American Enlightenment Project

A Dangerous Freedom

The historian Heller cited called that right a ‘dangerous freedom’ that ‘for obvious reasons few governments ever granted.’ Ours never did: courts held the Second Amendment ‘solely protects the right of the states to keep and maintain armed militia‘ in the 20^th century—when there were no shooter drills in kindergarten or daily mass shootings. That is, until Heller rewrote it:

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. — U.S. Const. amend. II (1791)

A disciplined citizens’ militia, being necessary to freedom, the right to guns commonly used in the home for self-defense, shall not be abridged. — District of Columbia v. Heller (2008)

Heller has been criticized even by gun rights scholars. An NRA- endowed professor at George Mason U’s Scalia Law School wrote: ‘At crucial points, Justice Scalia issued ipse dixits unsupported by any historical evidence, and at others, misrepresented historical facts’ and ‘invented’ the common-use test (used to overturn gun laws). He called key rationales ‘so defective,’ Heller ‘should be seen as an embarrassment to all who signed the majority opinion.’

A Gun Epidemic, then Health Crisis—and Silence about the Cause

Dissenting Justice Stevens said it’s ‘profoundly important’ Americans see Heller’s role in the “slaughter caused by the prevalence of guns,” and that it “desperately needs to be overturned.” But few are aware of Heller, of its role, and of all the guesswork that led to it. Because other organizations won’t talk about Heller, even as gun violence has become depressingly common.

By 2015, after Heller was extended in 2010 to strike down bans nationwide on handguns in the home, guns and gun violence surged in tandem to a declared ‘Gun Epidemic.’ 

By 2024, after Heller’s further expansion in 2022 to allow handguns in public, in N.Y.S. Rifle & Pistol Ass’n v. Bruen, gun violence had become a ‘Public Health Crisis.’

Questioning Heller

Tensions are rising. In Bruen, Justice Alito wrote: ‘it is hard to see what legitimate purpose can be served by’ citing gun violence since Heller. ‘Why, for example, does the dissent think it relevant to recount the mass shootings that have occurred in recent years?’ (7,200+ since MassShootingTracker began in 2013, and counting).

But during oral argument over whether to extend Heller to public carry—joyriding with pistols as Justice Breyer put it—Justice Barrett asked a critical question: ‘Do you think Heller was rightly decided?’ It has yet to be briefed and answered.

The Power of a Legal Brief

One brief can make all the difference. The Court this term delivered a blow to the Trump administration, blocking deployment of the National Guard to Chicago based on one scholar’s brief clarifying that ‘regular forces’ in a militia statute meant regular military forces, not law enforcement as both sides argued. This single brief—correcting superficial readings—forced troop withdrawals from other American cities and averted civil unrest nationwide.

Our Strategic Change

It is time to correct the similarly superficial readings of the Second Amendment both sides presented in Heller—each calling the other’s absurd—and persuade the Court to overturn it. That really is the only way to restore common-sense laws Heller took “off the table” and end this crisis.