Another unpleasant consequence of the Supreme Court’s reluctance to deal with the aftermath of Heller — the actual Second Amendment still awaits decision. As shown in the article “2nd Amendment Still Undecided, Hiding in Plain View” (Law360 Jan. 11, 2016), published a month before Justice Scalia’s death, 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 Second 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.
One would think in construing the right “to keep and bear Arms” which “shall not be infringed,” the Court decided the meaning of “infringed.” Yet nowhere in Heller, a sharply divided 5-4 decision overturning 200 years of law that the right was collective and not individual, did the Court even address the verb on which the Amendment rests.
Instead Heller transposed “infringed” to “abridged” (“Congress was given no power to abridge the ancient right of individuals to keep and bear arms”), violating the canon that transposing terms is not “tolerated.” It is also rudimentary that: “In expounding the Constitution … every word must be given its due force, and appropriate meaning[.]” And where words “cannot, in any appropriate sense, be said to be synonymous,” as Justice Joseph Story once warned, to “suppose them to signify the same thing,” like Heller did, “would be to defeat the obvious purposes of both.”
Justice Antonin Scalia, author of Heller, stated in his own treatise: “every word and every provision is to be given effect. None should be ignored”— one of many canons not followed in Heller, which wrote out the last clause of the Amendment, and with it, the clear meaning.
Heller Can Have No Binding Effect
Not deciding the full text, Heller can have no binding effect. And because Heller construed no other word in relation to “infringed,” as mandated by another canon, little is left that does not require full reconsideration. In other words, Heller settled nothing at all.
Nothing prevents the courts from considering what Heller never decided: the Amendment’s actual wording. If textual originalism is “adhering to the original meaning of the text of the Constitution — each and every word,” as adherents insist, then whatever that meaning is, no court has yet to say. And when the full text is considered and an overlooked verb is read with its subjects, the original meaning of the Amendment becomes clear — each and every word. Other mass oversights make it even clearer.
Where “there was no assignment of error raising the question and no argument on the subject was presented to this court,” “‘[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’” KVOS, Inc. v. Associated Press (1936).
Overlooking an enactment is “‘[p]robably the strongest reason’ for not following a decision.” Fluor Corp. v. Super. Ct. (Cal. 2015). As one court put it, though “it seems surprising,” the prior opinion “did not focus on or even consider the words … we now recognize to be pivotal” and, “therefore, has nothing to contribute to … what the legislature intended[.]” State v. Sandoval (Or. 2007). Indeed, “[w]hen a palpable mistake” is made in “overlooking a portion of the statute involved, … we think it not only the duty, but … pleasure as well, of the court to rectify the error and give expression to the law as written[.]” Remey v. Iowa C.R. Co. (Iowa 1902).
Courts Made and Must Unmake this “Mess”
Meanwhile the country remains unaware of the pernicious effects and flaws of Heller.
As said in Common Sense, the pamphlet that inspired the revolution and founding: “a long Habit of not thinking a Thing wrong, gives it a superficial appearance of being right.” Or as the Court once said in declaring its prior decision unconstitutional: “But, notwithstanding … the frequency with which the doctrine has been reiterated, there stands … the Constitution of the United States, which recognizes and preserves the autonomy … of the States,” Erie R.R. Co. v. Tompkins (1938), remarkably expressing what the Second Amendment right of states to their militia stands for, too.
It is past time to recognize where the problem lies: a historic blunder that overlooked the text of the constitutional provision Heller purported to construe, and for the first time sanctioned a right to guns and insurrection and all-too-predictable gun and insurrection violence.
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 about a case of “judge-invented doctrine,” stating “its error has grown more glaringly obvious” and “stare decisis does not recommend its retention. Rather than insist that Congress clean up a mess that I helped make, I would overrule” it. Michigan v. Bay Mills Indian Cmty. (2014).
Or as Justice Scalia’s successor once wrote: “After all, it is the ‘duty of the judicial department to say what the law is,’ … not to develop a rococo jurisprudence about … a hypothetical law that Congress might’ve — but clearly didn’t — enact.” Prost v. Anderson (10th Cir. 2011) (Gorsuch, J.). Heller, transposing “infringed” to “abridged” and not deciding the verb on which the Amendment rests, is “rococo jurisprudence” on “a hypothetical law” the First Congress and ratifying states “clearly didn’t—enact.”