Malcolm Gladwell, Confused Originalist
In 1950, Immanuel Velikovsky published Worlds in Collision, in which he argued that astronomical events such as the supposed expulsion of Venus as a comet from Jupiter occurred within the span of ancient human civilizations, that the resulting planetary interactions led to catastrophes on Earth, and that accounts of an ancient flood in the Bible and the Epic of Gilgamesh and other events that are described in similar terms in different cultures were records of the consequences of the celestial collisions. Velikovsky had no training in science, history, or any other relevant discipline. He was a psychiatrist. Nonetheless, his book made a splash. Scientists knew that Velikovsky's astronomy was bunk but were impressed by his historical account of ancient religious texts and myths. Bible scholars, historians, and archeologists familiar with the relevant materials knew that Velikovsky's reconstruction of ancient events was bunk but were impressed by his science. Very few people were able to discern that Velikovsky's whole theory was nonsense.
Reading well-written and engaging accounts of matters in which I am a non-expert and the author is a non-expert, I sometimes need to remind myself of the cautionary tale that is Worlds in Collision. Which brings me to Malcolm Gladwell's latest book, The American Way of Killing: The Invention of an Epidemic. In it, Gladwell offers insights into gun violence in the United States drawn from interviews with various experts. Here's some of what one can learn from the book:
1) Mass shootings account for a very small fraction of the gun violence in the U.S., and assault rifles account for less of the carnage in such shootings than do handguns.
2) Assault rifle bans as they are almost invariably enacted are mainly performative because they don't ban many weapons that are functionally indistinguishable from the ones they do ban and because assault rifles account for a small percentage of the gun violence (see #1).
3) Declining homicide rates don't say as much about gun violence as one might think because a substantial fraction of the decline is a result of dramatic improvements in medical treatment for victims of gunshot wounds.
4) European cities typically have police forces that are more than twice the size of U.S. police forces but European countries have prison populations much smaller than those in the U.S.
5) Most shootings in the U.S. are unplanned rage events sparked by relatively trivial arguments rather than instrumental to some aim (such as a robbery or for the purpose of silencing a witness).
6) The Second Amendment was a response to the concerns of Southern planters that without it, the new national government would abolish state and local militias, leaving them vulnerable to slave revolts; therefore, D.C. v. Heller misread the Second Amendment.
I already knew some of those propositions but Gladwell is a wonderful writer and illustrates what I already knew engagingly. I found quite enlightening what Gladwell had to say about what I didn't know, but the fact that he bungles what I did know leads me to wonder about the rest of it. I'm not saying that Gladwell is nearly as bad as Velikovsky. I am saying that what I know he gets wrong leaves me uncertain about the material he discusses that I didn't previously know about.
So what does Gladwell get wrong? Let's focus on point 6. Gladwell criticizes the Supreme Court in DC v. Heller for not understanding what a "being" clause (as in "A well regulated militia, being necessary . . .") is. He says that the Court wrongly concluded that what it called the prefatory clause had no relation to the operative clause. But that's not what Justice Scalia's opinion for the Court in Heller says.
The purpose (or as Scalia puts it, the reason for codification of the right) stated by the prefatory (or being) clause is the preservation of the militia; the operative clause serves that purpose by protecting an individual right because if people have arms that they use in their daily lives for self-protection and hunting they can readily bring those arms with them when called to muster. Here's how Scalia puts it in Part II.A.3 of the Heller majority opinion:
[H]istory showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.
Gladwell doesn't appear to have even read the Heller opinion or if he did read it, he didn't understand it at all.
I say all of that despite the fact that I think Heller was wrongly decided. Gladwell hints at one reason why but doesn't seem to understand his own argument. At one point he notes that during the oral argument in Heller, Walter Dellinger offered a very different way from Scalia to reconcile the being clause and the operative clause of the Second Amendment. In light of the fact that the "militia" referred to "the body of the people," Dellinger offered that "the people" in the operative clause refers to the people in their collective capacity, i.e., a synonym for "militia." Gladwell explains why this would make sense given that in the late 18th century the subject of a being clause was always the same as the subject of the operative clause. Yet he then completely bungles his explanation of why Heller is wrong by incorrectly characterizing Scalia's opinion as claiming there's no connection between the two clauses.
Meanwhile, Gladwell doesn't mention other lines of argument that have been offered against the reasoning of Heller. There is the point I made in 2000 that the phrase "bear arms" was a term of art meaning to perform military service. I don't expect Gladwell to have read my article, but he might have read the Heller dissent of Justice Stevens, which makes the same point. Gladwell might also have relied on the research of historians like Saul Cornell, who have shown that individual rights to firearms were subject to very substantial regulation in late 18th century America. Here too, if Gladwell didn't have time to read the history literature, he could have read a summary of it in Justice Breyer's Heller dissent.
Gladwell's discussion of Heller thus reaches a sensible conclusion--the Court erred--but bungles the explanation why. He then makes matters worse. He moves on to tell the reader what the Second Amendment is really about: slavery. For that conclusion, Gladwell relies on very important work by my former colleague Carl Bogus, whose 2023 book Madison's Militia expands on research he performed in the1990s, with a special focus on the Virginia ratifying convention. But Bogus's argument is controversial, and Gladwell misunderstands its significance.
The subtitle of Bogus's book is The Hidden History of the Second Amendment. And he's right that before his research, the connection between Southern militias suppressing slave revolts and the Second Amendment was largely hidden--or at least not much discussed. He's also right that in Virginia and elsewhere in the South, preservation of the militia was closely connected to fear of slave revolts. But to say, as Bogus more or less does, and as Gladwell definitely does, that protecting slavery was the purpose for the Second Amendment is to flatten history. What are we to make of the proposals to amend the Constitution to include a right to bear arms from northerners who, like the dissenters in Pennsylvania, had no real interest in slavery? (Pennsylvania legislated gradual abolition beginning in 1780).
In any event, even if the main ultimate purpose of the Second Amendment was to protect against slave revolts, the Amendment's text is not so limited. Suppose new historical research revealed that at the Virginia ratifying convention the debates over the absence of protection for free speech focused mostly on the worry that Congress would use its new powers to prosecute people who defended slavery in print. Suppose new research showed that Virginia ratifiers sought what became the Fourth Amendment because they worried that the federal government would use its new powers to pry into their private sexual exploitation of the women they enslaved. Would such findings really bear on how the First and Fourth Amendments should be interpreted today? Would they have the further consequence--which Gladwell implies for the Second Amendment--that the First and Fourth Amendments should be read out of the Constitution because they are tainted by slavery?
The whole Constitution is tainted by slavery. Is it all void? If not, and one assumes not, at least in a book that is supposed to shed light on how one thinks about problems in the real world, what is Gladwell saying? Gladwell seems to be some sort of originalist when it comes to constitutional interpretation, but he is a very very confused one.