important piece of journalism that summarizes scholarship done largely out of the public view in a way that's interesting and accessible. At $24.95 plus shipping and handling, it's an affordable and worthwhile addition to the home library, to be pulled out whenever Uncle Ed starts spouting off about collective rights of the National Guard.

Maybe David Hardy can improve the audio quality of the documentary to match its intellectual impact when he updates the material to reflect the very recent Parker decision.

The documentary's official Website, where the DVD can be purchased, is here.