Magazine | April 16, 2018, Issue

The ‘Nice Girl’ Who Saved the Second Amendment

Professor Joyce Lee Malcolm of the Antonin Scalia Law School at George Mason University. (Jonathan Wiggs/The Boston Globe via Getty Images)
For Heller, thank the scholarship of Joyce Lee Malcolm

Arlington, Va.– In the hours after February’s school massacre in Parkland, Fla., Joyce Lee Malcolm watched the response with growing annoyance:

“Everybody seemed to leap upon it, looking for a political benefit, rather than allowing for a cooling-off period.” As a historian, Malcolm prefers to take the long view. As a leading scholar of the Second Amendment, however, she is also expected to have snap opinions on gun rights, and in fact she often has engaged in the news-driven debates about violence and firearms. “Something deep inside of me says that people never should be victims,” she says. “And they never should be put in the position of being disarmed by their government.”

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.”

Back when Malcolm was a girl, she lived in Utica, N.Y. A state scholarship sent her to Barnard, the women’s college tied to Columbia University, where she majored in history. “It was a process of elimination,” she says. “I took calculus and chemistry, but history seemed the least narrow. You could study the history of math or the history of science. It had the widest scope.” She got married as an undergraduate — “people did that in those days” — and by the time she was 23, she was both a college graduate and a mom.

Malcolm wanted to continue her education. Living outside Boston, she applied to graduate school at Brandeis University, thinking that she might attend part-time. Administrators, however, talked her into the normal, full-time option. So she launched into a Ph.D. program, focusing on England in the early modern era. “I really liked the period,” she says. “It was wonderfully complex, with divisions between the rights of the state and the rights of individuals.” For her dissertation, she moved to Oxford and Cambridge, with children in tow. Now separated from her husband, she was a single mother. “It took some balancing. I’m not sure I was the best parent I could have been, but my kids grew up seeing what you can do when you put your mind to working.” (One of them is Mark Johnson, a Pulitzer Prize–winning health and science journalist at the Milwaukee Journal Sentinel.) In Britain, she met a Scotsman who became her second husband. She brought him back to the United States and took his surname.

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.”

As she researched, Malcolm taught at several schools and worked for the National Park Service. In 1988, she took a post near Boston, at Bentley College, a school best known for business education (and now called Bentley University). Fellowships allowed her to pursue her interest in how the right to bear arms migrated across the ocean and took root in colonial America. “The subject hadn’t been done from the English side because it’s an American question, and American constitutional scholars didn’t know the English material very well,” she says. Some Americans even resisted looking to English sources because they wanted to stress their country’s uniqueness. Moreover, law-school textbooks and courses skimmed over the Second Amendment. “The subject was poorly covered.”

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 Arms came 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. Her allies included Robert J. Cottrol, of George Washington University, and Glenn Reynolds, of the University of Tennessee (and best known for his Instapundit website). “I was so naïve,” she says. “I thought the idea of research was that you find information and people say, ‘Good! Now we know the answer!’”

She learned the truth in 1995, when House Republicans invited her to testify before a subcommittee on crime. The subcommittee’s ranking member was Representative Charles Schumer, Democrat of New York (and today’s Senate minority leader). In his opening remarks, Schumer scoffed at Malcolm and other witnesses. “The intellectual content of this hearing is so far off the edge that we ought to declare this an official meeting of the Flat Earth Society,” he said. “Because the pro-gun arguments we will hear today are as flaky as the arguments of the tiny few who still insist that the Earth is flat.”

Malcolm still bristles at those words. “I was a Democrat at the time,” she says. “I was raised a Democrat. I was just there to tell them what I had found out. It wasn’t a political issue for me. But the Democrats were nasty. Schumer was nasty.” After the hearing, Malcolm came to a realization: “For some people, opposition to individual gun rights is an article of faith, and they don’t care about the historical evidence.” Ever since, she has received regular reminders of this fact. In 1997, for example, Supreme Court justice Antonin Scalia praised Malcolm’s “excellent study” but also erroneously called her “an Englishwoman.”

The unfortunately named legal scholar Carl T. Bogus jumped at the blunder: “Malcolm’s name may sound British, and Bentley College, where Malcolm teaches history, may sound like a college at Oxford, but in fact Malcolm was born and raised in Utica, New York, and Bentley is a business college in Massachusetts.” This irritates Malcolm. “They’re always trying to write me off because of Bentley, this ‘business college,’” she says. “It reminds me of the saying that if you don’t have the law, argue the facts; if you don’t have the facts, argue the law; and if you don’t have either, attack your opponent. The attacks have helped me grow a really thick skin.”

Along the way, the popular historian Stephen Ambrose provided Malcolm with inspiration. “He spent most of his career at the University of New Orleans,” she says, noting that it’s not considered a top-flight school. “He said he wanted to write himself to the top of his profession. It doesn’t matter where you teach. So I tried to write and write and write. You can lift yourself.”

Even so, some people continue trying to keep Malcolm down. The latest slight occurred at a symposium sponsored by the Campbell University School of Law in February, when the legal scholar Paul Finkelman equated the Supreme Court’s Heller decision with its notorious 1857 ruling in Dred Scott, which denied citizenship to blacks. Right after this provocative claim, Finkelman raised the old canard about Bentley in a bid to damage Malcolm’s credibility moments before she addressed their audience.

It didn’t matter to Finkelman that Malcolm had written her way up in the academic world’s pecking order: In 2006, she left Bentley and became a professor at George Mason’s law school, now named for Scalia. By this time, not only had Scalia praised her work, but so had other judges, including Supreme Court justice Clarence Thomas, who cited To Keep and Bear Arms in an opinion.

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.”

A simple idea has motivated her work: “For me, trust in the common man is such a basic principle. Few governments actually allow it. They want to keep their people vulnerable and disarmed. I find it awful that people wouldn’t be allowed to protect themselves.” She also calls attention to a cultural aspect: “City people who grew up without guns think it’s just a bunch of rednecks.” She recalls an incident at Bentley, years before Heller: “I was in my office one day and a groundskeeper came up. ‘I just want to shake your hand and thank you,’ he said. What else could I have been writing about that anyone would want to thank me for?” She pauses. “There’s just so much vilification of the people who want to ‘cling’ to their guns,” she says, echoing the words of Barack Obama, who as a presidential candidate in 2008 said of rural and working-class whites — future Trump Republicans — that “they get bitter, they cling to guns or religion or antipathy to people who aren’t like them.”

Malcolm is now a Republican herself. When she hears gun-control advocates say they don’t want to ban all guns — “just the ones that look scary,” as she puts it, with a tone of contempt — her thoughts turn back to Britain. In 2002, she published Guns and Violence: The English Experience. It showed, among other things, that crime rates were low in the 19th century, a period with few gun restrictions. Things are different today: Crime has worsened in the United Kingdom, while gun ownership is rare. “Britain has gone down the road of taking away guns,” she says. “And look where it got them.”

She points to a website of the U.K.’s Police National Legal Database, which includes an online forum called “Ask the Police.” One question inquires about self-defense products. Are any legal? The answer: Only one, a “rape alarm” that looks like a car remote. Its panic button emits a screeching sound. The website also warns against using nontoxic sprays against assailants. If “sprayed in someone’s eyes,” such a chemical “would become an offensive weapon.” In other words, potential rape victims can push panic buttons but must not dare to injure attackers — not with sprays, let alone knives or guns. “Can you believe it?” asks Malcolm. “They don’t let people protect themselves.”

Americans probably won’t face such a predicament, even in the aftermath of the Parkland killings and whatever reforms are enacted as a result. State legislatures have taken strong steps over the last generation to protect gun rights, and the Supreme Court has clarified the language of the Second Amendment. Even so, Malcolm is worried. “Some judges are ignoring Heller, and unless the Supreme Court agrees to hear these cases and overturn them, we’ll see an erosion,” she says. Liberals in the media and at law schools cheer on the renegades. Justice Ruth Bader Ginsburg has called for the overturning of Heller itself, and if a single seat now held by a conservative were to flip to a liberal, she could get her way.

In the meantime, however, the right to bear arms will not be infringed — thanks in part to the pioneering scholarship of Joyce Lee Malcolm.

John J. Miller — John J. Miller is the national correspondent for National Review and the director of the Dow Journalism Program at Hillsdale College. His new book is Reading Around: Journalism on Authors, Artists, and Ideas.

In This Issue

Articles

Features

Books, Arts & Manners

Sections

Most Popular

World

NATO’s Challenge Is Germany, Not America

During the recent NATO summit meeting, a rumbustious Donald Trump tore off a thin scab of niceties to reveal a deep and old NATO wound — one that has predated Trump by nearly 30 years and goes back to the end of the Cold War. In an era when the Soviet Union and the Warsaw Pact are now ancient history, ... Read More
Economy & Business

De Blasio’s War on Ordinary New Yorkers

One thing (almost) all New Yorkers have in common is an extremely valuable resource: living space. The ability to rent some of it out to one of the 62 million or so who visit the city each year ought to be one of the major perks of residence. Instead, Mayor Bill de Blasio is crushing New Yorkers who wish to do ... Read More