Time To Heed Justice Stevens’ Criticism Of Gun Decision

In a tribute to Justice John Paul Stevens, who died July 16 at 99 years old, Time To Heed Justice Stevens’ Criticism Of Gun Decision (Law360 July 19, 2019), Robert Ludwig notes perhaps none “would have gratified him more than for the country to finally look to District of Columbia v. Heller to understand how it worsens gun violence, as he warned to the end. Better yet, to find a way to overturn it.”

In his memoir published in May, Justice Stevens called the 5-4 Heller decision, discovering for the first time in 200 years a blockbuster right to possess guns, “the worst self-inflicted wound in the Court’s history.” He revealed a memo circulated before Justice Antonin Scalia completed his majority opinion, hoping the “negative consequences” “all justices could foresee” would give “pause before announcing such a radical change in the law that would greatly tie the hands” of lawmakers seeking “solutions to the gun problem.”

Heller turned America’s “Gun Problem” into a “Gun Epidemic”

As Justice Stevens anticipated, America’s “gun problem” soon became a “Gun Epidemic,” declared in a page-one New York Times editorial in 2015. It keeps growing, year after year.

“The numbers tell the story,” Mr. Ludwig points out. “After Heller declared a constitutional right to guns in 2008, extended to the states by McDonald v. Chicago in 2010, guns and annual gun deaths surged in tandem, from 310 to 400 million and 31,500 to 40,000, as seen in this graph:”

Number of Guns in Milions (left scale) and Annual Gun Deaths (right scale)

to Heller and its negative consequences, the nation now has record gun violence, daily mass shootings, and weekly school shootings, triggering last year’s March for Our Lives.

“Not only was this ‘foreseeable’ to the Heller justices,” Mr. Ludwig writes, courts have long known that “unchecked gun proliferation and use tend to lead to impulsive, confrontational behavior, with deadly results. In 1832, a legal treatise cited in Heller condemned the practice of carrying loaded pistols, noting they ‘frequently turned a quarrel into a bloody affray, which otherwise would have terminated in angry words.’”

A Way to Overturn Heller Is “Desperately Needed”

Repeating his past warnings about Heller, Justice Stevens’ memoir was more emphatic: An amendment “to overrule Heller is desperately needed to prevent [more] tragedies.”

But “treating Heller and the Second Amendment as the rock and a hard place,” Justice Stevens “viewed revision or repeal of the amendment as the easier course.” Yet “it doesn’t need changing,” Mr. Ludwig explains, “serves too important a purpose in our complicated federal system, and means something other than what [all justices] believed.”

“There is a way to overrule Heller, hiding in plain sight,” as Mr. Ludwig pointed out in 2nd Amendment Still Undecided, Hiding in Plain View (Law360 Jan. 11, 2016), published the month after the ‘gun epidemic’ was declared and a month before Justice Scalia’s death. Quite simply, “Heller never decided the full Second Amendment. And having overlooked pivotal text, it cannot legally stand.”

A Historic Legal Blunder

As similarly explained in another article, The Historic Legal Blunder That Enabled Our Gun Epidemic ((Law360 Apr. 25, 2018), Heller surprisingly did not address the full amendment before the court. “Overlooking the prohibition and verb on which the amendment rests, Justice Scalia transposed ‘shall not be infringed’ to ‘abridged,’ though not synonyms as is obvious from any thesaurus, but constitutional terms of art,” as should be. “Infringe,” Mr. Ludwig relates, was invoked in the Second Amendment and throughout founding history “to protect public rights, of states over their militia.” “‘Abridge’ has been used the last 230 years — for the ‘great rights’ in the First Amendment, where the first Congress rejected the substitution of ‘infringe,’ and in all such amendments since — to protect private rights.”

Overlooking text is “‘the strongest reason for not following a decision,’” the California Supreme Court said in correcting a 140-year oversight, a “remarkable failure of the adversary system.” Because “relevant language and history” was not addressed, it held its prior case “cannot stand.” Having not addressed the Second Amendment’s full text and history, nor can Heller.

A Better, Validated Approach

As Mr. Ludwig further observes, “Heller’s oversights of legal distinctions — infringe and abridge, public and private rights — are part of a larger failure to understand founding and Enlightenment principles that underlie American constitutionalism.”

He cites as validation a near-unanimous patent infringement decision last year that distinguished public and private rights. Justice Clarence Thomas wrote: “This Court has long recognized the grant of a patent is a ‘matter involving public rights,’” not “private rights,” correcting the common fallacy that “most everyone considered a patent a personal right,” as Justice Neil Gorsuch assumed in dissent.

That 7-2 opinion did not consider the obvious: “what ‘infringement’ means in relation to patents (i.e., why the doctrine is not ‘patent abridgement’).” Yet, Mr. Ludwig notes, “it shows how quickly misconceptions can be corrected, even by justices in the Heller majority like Thomas.” And “correcting Heller will be even more decisive, finally putting to rest any notion of a private right.”

Blind Spots Are Putting American Lives at Risk

For courts and lawyers, and “constitutional scholars who call the amendment’s text baffling and beyond comprehension, not to know infringe and abridge are constitutional terms of art — no more interchangeable than ‘patent infringement’ and “patent abridgement” — is a serious problem,” Mr. Ludwig writes.

Similarly, it is “troubling enough” that Heller’s majority and dissents all “found variants of an individual right the other called ‘absurd,’” the decade after former Chief Justice Warren Burger denounced that notion as “the greatest piece of fraud.” But “for the majority to transpose the people’s right to bear arms to a facetious right to ‘to carry [handguns] in the home,’ Heller’s precise holding, forgets what the Court ‘must never forget, that it is a constitution we are expounding.’” Likewise, “for the dissents to find a right that was also a duty (to bear arms in a militia, subject to state fines and imprisonment if not exercised) — unlike any other individual right — makes no sense,” a contradiction that “should have been a telltale sign the interpretation is wrong.”

As Mr. Ludwig further raises, “for Heller’s majority and dissents, and thousands of lawyers and courts applying its related right — to use weapons ‘typically possessed by law-abiding citizens for lawful purposes’ — not to check its support, is another dereliction.” Closely read, “That ‘common use’ fiction rests on a single case, involving billy clubs, which miscites, and misreads, a picture-book encyclopedia on swords and bayonets.” Yet “that flimsy test has been enforced across the country to undo long-standing gun control.”

“These are but some of the many blind-spots and systemic oversights of conventional wisdom today,” he observes. “Others include the real meaning and sources of the Second Amendment: who determined its ‘baffling’ (actually clear) wording, when and why.”

And it is “with these blind spots, or worse, that national gun policy is now determined.” Meanwhile, Heller “is poised for extension to public carry, with government litigants still not challenging its flimsy test” in the lower courts or even a pending Supreme Court case, New York State Rifle & Pistol Ass’n v. City of New York, its first in a decade. In response, New York City announced it has changed its regulation, fearing another major loss like D.C. suffered in Heller and Chicago in McDonald, and urged that the case be deemed moot.

“Without a better approach,” he cautions, “that raises and allows the Court to correct historic error, such cases greatly increase the odds it will “soon expand Heller from the home to the streets, creating a new blockbuster right and level of gun violence.”

Enough is Enough: Decide the Actual Amendment

Concluding Mr. Ludwig writes: “Chief Justice John Roberts has from time to time called out ‘when this Court needs to say enough is enough.’”

It’s “past time for the courts, bar and academy to address the full Second Amendment. To stop assuming away text and longtime meaning. To stop turning a ‘gun problem’ into a ‘gun epidemic,’ and one blockbuster right into another, once sensibly called a ‘fraud.’

“Enough is enough. And pay Justice Stevens an ultimate tribute: Overrule Heller.”

This blog is excerpted from Robert Ludwig’s article, © 2019 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.

Robert W. Ludwig is an attorney at Ludwig & Robinson PLLC. He is counsel for the American Enlightenment Project, a 501(c)(3) nonprofit formed to end gun violence through education of the courts and public, and legal challenges to the Supreme Court decision in D.C. v. Heller.


The Historic Legal Blunder That Enabled Our Gun Epidemic

“Having forgotten there was an American Enlightenment and our founding history, we now have what prior generations did not: a ‘gun epidemic.’” So begins Robert Ludwig’s latest article, “The Historic Legal Blunder that Enabled Our Gun Epidemic: Renouncing Heller by Deciding—Not Repealing—The Full Second Amendment” (Law360 Apr. 25, 2018).

It was published in response to op-eds by Justice John Paul Stevens calling for repeal of the Amendment and by “scholars backing the ‘gun safety’ movement, the moniker that truckles to extreme positions of the National Rifle Association.” In a swift backlash, Harvard law professor Laurence Tribe called it “A stupid way to fight our gun problem,” and Michael Waldman, President of the Brennan Center asserted: “What is holding the country back is not the Constitution or court rulings, but legislatures in thrall to the intense minority of gun rights absolutists.” Though repeal is unrealistic, Mr. Ludwig shows that the retired justice is “otherwise right” and “those advising the ‘gun safety’ movement are tragically myopic: it is court rulings. Stevens is one of the few national voices who acknowledges it.”

In a 2014 book citing “the slaughter caused by the prevalence of guns,” Justice Stevens presaged the “Gun Epidemic”—declared the next year, followed by daily mass shootings and weekly school shootings—and its cause, warning it is “profoundly important” for the public to know the Supreme Court in District of Columbia v. Heller (2008) “curtailed the government’s power to regulate the use of handguns that contribute to the roughly 88 [now 96] deaths every day.” That 5-4 decision, as criticized by conservatives like Fourth Circuit Judge J. Harvie Wilkinson, “created a new blockbuster right” to guns, complete with unstated exceptions, “not apparent to the Court for over two centuries.” Stevens called out Heller again in his op-ed, still “convinced [it] was wrong,” for providing “the N.R.A. with a propaganda weapon of immense power,” noting Chief Justice Warren Burger in 1991 called the notion of an individual guarantee a “fraud.”

This op-ed crossfire came after students, Mr. Ludwig writes, “awakening to the abattoir of gun violence they’ve inherited” after a Valentine’s Day massacre at a Parkland, Fla. high school, led a March for Our Lives, Town Halls for Our Lives, and National School Walkout. Stevens, calling their demands for an assault-rifle ban, universal background checks, and minimum age allowed by Heller’s exceptions useful to minimize “mass killings of school-children and others” but not enough to curb worsening violence, encouraged students to “seek more effective and more lasting reform.”

Underscoring Stevens’ point, Father’s Day shootings this Sunday at a Trenton arts festival left 22 injured, 4 critical, and at a Seattle-area Walmart another 2 injured—the handguns used untouched by modest reforms students and gun-safety advisors seek under Heller.N.J. Gov. Phil Murphy said: “Even having signed six stringent gun laws last week, we see this. We are getting better, but we are a long way from cracking the back of this senselessness.” Days before a handgun owner in a road rage followed a mother of three to a Denver parking lot and shot her and two boys, killing one and a witness in front of his daughter.

To crack the back of a senseless epidemic, Americans and gun safety groups should pay more attention to Stevens, “a Cassandra unheeded about Heller.” “Supremely frustrated like many Americans, Justice Stevens, treating Heller and the Second Amendment as the rock and a hard place, chose constitutional repeal as the easier course.” Actually, Mr. Ludwig explains, “it is Heller, far from a mighty rock, that is vulnerable.”

Heller “and the narrative that has taken hold among both gun rights and safety groups is deeply rooted in ignorance about the Second Amendment. Contrary to conventional thinking, Heller is only one court case away from being renounced as the historic blunder it is, for elementary oversights of text and founding history.”

For starters, it “is not just ‘profoundly important’ to see Heller as a cause, but that it purported to decide” by guesswork what “academics consider…the ‘most mysterious’ amendment with ‘no definitive answer to what’ it means.” The Court, saying it “took ‘seriously’ concerns over ‘handgun violence,’ confidently declared the ‘enshrinement of constitutional rights’ take ‘policy choices off the table,’ guessing like everyone else.”

Continuing, Mr. Ludwig notes, it is also “important to see” Heller is “guesswork over two-thirds of the amendment,” overlooking the verb on which it rests, “as pointed out in [R. Ludwig, “2nd Amendment Still Undecided, Hiding in Plain View” (Law360 Jan. 11, 2016)weeks before Justice Scalia’s death.” In construing the right “to keep and bear Arms” which “shall not be infringed,” the Court never considered the meaning of “infringed.” Instead, Justice Scalia impermissibly transposed the constitutional term “infringed” to “abridged,” though not even synonyms, like changing “shall not kill” to “maim.” Both 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 in correcting a 140-year oversight “‘announced in ignorance’” of an 1872 statute, “in 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. “Having not construed the full text, among many 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 of the Second Amendment, but a court challenge to Heller.”

Meanwhile post-Heller, the Constitution “is being turned into a suicide pact,” writes Max Boot in a recent Washington Post op-ed, “primarily but not exclusively” by Republicans in “idolatrous worship” of the Second Amendment. That blame extends, Mr. Ludwig notes, to “a long list of Democrats,” including President and Hillary Clinton and President Obama, all “on record as supporting a right to guns” that does not exist. “So too, improbably, is former Congresswoman and shooting victim Gabby Giffords, and the Giffords Law Center to Prevent Gun Violence.” In this Shakespearian tragedy, the fault is not in our Constitution, but in ourselves, or at least the courts and politicians we look to for guidance.

Rather than focus only on marginal reforms that barely impact the daily carnage from handguns, Americans should ask a court to finally decide the full constitutional text. They will be surprised at what the framers wrote and why, and how quickly Heller and the powerful weapon it handed the NRA will disappear, allowing them once again, like the rest of the world, to address gun violence through an unfettered legislative process.

Mr. Ludwig concludes: “Not deciding the full amendment, Heller ultimately will have no legal effect. Whether because stare decisis as established does not apply where a pivotal part of an enactment is missed, or that and other serious oversights warrant it be overruled 9-0 in the Supreme Court, the result is the same: Heller receives a proper burial.”

This blog is excerpted from Robert Ludwig’s article, © 2018 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.

Heller Sequels And 2nd Amendment, Still Undecided:Part 1

Almost a decade has passed since a bare (5-4) conservative majority of the Supreme Court struck down D.C.’s handgun ban and two centuries of law and legislative practice in District of Columbia v. Heller, 554 U.S. 570 (2008), implying in the Second Amendment a self-defense right to “handgun possession” and “to carry it in the home.” As “extraordinary as that phrasing, it further implied, in dicta, a related right to insurrection as a safeguard against tyranny,” and a right to any “lawful weapons that they possessed at home.”

In the first segment of his recently-published article, “Heller Sequels And 2nd Amendment, Still Undecided: Part 1” (Law 360 Jul. 20, 2017), Robert Ludwig offers insight into what little (to no) guidance has been provided by the Court over the past decade on how to interpret the “new right(s)” created by Heller. After a “string of denials of certiorari,” conservative Judge Harvie Wilkinson’s prediction in 2009 remains true today: “the ‘Hellermajority seems to want to have its cake and eat it, too – to recognize a right to bear arms without having to deal with any of the more unpleasant consequences of such a right.’”

“Another unpleasant consequence of Heller,” Mr. Ludwig points out: “what really awaits decision is the full amendment.” As shown in his previous article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law 360 Jan. 11, 2016), “the Court has yet to address much less decide the full text, one of several major oversights, each showing the amendment has nothing to do with an individual right.”

The amendment reads: “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.” Heller“dismissed the preamble about state militias, previously enough for ‘hundreds of judges,’ to focus on the ‘operative’ middle clause ‘to keep and bear Arms,’ and rejecting the military argot of the militia era, found an implied right to self-defense. Heller never addressed the last clause—the actual prohibition and verb on which the amendment rests.

Mr. Ludwig illustrates how the notion of a guarantee espoused by the Heller majority, which conservative Chief Justice Warren Burger had called a “fraud” just the decade before, is unsupported even by the text it addressed, and resulted from “implication and guesswork.” “‘Knowledge is essential to understanding; and understanding should precede judging,’ warned Justice Louis Brandeis.” Yet the Court, “in its most consequential decision for American lives today that took ‘seriously the concerns’ over ‘the problems of handgun violence in this country,’ in finding the ‘enshrinement of constitutional rights’ take ‘certain [legislative] policy choices off the table,’ guessed.”

This conjecture has been branded by Judge Wilkinson as “‘judicial lawmaking’ and ‘activism’ that ‘created a new blockbuster right’ complete with ‘embedded’ exceptions, ‘not apparent to the Court for over two centuries,’” and derided by conservative Judge Richard Posner “as ‘faux originalism’ and ‘law office history.’” The latter went further, “noting the author of Heller, Justice Antonin ‘Scalia and his staff labored mightily to produce a long opinion’ that ‘would convince, or perhaps just overwhelm, doubters. The range of historical references … is breathtaking, but it is not evidence of disinterested historical inquiry; it is evidence of the ability of well-staffed courts to produce snow jobs.’”

The “majority’s conjecture was evident in implying a right. It reasoned: ‘The very text,’” or the two-thirds it addressed, “‘implicitly recognizes the pre-existence of the right,’ which it defined as the ‘individual right to possess and carry weapons in case of confrontation,’ a questionable statement even at common law, and ‘novel’ variant that ‘lacks support in the text’ as Justice Stevens said in dissent. ‘No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth.’” “For the majority to imply a private right ignores not only the warning of Brandeis, but also of Chief Justice John Marshall that if such were the intent, the framers would ‘have expressed’ it, ‘in plain and intelligible language.’ And to imply the unstated disregards his further admonition: when amendments proposed in the states and Congress carried no ‘sentiment … generally expressed, to quiet fears thus extensively entertained,’ as true of the personal use of guns, ‘This court cannot so apply them.’”

The Heller dissents “were also guesswork,” Justice Stevens writing “surely [the amendment] protects a right that can be enforced by individuals,” with Justice Breyer clarifying “it ‘protects militia-related, not self-defense-related, interests,’ to ‘assure 18th-century citizens that they could keep arms for militia purposes,’ not ‘keep arms that they could have used for self-defense as well,’ which ‘is not the Amendment’s concern.’” But, as Mr. Ludwig notes, “‘surely’ is conjecture, and militia service was required by law, not a right.” And, “in positing an individual right,” Mr. Ludwig shows how “the dissents gave the majority carte blanche to find one, too.”

Lacking guidance from legal academics who consider the amendment “baffling,” it remains confounding to “the courts and legislators that rely on them because – like the Hellermajority, dissents, parties and over 60 amici, influenced by two centuries of myopic focus on the prefatory and rights clauses – no one ever considered the significance of the final clause, or other mass oversights.”

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.

Heller Sequels And 2nd Amendment, Still Undecided:Part 2

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.

Heller Sequels And 2nd Amendment, Still Undecided:Part 3

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.

Behind Raging Battles over Guns and a Court Nominee: Constitutional Illiteracy

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.

2nd Amendment Still Undecided, Hiding in Plain View

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.