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04/15/2018

John Miller on Joyce Lee Malcolm and the Second Amendment
Michael Ramsey

At National Review, John Miller:  The ‘Nice Girl’ Who Saved the Second Amendment (profiling Professor Joyce Lee Malcolm of George Mason University).  From the introduction: 

Malcolm looks nothing like a hardened veteran of the gun-control wars. Small, slender, and bookish, she’s a wisp of a woman who enjoys plunging into archives and sitting through panel discussions at academic conferences. Her favorite topic is 17th- and 18th-century Anglo-American history, from the causes of the English Civil War to the meaning of the American Revolution. Her latest book, due in May, is The Tragedy of Benedict Arnold, a biography of the infamous general. She doesn’t belong to the National Rifle Association, nor does she hunt. She admits to owning an old shotgun, but she’s unsure about the make or model. “I’ve taken it out a couple of times, but the clay targets fall safely to earth,” she says in an interview at George Mason University’s Antonin Scalia Law School in Virginia, where she’s a professor who teaches courses on constitutional history as well as on war and law.

She is also the lady who saved the Second Amendment — a scholar whose work helped make possible the Supreme Court’s landmark Heller decision, which in 2008 recognized an individual right to possess a firearm. “People used to ask, ‘How did a nice girl like you get into a subject like this?’” she says. “I’m not asked that anymore.” She smiles, a little mischievously. “Maybe they don’t think I’m a nice girl anymore.”

On the origins of her key book:

Malcolm’s doctoral dissertation focused on King Charles I and the problem of loyalty in the 1640s, and much of her scholarship has flowed from this initial work. The Royal Historical Society published her first book, and she edited a pair of volumes for the Liberty Fund, totaling more than 1,000 pages, on political tracts in 17th-century England. As she researched and wrote on the period, she noticed something peculiar. “During the English Civil War, the king would summon the local militia to turn out with their best weapons,” she says. “Then he would relieve them of their best weapons. He confiscated them. Obviously, he didn’t trust his subjects.”

At a time when armies were marching around England, ordinary people became anxious about surrendering guns. Then, in 1689, the English Bill of Rights responded by granting Protestants the right to “have Arms for their Defence.” Malcolm wasn’t the first person to notice this, of course, but as an American who had studied political loyalty in England, she approached the topic from a fresh angle. “The English felt a need to put this in writing because the king had been disarming his political opponents,” she says. “This is the origin of our Second Amendment. It’s an individual right.”

...

Her research led to a groundbreaking book on the history of gun rights, To Keep and Bear Arms. Before it went to print, however, she faced something she had not expected: political resistance. “I had a hard time finding a publisher,” she says. After several years in limbo, To Keep and Bear Armscame out in 1994, from Harvard University Press — an excellent result for any scholar in the peer-reviewed world of publish-or-perish professionalism. “The problem was that I had come up with an answer that a lot of people didn’t like.”

The Second Amendment, she insisted, recognizes an individual right to gun ownership as an essential feature of limited government. In her book’s preface, she called this the “least understood of those liberties secured by Englishmen and bequeathed to their American colonists.” Confusion reigned: “The language of the Second Amendment, considered perfectly clear by the framers and their contemporaries, is no longer clear.” The right to keep and bear arms, Malcolm warned, “is a right in decline.”

She aimed to revive it at a time when governments at all levels imposed more restrictions on gun ownership than they do today. Many legal scholars claimed that the Second Amendment granted a collective right for states to have militias but not the individual right of citizens to own firearms. With To Keep and Bear Arms, which received favorable reviews and went through several printings, Malcolm joined a small but increasingly influential group of academics with different ideas. 

And the Heller connection:

Then, in 2008, came Heller, arguably the most important gun-rights case in U.S. history. A 5–4 decision written by Scalia and citing Malcolm three times, it swept away the claims of gun-control theorists and declared that Americans enjoy an individual right to gun ownership. “If we had lost Heller, it would have been a big blow,” says Malcolm. “Instead, it gave us this substantial right.” She remembers a thought from the day the Court ruled: “If I have done nothing else my whole life, I have accomplished something important.”

Here is the Amazon page for the book: To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard Univ. Pres 1996).