Fact-Checking Denniston’s “Constitution Check” on the Second Amendment

April 15th, 2014

The National Constitution Center has an excellent blog, Constitution Daily,  with lots of great features about our Constitution. I’ve written several pieces for them. But one feature really isn’t working for me. This is the “Constitution Check” section, authored by Lyle Denniston. It makes an attempt to emulate fact-checking sites like Politifact.

In a recent post titled “Constitution Check: Does the Second Amendment need to be amended?” Lyle considers Justice Stevens’s recent proposal to amend the Second Amendment (I’ve written about Stevens more times than I can count, so here I’ll focus on Denniston’s “Constitution Check.”)

Lyle writes:


There is an old saying about the Constitution that, like a lot of old sayings, is at least partly an exaggeration: “The Constitution is what the Supreme Court says it is.”  However, that is very close to the truth about the Second Amendment.

From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun.  And then it changed, in a profound way.

Prior to 2008, there was a public conversation – often, in academic writings funded by the National Rifle Association – about whether the Amendment should go beyond protecting the arming of state militias, to allow Americans to arm themselves for personal use.

I have serious objections with this introduction. It is not written in a neutral or balanced way. If you purport to be writing some kind of objective, journalistic approach to the Constitution, this is not how you do it. What is most strikingly missing is ANY reference whatsoever to the facts supporting the other side of the debate. It is entirely one-sided. 

For starters, this statement is false:

From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun.  And then it changed, in a profound way.

Now, it would be fair to say that the original meaning of the Second Amendment is controversial, and that many people offer differing accounts of what that right is. But this blanket statement, without any nuance, is wrong. I could provide books upon books of sources to show that contemporary thinkers in the 18th, 19th and early 20th century thought the right to keep and bear arms was an individual right. Justice Scalia chronicles them at great length.  And Justice Stevens provides other historical sources to say the history cuts the other way. A responsible “Constitution Check” would have to, at least mention both sources. An uninformed reader would believe that the right is simply made up out of whole cloth.

The post elides over this history, and only notes that the “public conversation” was often in “academic writings funded by the National Rifle Association.” I’m sure Lyle would not include in this group the works of Sandy Levinson, who authored the pathbreaking “The Embarrassing Second Amendment,” finding that the Second Amendment was in fact an individual right. Many prominent left-of-center academics came to the (uncomfortable) conclusion that the Second Amendment is an individual right (though they would find the law in Heller constitutional).

I appreciate the fact that the Second Amendment is controversial. I’ve written a lot about it, and spoken on the topic in front of legal, and non-legal audiences. Reasonable people can disagree on this topic. But making such unbalanced statements, without nuance, is a disservice to a blog post purporting to cite check the Constitution.