[JUNE 18, 2018]
Today, the 10th anniversary of the Supreme Court decision in D.C. v. Heller (June 26, 2008), a promising front in the battle against growing gun violence opens with the launch of the American Enlightenment Project, a new nonprofit in Washington, DC dedicated to ending the epidemic of gun proliferation and violence that arose after Heller and its sequel Chicago v. McDonald (2010). AEP’s groundbreaking work challenges conventional wisdom, shows the tragic link between the sudden epidemic and Heller, and reveals it as a historic blunder that overlooked constitutional text and founding history, which make clear the Second Amendment has nothing to do with an individual right.
Having forgotten there was an American Enlightenment and our founding history, we now have what prior generations did not: a “gun epidemic.” http://www.americanenlightenmentproject.org.
“To break the back of a senseless epidemic, Americans should pay more attention to retired Justice John Paul Stevens, a Cassandra unheeded about Heller,” said Robert W. Ludwig, a Washington attorney and legal advisor to AEP. Justice Stevens in 2014, citing “the slaughter caused by the prevalence of guns” and presaging the “Gun Epidemic” declared the next year, warned it is “profoundly important” to know Heller “curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 [now 96] deaths every day”—indeed silently contribute to the vast majority of daily gun deaths.
Following this year’s March for Our Lives, Justice Stevens, calling student demands for an assault-rifle ban and universal background checks useful to minimize “mass killings of schoolchildren and others” but not enough to curb worsening violence, encouraged students to “seek more effective and more lasting reform.” Frustrated like many Americans and treating Heller and the Second Amendment as the proverbial rock and a hard place, Justice Stevens proposed repeal of the amendment as the easier course. “Actually,” Mr. Ludwig says, “it is Heller, far from a mighty rock, that is vulnerable.”
For starters, he explains, “it is not just important to see Heller as a cause of the epidemic, but that it decided only two-thirds of the amendment. In construing the right ‘to keep and bear Arms’ which ‘shall not be infringed,’ Heller never considered the meaning of that constitutional command. Instead, it transposed ‘infringed’ to ‘abridged,’ though not even synonyms, like changing the commandment ‘shall not kill’ to ‘maim.’ Overlooked terms of art, ‘infringed’ protects the right of states to arm their militia; ‘abridged’ was used to protect individual rights in the First Amendment and all others for 200 years since.”
Overlooking pivotal text is “Probably the strongest reason for not following a decision,” the California Supreme Court said recently in correcting a 140-year oversight “‘announced in ignorance’” of an 1872 statute, “a remarkable failure of the adversary system” strikingly like Heller. Noting “It is better that wisdom, or at least controlling authority, come to our attention late, rather than not at all,” the California high court held “because the relevant language and history” was not applied, its prior case “cannot stand.”
“So too Heller,” says Mr. Ludwig. “Having not construed the full text, and other things hiding in plain sight, there is no legal way it can stand.” To end the epidemic it enabled, “what is needed is not repeal but a challenge to Heller, only one court case away from being renounced as the historic blunder it is for elementary oversights of text and founding history.”
AEP’s efforts are supported by years of intensive legal and historical review unraveling the Second Amendment’s mysteries. Mr. Ludwig’s published articles include: “2nd Amendment Still Undecided, Hiding in Plain View” (Law360 Jan. 11, 2016); “Court Nominee, Guns, and Constitutional Illiteracy” (Law360 Mar. 15, 2016); “Heller Sequels and 2nd Amendment, Still Undecided: Part 1” (Law360 July 20, 2017); Part 2 (Aug. 3, 2017); Part 3 (Aug. 24, 2017); and “The Historic Legal Blunder that Enabled Our Gun Epidemic: Renouncing Heller by Deciding – Not Repealing – the Full Second Amendment” (Law360 Apr. 25, 2018).
AEP is led by an Advisory Council, including the following:
- Robert W. Ludwig, an experienced litigator and founder of Ludwig & Robinson PLLC, an international law firm in Washington, D.C. with a Detroit office, a leading German affiliate, and a national practice in trial and appellate litigation.
- Jack N. Rakove, the W. R. Coe Professor of History and American Studies and Professor of Political Science and (by courtesy) of Law at Stanford University. His areas of research include the origins of the American Revolution and Constitution, the political practice and theory of James Madison, and the role of historical knowledge in constitutional litigation.
- Petra Smeltzer Starke, the Executive Director of AEP, is a business leader, policy advisor, and entrepreneur.
- Scott R. Williams, a co-founder and partner of ForeFront Strategies, a Washington communications firm.
For more information, including copies of the foregoing articles, please go to http://www.americanenlightenmentproject.org.