Author: canicadmin

In the second segment of his article, “Heller Sequels and 2nd Amendment, Still Undecided: Part 2” (Law 360 Aug. 3, 2017), Robert Ludwig explores the roots of the Second Amendment, and in doing so shows how the Heller majority, relying on dictionaries and English history a century earlier, and disregarding its debates, drafting, and American history, was left with “no understanding of the problems confronting the Framers,” which had nothing to do with an individual right.”

Mr. Ludwig suggests that, while “overlooking the full text and other things,” as demonstrated in Part 1 and in his previous article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law 360 Jan. 11, 2016), “academics and the courts have been unable to explain something nearly as obvious: what the states demanded they got from its drafter James Madison and the First Congress.”

At the 1788 Virginia ratifying convention, Col. George Mason “drafted, and the Virginia convention proposed, both a declarative amendment (‘That the people have a right to keep & to bear arms; that a well regulated Militia, composed of the body of the people, trained to arms, is the proper natural and safe defense of a free State’) and a corresponding structural amendment (‘That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.’)”

Mr. Ludwig shows how “Rep. Madison, denied a Senate seat and narrowly elected to the First Congress on the promise he would introduce amendments,” ignored any structural amendment that would alter compromises just struck at the Constitutional Convention, submitting a draft that read: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” House and Senate “committees and stylists inverted the first and second clauses, changed ‘country’; to ‘State,’ eliminated the conscientious-objector clause, dropped ‘well armed’ as redundant and tightened language,” resulting in the Second Amendment.

But, Mr. Ludwig asks, “Why were the generally expressed and extensively entertained fears of Mason and most Anti-Federalists (states’ rights advocates) quieted by the declaration alone, without the structural amendment? That question has never been answered.” The historical record that might explain the Second Amendment and the framers’ decisions, including to eliminate the structural amendment, was not published for decades after ratification, and modern anthologies on both sides of the gun debate, deemed authoritative, contain and perpetuate other mass oversights in addition to the overlooked text. And the record “that might explain the amendment, while more extensive than assumed, is not what might otherwise exist for a founding institution,” largely because “the militia system, a republican alternative to a despised standing army, began an early march to obscurity,” a month before the amendment was ratified in 1791. In “one of the country’s worst, forgotten military disasters, an Indian confederation (bearing British muskets) wiped out nearly a third of the nation’s forces” when “militiamen ran, leading to the first cabinet meeting by President Washington, congressional investigation, and creation of a standing army that became the U.S. Army.”

Yet, despite perceived gaps in the historical record, the framers’ intentions and the historical roots of the amendment are not as elusive as the courts and academy assume. A primary reason why the record has “baffled” academic and legal interpreters is that, as Mr. Ludwig shows, “rather than re-examine assumptions, questions asked, and worn paths through their (abridged) founding record, the general tendency has been to blame the record, or the framers themselves, otherwise regarded as unparalleled political theorists and stylists.”

Unable “to square the circles or mysteries of the amendment,” including how its (first two) clauses fit (overlooking its third), why Madison drafted it the way he did, and why it quieted generally expressed state fears over the right to arm their militia, many scholars like Michael Waldman of the NYU Brennan Center for Justice, conclude: “We cannot clearly know what the framers intended,” reflecting entrenched “received wisdom in academic circles.” “Actually, we can,” Mr. Ludwig writes, as he further begins to demonstrate in Part 2 of his textual and historical analysis of the amendment.

This blog is excerpted from Robert Ludwig’s article, © 2017 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.

In Parts 1 and 2 of his recently-published article, “Heller Sequels and 2nd Amendment, Still Undecided: Part 1 (Law 360 Jul. 20, 2017) and “Heller Sequels and 2nd Amendment, Still Undecided: Part 2 (Law 360 Aug. 3, 2017), Mr. Ludwig showed how a divided Supreme Court in D.C. v. Heller (2008) “overlook[ed] the full text” of the Second Amendment, among other things, to “‘creat[e] a new blockbuster’ individual right to guns ‘not apparent to the court for over two centuries,’ as critiqued by Fourth Circuit Judge Harvey Wilkinson,” while seeming “not to want ‘to deal with any of the more unpleasant consequences of such a right.’” “Relying on dictionaries and English history a century earlier, and disregarding its debates, drafting, and American history,” Mr. Ludwig makes clear that the majority showed “no understanding of the problems confronting the Framers, which had nothing to do with an individual right.” Also overlooked “is another unpleasant consequence: Heller, in taking legislative ‘policy choices off the table,’ never decided the full amendment, including the prohibition and verb (‘infringed’) on which it rests.”

In the third and final segment of his article, “Heller Sequels and 2nd Amendment, Still Undecided: Part 3” (Law 360 Aug. 24, 2017) Mr. Ludwig concludes that “Heller, not having decided the full text, has no binding effect. Its partial constructs are so untenable and unsupported, little remains of its implied right(s), that Seventh Circuit Judge Richard Posner scorned as a ‘snow job’ and Chief Justice Warren Burger earlier called a ‘fraud.’” Mr. Ludwig raises “the pernicious consequences of allowing Heller’s oversights, guesswork, and dicta, and not the people’s legislatures, to determine gun policy, leading to an ‘epidemic’ of gun proliferation and violence.”

Mr. Ludwig shows that Heller, based on a series of “mass oversights,” is only a “partial construction of the prefatory and rights clauses, out of context, without construing the prohibitory clause.” And in “overturning 200 years of understanding, it cited remarkably little or no support in implying each of the component individual rights in announced: (1) to ‘handgun possession’ and to ‘carry it in the home,’ (2) to resist tyrannical government, and (3) to ‘lawful weapons … possessed in the home.’” Mr. Ludwig then illustrates how “its lack of support is apparent in its literal definitions, empty assertions, and conclusory analyses of the relation between the clauses it did construe.”

In implying its oddly-worded right to “handgun possession” and to “carry it in the home,” the Heller Court, in an “epic oversight,” “purported to decide” the amendment “without considering its full text. That is remarkable, especially for Justice Scalia and other court textualists. But for any judge to decide, or lawyer to advocate, the Constitution without addressing its full wording borders on malpractice.” Justice Scalia’s “own treatise states: ‘every word and every provision is to be given effect. None should be ignored,’—one of many such canons not followed in Heller, which simply wrote off the last provision of the Second Amendment. Or out of the Constitution, and with it, a clear exegesis of the ‘baffling’ amendment.”

“Almost as surprising is the failure by the court, lawyers and academy to connect constitutional dots: to recognize that ‘infringed’ and ‘abridged,’” which Heller impermissibly transposed, “are terms of art, one protecting sovereign and the other individual rights.”

So too is Heller’s perpetuation of the notion of a right to guns “as a check on tyranny, the pernicious pablum of the National Rifle Association and other gun groups,” which has persisted too long. “Presented an opportunity to put this dangerous distraction to rest, the majority, needing some rationale to explain how the preamble fit its implied right, endorsed it.” Predictably since, “there have been almost weekly ‘incidents of insurrectionist violence (or the promotion of such violence),’ as catalogued by the Coalition to Stop Gun Violence on its ‘Insurrectionism Timeline.’”

The “great lesson” that a “constitutional republic ‘leaves no room for insurrection’” (cited by Thomas Paine and later Abraham Lincoln), “and the corresponding ‘axiom of our political system’” that federal and state governments ensure constitutional order in each other (as explained by Alexander Hamilton and James Madison), “both seem to have been lost on the court. Heller undermines the former by perpetuating insurrectionist myth,” and “defeats the latter” by “tossing federalism and the existential right of states to arm militia, preserved by the Second Amendment, ‘overboard like tea.’”

“It is also astonishing the court cited as its sole authority—in declaring ‘hundreds of judges’ ‘overread’” its unanimous” decision in U.S. v. Miller (1939) “that ‘arms’ meant ‘military equipment’—a single billy-club case (citing a bladed-weapons encyclopedia) to hold militiamen could bring any ‘lawful weapons that they possessed at home to militia duty.’ That 1980 case and flimsy historical evidence, which the majority underread, if read at all, was the linchpin for its blockbuster right.” Just as astounding, the fact “that lawyers and judges are still not even reading a key case from 1980 and verifying its citations” indicates “they are not doing likewise for the founding record from the 1780s.”

With its “stunning” oversights, Heller, “far from a ‘mighty rock’” as Justice Scalia dismissed the court’s last unanimous decision, rests itself “on sand,” and “settled nothing at all.” Its “own conclusion that its construction no longer (if ever) served the object of preserving state militia, when another did and does, only confirms the impropriety of its implied right.”

And these, as Mr. Ludwig notes, “are just some of the mass oversights that have led to Heller purporting to decide the Second Amendment by implication and guesswork, while taking legislative policy choices off the table.”

“Paying the price of epic legal oversights and miscalculation,” contributing to “an epidemic of gun proliferation and violence, are scores of Americans with their lives each day. Hundreds more are physically or psychologically wounded, their families and communities with them, having economic consequences not only for dependents, but police and health services left to deal with the carnage. Or police themselves become part of the carnage, or add to it when shooting unarmed citizens, fearful of shadows (as Gen. Washington described militiamen), in attempting to serve communities awash in guns.”

Since Heller, particularly after McDonald v. Chicago (2010) expanded its holding against the states, “guns exploded past the population for the first time, to 357 million as of 2013 data. Experiencing now an ‘epidemic of gun violence’ decried in historic 2015 and 2016 front-page and presidential op-eds, which has since grown worse, 36,000 Americans die every year from guns, or over 90 each day, one every 15 minutes.”

The three-part article concludes: “As reminded by Justice Breyer, ‘we’re human, and when it’s 5-4, obviously somebody’s wrong.’ Justice Scalia, who counseled judicial ‘self-abnegation’ in divining original intent, issued his own mea culpa in 2015 about a case of ‘judge-invented doctrine’ and ‘mess that I helped make,’ stating ‘its error has grown more glaringly obvious’ and ‘stare decisis does not recommend its retention.’ Given ‘glaringly obvious’ error in overlooking constitutional text, among other things, it’s time for the courts to apply that candor to the ill-starred Heller.”

 

This blog is excerpted from Robert Ludwig’s article, © 2017 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.

Robert Ludwig offers more legal and historical insights in response to the latest threatened shutdown, this time of the Supreme Court by Judiciary Committee Republicans who vowed not to hold hearings this year on any nominee to succeed Justice Antonin Scalia. Sen. Ted Cruz, a committee member running for the presidency, argued “we’re one justice away from the Second Amendment being written out,” referring to a right to guns newly found in District of Columbia v. Heller, 554 U.S. 570 (2008). Sen. Cruz also vowed in an op-ed to filibuster any vote to protect this “long-cherished” right (of eight years), which “even nonlawyers can’t miss,” unlike those “invented” by liberal courts “that are nowhere in the Constitution.” Not mentioned is Heller’s “judicial activism,” criticized by conservative Judge Harvie Wilkinson on the appeals court where Cruz once clerked, “creat[ing] a new blockbuster right “not apparent to the court for over two centuries,” much less nonlawyers.

In another timely article, “Court Nominee, Guns, and Constitutional Illiteracy ” (Law360 Mar. 15, 2016), Mr. Ludwig points out that, overlooked in the GOP pledge, filibuster threat, and raging court and political battles over gun rights and control, “are the amendment itself, and rudimentary constitutional terms of art.”

“For past generations, there was no ‘long-cherished’ right to ‘write out.’” On the bicentennial of the amendment, former Chief Justice Warren Burger, who knew the difference between his common law right to the shotgun he cherished and the Second Amendment, called a right to guns a “fraud.” Judge Robert Bork agreed, no small irony after Democrats savaged his nomination: “it really is people’s right to bear arms in a militia.” And the justice Bork would have succeeded, Lewis Powell of the Burger court that unanimously reaffirmed there was no right to guns, questioned why the amendment “should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking number” of gun deaths.

Remarkably, Heller, a sharply divided 5-4 decision overturning D.C.’s handgun ban and two centuries of law and legislative practice, did not address, let alone decide, the full amendment as assumed. Nor did Heller consider, in roiling settled law if not domestic tranquility, the whole constitutional and founding record, which is more extensive and clear than believed.

“One would think,” the article notes, “in construing the right ‘to keep and bear Arms’ which ‘shall not be infringed,’ Heller determined the meaning of ‘infringed.’ Yet nowhere did the court even address it, transposing instead ‘infringed’ to ‘abridged’ (‘abridge the ancient right of individuals to keep and bear arms’).”

“Infringed” and “abridged” are different words, have different meanings, and are not even synonyms. Where words “cannot, in any appropriate sense, be said to be synonimous,” Justice Joseph Story once warned, to “suppose them to signify the same thing,” as Heller did, “would be to defeat the obvious purposes of both.”

“‘Abridge,’ the article points out, “is the little-known term of art Congress invoked” in the First Amendment and “all amendments thereafter for individual rights: the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, Twenty-sixth, and proposed Equal Rights Amendments (apart from juridical rights in the Fourth through Eighth).”

“‘Infringed,’ used in an amendment associated with federalism, is the constitutional term for protecting sovereignty, which individuals did not possess, unlike states that did.” For example, “nothing is more American than the cries for self-representation during the decade of encroachments by Parliament on the sovereignty of colonial legislatures, which led to the Revolution. Similarly distinctive is the term used to protest them.” Construing “the people” with the sovereign usage of “infringed” permits only a collective, not individual meaning, and constitutional right.

Heller, mistaken on many levels, never reached the question presented: whether D.C.’s ban “infringed” any Second Amendment right, and may have no authoritative effect.

“Why have these terms of art been so long overlooked?” Mr. Ludwig asks. In the case of “‘infringed,’ the nonlawyers’ expression ‘you had me at’ is an apt explanation. For two centuries the amendment’s unique preamble was enough: declaring the necessity of a ‘well regulated Militia,’ it clarified any ambiguity in the clauses that followed,” and canons of construction mandated that result.

Still, “for lawyers to advocate a constitutional position, in this case the Second Amendment, without addressing the constitutional wording, borders on malpractice.” Meanwhile, as “lawyers slumber or lead another misguided insurgency against constitutional government, the republic bleeds.”

The article concludes: “There is no Second Amendment to ‘write out,’ but to actually read and understand, including text even lawyers can’t miss.”

This blog is excerpted from Robert Ludwig’s article, © 2016 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.

Robert Ludwig offers new legal and historical insights in response to “The Gun Epidemic,” the first New York Times front-page editorial in a century, urging: “It is past time to stop talking” and start reducing or “eliminating some large categories of weapons and ammunition” in the wake of San Bernardino, Colorado Springs, and daily mass shootings. President Barack Obama, saying “enough is enough,” last week issued his own historic Times op-ed, “Our Responsibility,” and executive actions, constrained not only by Congressional inaction, but suprising myopia about the Second Amendment.

In a timely article, “2nd Amendment Still Undecided Hiding In Plain View” (Law360 Jan. 11, 2016), Mr. Ludwig points out that the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), a sharply divided 5-4 decision overturning D.C.’s handgun ban and two centuries of law and legislative practice, “remarkably did not address much less decide the full amendment as is assumed. Nor did Heller address, in roiling settled law if not domestic tranquility, the whole constitutional and founding record, which is far more extensive and clear than believed.”

“For openers, one would think that in construing the right ‘to keep and bear Arms,’ which the amendment commands ‘shall not be infringed,’ the court addressed the meaning of ‘infringed.’ Yet nowhere in Heller, overturning 200 years of law that the right was collective and not individual, does the court consider let alone decide that term, a smoking gun hiding in plain view.”

Heller did recognize the text says the right “‘shall not be infringed,’ but did not address what ‘infringed’ means.” Instead it “transposed ‘infringed’ to ‘abridged’ (‘Congress was given no power to abridge the ancient right of individuals to keep and bear arms’), equating the two with no analysis.” Two years later an even more splintered court applied this newfound right against the states to strike down Chicago’s similar ban, again using “‘abridged’ and ‘infringed’ interchangeably, defining neither.”

Infringed and abridged are different words, the article explains, “have different meanings in period and modern dictionaries, and are not even synonyms. Where words ‘cannot, in any appropriate sense, be said to be synonimous,’ Justice Joseph Story once warned, to ‘suppose them to signify the same thing,’ as Heller and McDonald did, ‘would be to defeat the obvious purposes of both.’”

“Why did the framers use, in fact insist upon, ‘abridged’ and not ‘infringed’ when they intended an individual right?,” Mr. Ludwig asks. “The reason becomes obvious when one looks, as urged by Story: ‘It must have been the result of some determinate reason; and it is not very difficult to find,’ here in pertinent drafting history” and founding-era documents, none addressed in Heller.

In other words, Heller “never decided the question presented: whether D.C.’s handgun ban ‘infringed’ a Second Amendment right.” And until the court addresses the verb on which the entire Amendment rests, “arguably Heller, having neither addressed nor authoritatively decided whether anything was ‘infringed,’” has no effect on the courts or legislatures. That would mean “the court’s prior unanimous holding in 1939 which Heller never overruled, as unanimously reaffirmed by the Burger court in 1980, is still controlling.” As the latter affirmed, nothing in the amendment prevents “legislative restrictions,” including those called for in the Times editorial. “Gun rights and control groups have much to debate, just not the Second Amendment.”

This blog is excerpted from Robert Ludwig’s article, © 2016 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.