Heller’s 2nd Amendment
Heller was wrongly decided. Overlooking text, among other glaring oversights, it cannot legally stand.
A timeline . . . of legal confusion
- 1791: The framers knew what the 2nd Amendment does—it confirms the States’ right to keep armed militia.
- 1820: A generation later, Justice Story could only speculate in a leading militia case, Houston v. Moore, the amendment “may not be thought to have any important bearing,” but “if it have, it confirms” “the States have authority to organize, arm, and discipline their own militia.” He cited the “concurrence of one of my brethren,” evidently his mentor, Chief Justice Marshall, a Federalist leader in Virginia’s ratification debates who, like James Madison, the amendment’s drafter, said: “If Congress neglects our militia, we can arm them.” Antifederalists demanded just that: an amendment confirming the States’ right. In Story’s reveal, the right of the people to keep and bear arms meant that of each State, or as Marshall said, “the people at large [who] hold the sword.”
- 1857: Yet another generation later, in unsupported dicta in Dred Scott v. Sandford, an infamous blunder that denied citizenship to Black Americans and led to the Civil War, Chief Justice Taney counted “the right to keep and bear arms” among the civil rights denied.
- 1939: The next watershed was U.S. v. Miller, which focused on the militia system for defense of the state, and unanimously held the amendment must be interpreted with that end in view. Throughout the 20th century, federal appeals courts uniformly held the amendment, as one wrote, was “meant solely to protect the right of the states to keep and maintain armed militia.”
- 2008: Then in District of Columbia v. Heller, Justice Scalia, purporting for a 5-4 majority to finally decide the amendment, read it to imply a personal right to own a gun, struck down D.C.’s handgun ban, and took longtime legislative choices to protect public safety “off the table.”
Since Heller opened the floodgates, the number of guns surged from 305 million to over 400 million, and annual gun deaths from 31,500 to 45,000. There have been over 800,000 deaths and counting, approaching the Civil War carnage sparked by Dred Scott, with millions more wounded and traumatized. In 2014, dissenting Justice Stevens warned how “profoundly important” it is to recognize Heller’s role in “the slaughter caused by the prevalence of guns.” After a national “Gun Epidemic” was declared in 2015, he revealed all justices “could foresee the negative consequences” of Heller’s “radical change in the law, that would greatly tie the hands” of legislative “solutions to the gun problem in America.”
A myopic Court and gun debate turned the 2nd Amendment into a suicide pact
Heller isn’t solely responsible for the gun epidemic, but is central to it. And central to Heller are failures of the Court and both sides of the gun debate to address, among other basics:
- the 2nd Amendment’s full text, for which Heller cannot legally stand
- The phrase “shall not be infringed,” a constitutional term of art that distinguishes public from private rights
- The first constitution, providing “the legislative right of any state … be not infringed” and “every state shall always keep up a well regulated and disciplined militia, sufficiently armed”
- The state right to keep armed militia, the sole issue debated at founding, affirmed throughout the 20th century
- The militia system dating to the 1181 Assize of Arms, an age-old legal system providing a state right and individual duty, and the focus of the unanimous 1939 decision in Miller
- The axiom of federalism cited by Hamilton and Madison, that state militia, not individuals, “afford complete security against invasions of public liberty” by federal tyranny
Systemic blind spots include the plain meaning of each term of the amendment, its origins, who determined its wording, when, and why. A product of superficial guesswork by both sides and the Court, Heller is a historic legal blunder that must be overturned.
Heller’s fatal flaws
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.
Historic legal blunder
Justice Scalia considered Heller a “legacy” opinion, a “vindication” of his doctrine of textual originalism and “best example” of what the amendment meant at founding. But that doctrine — using dictionaries as a shortcut for interpreting legal texts — is prone to oversimplification, superficial assumptions, and bad law. The best example? Heller itself.
Writing for the majority, Scalia, the author of a treatise on Reading Law, neglected the most basic canons of construction. His own treatise admonishes that “context is everything.” Yet in construing the amendment’s prefatory clause — A well regulated militia, being necessary to the security of a free State — neither Scalia nor anyone else in Heller ever mentioned the obvious context, the militia system, a thousand-year Anglo-American legal system that regulated militia for defense of the state. Though the militia system was the focus of the unanimous Miller decision in 1939 that led to uniform recognition of a state right, no one applied the system’s common usages in Heller, including well-regulated, militia, keep, and bear arms, all of which controvert what Heller, applying superficial originalism, implied from period dictionaries.
Similarly neglecting the canon that the country’s founding (organic) laws be read together, Scalia like everyone never compared the amendment to the first constitution that governed its drafting and supplied most terms — what he earlier recognized was “copied almost verbatim.” The Articles of Confederation preserved, under the militia system, the States’ right to “keep” “well regulated” “militia” in “arms,” as the “security of their Liberties,” and their “legislative right” (over internal affairs) not to be “infringed” by Congress. Madison warned “it can never be supposed that when copied into this constitution, a different meaning ought to be attached” to words taken from the original. Worse, Scalia rewrote the original’s reference to “well regulated” militia, and thus the amendment itself, into an impermissible imbecility, violating another canon of construction.
Scalia’s treatise further warns that “no interpretative fault is more common” than disregarding the “full text canon” that “no word be rendered superfluous.” Yet committing that common fault, Scalia and everyone else never construed key terms of the amendment.
For instance, his treatise warns “every word and every provision is to be given effect,” “none should be ignored,” yet Scalia never construed the term security in the prefatory phrase “security of a free State.” Nor did he address its origins, including why Madison substituted it for “defence.” Construing only the term free State as a “free polity,” Scalia further did not address the polity secured — the States against the federal government, as its context shows. Or the axiom of federalism, as explained by Alexander Hamilton, that the States ensure “security against invasions of the public liberty by the national authority.”
Likewise, in construing the people’s right “to keep and bear Arms,” which the amendment commands “shall not be infringed,” neither Scalia nor anyone else addressed the meaning of infringed. Instead he transposed infringed to “abridged,” though also forbidden in constitutional construction, and not even synonyms as any thesaurus indicates, but terms of art. As shown in 2nd Amendment Explained, abridge was used in the 1st Amendment and all others since that guard individual rights. Infringe was used in organic laws and the 2nd Amendment to protect a sovereign right. Justice Stevens for the dissents recognized the amendment “split the atom of sovereignty [into] two political capacities, one state and one federal, each protected from incursion by the other.” Yet, comparing the majority’s “word-by-word approach” to blind men each touching a part of the beast and failing to grasp its nature, the dissents also never touched the last part of the amendment — “shall not be infringed” — which carried that meaning.
Ignoring ordinary rules of construction and constitutional text, the majority and dissents rewrote the rest of the amendment into constitutional artifice — two variants of a superficial individual right, the decade after former Chief Justice Burger denounced that notion as “the greatest piece of fraud.” The majority found an implied right of self-defense of which there is “not a word” in the text or founding debates, as Stevens later noted, calling it “quite absurd.” The dissents’ own conjecture — “Surely it protects” a right to bear arms for militia duty — was mocked in turn by Scalia as a “right to be a soldier or to wage war—an absurdity.”
Leaving text unconstrued and whole fields of historical record unplowed, the Heller majority overturned the long-settled state right, the only right debated at founding and actual meaning, without addressing it.
Overlooking constitutional text, Heller cannot legally stand
Not construing the full text, including the final clause on which the amendment rests, Heller can have no binding effect. Overlooking text is “probably the strongest reason for not following a decision,” one high court recently said of a similar 140-year oversight, holding its prior decision “cannot stand.” Another held a similar opinion that did not “even consider the words … we now recognize to be pivotal,” has “nothing to contribute.”
Heller’s judicial rewrites of remaining text
Well regulated. Citing a dictionary, Scalia conjectured that well regulated “implies nothing more than … proper discipline,” not considering the Articles of Confederation that provided for “well regulated and disciplined militia.” To equate well regulated and disciplined, as Heller did, would reduce the first constitution that governed the amendment’s drafting to “disciplined and disciplined militia.” And violate another cardinal rule that the Constitution “receive a reasonable interpretation,” as Justice Story warned, not be “reduced to a state of imbecility.”
Militia. Scalia next speculated that militia meant “citizens’ militia,” not government “regulated military forces” (which he characterized as “organized,” contradicting his definition of regulated). Citizens’ militia outside forces constituted to serve public authority was a judicial invention that ignored the militia system, founding-era laws, and Hamilton’s “axiom of our political system” by which the States, not citizens, would resist federal tyranny. Heller had no more basis to find citizens’ militia (armed rabble) constitutionally protected than citizens’ juries (“tar-and-feather” mobs).
The people. Heller’s majority and dissents both read the “right of the people” as an individual right for the first time, though previously denounced as “a fraud.” Disagreeing on whether it protected “self-defense” or the “collective action of individuals” — deriding the other’s individual right as absurd — they did not consider whether, in the context of the militia system and a war powers dispute, the people’s right to keep and bear arms meant the people as represented by their state legislatures — in other words, the States.
Keep and bear arms. Ignoring the militia system and relying on dictionaries, Scalia reduced the people’s right to keep and bear arms to a nonsensical right to “possess a handgun” and “carry it in the home.” Misconstruing each term, that trivial construction forgets what Chief Justice Marshall said the Court “must never forget, that it is a constitution we are expounding.”
Citing dictionaries and little historical record, Heller rewrote the amendment to read: “A disciplined citizens’ militia, being necessary to the security of a free polity, the right of individuals to possess and carry a handgun in the home, shall not be abridged.”
Heller’s three untenable holdings
1. Heller’s primary holding — the right to keep and bear arms means a right to possess a handgun and carry it in the home — is glaringly wrong. As shown above, it substituted conjecture for legal construction, overlooked the militia system, founding laws, and text, and recast the 2nd Amendment as a right to “possess a handgun” and “carry it in the home.” That absurd wording is all too typical of the nonsensical rewrites of nearly every term of the amendment and of founding history found throughout the opinion.
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Acknowledging Heller’s strange holding in urging its extension outside the home, Justice Thomas later noted it is “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
2. Heller’s right to have guns “typically possessed by law-abiding citizens for lawful purposes” is another invention. Heller misread Miller’s description of “ordinary military equipment” of “the kind in common use at the time” to mean guns used in the home — ignoring Miller’s citations to the militia system and founding-era statutes that required specific arms on pain of penalty. Heller’s notion that militia and personal weapons “‘were one and the same’” cites only a 1980 case on “billy clubs,” which miscited a swords encyclopedia that contradicts it. Yet Heller’s “common use” fiction that it used to protect handguns has since been applied without challenge in thousands of cases, from assault rifles like AR-15s to large-capacity magazines, stun guns, even nunchucks.
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• In 2011, then-Judge Kavanaugh applied Heller’s fiction to AR-15s, used in the Sandy Hook Elementary and Stoneman Douglas High School massacres. Dissenting in Heller v. District of Columbia (D.C. Cir. 2011) (Heller II ), Kavanaugh reasonsed: since most Heller -protected handguns are semi-automatic and there is “no meaningful … constitutional distinction between semi-automatic handguns and semi- automatic rifles,” AR-15s, as “the most popular semi-automatic rifle,” should be protected. (One meaningful distinction: an AR-15 leaves an exit wound the size of a grapefruit.) Justices Thomas, Alito, and Gorsuch have repeatedly cited that fiction and Kavanaugh’s reasoning in assault rifle cases pending Court review.
• In 2016, the Supreme Court extended Heller’s “common use” fiction to stun guns, in Caetano v. Massachusetts, summarily reversing a state decision that the amendment does not extend to weapons outside arms contemplated at founding.
• In 2018, a district court, in Maloney v. Singas (E.D.N.Y.). held martial arts nunchaku to be typically possessed by law-abiding citizens for lawful purposes like stun guns, batons, and knives, and thus in “common use” and protected.
• In 2020, a 9th Circuit panel, in Duncan v. Becerra , overturned a California ban on large-capacity magazines (over 10 rounds) — enacted after several “heart-wrenching and highly publicized mass shootings” — holding because they come standard in popular handguns and comprise “half of all magazines in America,” they are in “common use” and protected. The 9th Circuit en banc overturned that decision in 2021 and again following Bruen in 2025, in Duncan v. Bonta, which is pending Supreme Court review.
3. Heller’s right of “citizens’ militia as a safeguard against tyranny” when order broke down has wrongly inspired pseudo militia, armed threats, and insurgencies. Misinformed activities include armed intimidation of statehouses, townhalls, polling places, and civic protests across the country, including at Charlottesville, Kenosha, Portland, and even the U.S. Capitol that turned deadly.
The idea of a citizens’ militia’s constitutional right to serve as a check on tyranny — the dangerous pablum of gun groups now given the loose imprimatur of the Court — has persisted too long. Fundamentally wrong, it ignores constitutional bedrock. Together the Constitution’s Guarantee Clause and 2nd Amendment serve as checks by which the federal and state governments, not individuals, ensure republican order in each other.
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Alexander Hamilton explained in The Federalist No. 28: it is “an axiom of our political system” that “State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority,” not “citizens [who] rush tumultuously to arms” with only “their courage and despair.” James Madison concurred in No. 46: “extravagant as the supposition is” of federal tyranny, “State Governments, with the people on their side, would be able to repel the danger.”
Even the 18th-century English jurist Heller cited for the oft-misunderstood “right of resistance,” William Blackstone, repudiated as “over-zealous” the notion that “allowed to every individual the right of determining [when order is endangered], and of employing private force to resist.” Calling that “doctrine productive of anarchy, and equally fatal to civil liberty as tyranny itself,” Blackstone explained that under the English system, “the parliament will call” a tyrannical king “to a just and severe account,” not citizens — a government check contemplated for the states under American federalism, which Heller overlooked.
Heller’s mythic “ancient right of individuals to keep and bear arms”
Justice Scalia premised Heller’s “right” on a mythic “ancient right of individuals to keep and bear arms,” under the 1689 English Declaration of Rights, the purported “predecessor” to the 2nd Amendment. He cited a 1985 treatise that gun advocates extolled as the “definitive” history of the right to arms by historian Joyce Malcolm, today an NRA-funded professor at the Scalia Law School. Two years later in McDonald, dissenting Justice Breyer noted “historians now tell us Heller misunderstood a key historical point” in finding an ancient right to arms, disputing Malcolm “8 to 1.” Not construing either the English declaration or the 2nd Amendment, all nine historians were guessing and wrong, along with all the lawyers and courts who simply deferred to them.
As explained in the recent article, Court Pauses Joyriding with AR-15s, as Reality Catches Up to Coherent Nonsense (Nat’l Law J. July 21, 2025):
Malcolm, contradicting Heller, conceded there was no “ancient” right to arms, only a duty from “time out of mind” to bear arms for the state, and that the English declaration was expressly a “reaffirmation of existing rights.”
But Malcolm speculated that its phrase, Protestants may have arms, “seems to have,” “very likely” created a new right nonetheless, though it “seems empty rhetoric” given militia and game laws, and is “no longer a right of Englishmen,” “so gently teased from use most Britons have no notion of when it came to be withdrawn.”
This rank guesswork is what rights advocates advance as “definitive,” Scalia declared “excellent,” and Thomas cited for its “impressive array of historical evidence.”
Opposing historians offered their own nonsense: a dual right of individuals “to possess arms to take part in defending the realm” and of Parliament to resist “should the sovereign usurp the laws.” Or as Breyer summarized: “the right of the people ‘to take part in the militia to defend their political liberties,’ and right of Parliament (which represented the people) to raise a militia even when the King sought to deny it that power.”
While Malcolm claimed the “key to construing” the amendment is the English declaration’s right to arms — “gently” withdrawn, unconstrued by any English court — that she purported to “construe” three centuries later, its meaning has never been clearly and finally established because neither Malcolm, nor any scholar or court, ever applied ordinary rules of construction to unlock its mystery.
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The article continues:
The futility of understanding both enactments is due to thinking that historians should construe law. Scalia fueled the notion — saying it’s “exceedingly difficult to plumb the original understanding of an ancient text,” a “task sometimes better suited to the historian than the lawyer”…. Lawyers and judges, awed by a founding record Scalia called “enormous,” defer to freewheeling opinions of historical “experts,” unsupported by rules it is a lawyer’s “business to know,” as Oliver Wendell Holmes said, advising they also study history. …
Applying ordinary construction, the English declaration on its face asserts grievances against the deposed Catholic James II for “extirpat[ing] the Protestant religion and laws and liberties of this kingdom,” and reasserts corresponding “ancient rights and liberties” against the incoming Protestant William I. The first military grievance (“keeping a standing army … without consent of Parliament”), and remedy (“unless it be with consent of Parliament, is against law”), plainly restored a parliamentary right over armies. The next (“causing good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law”), and remedy (“subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”) — superficially assumed to be a personal right — plainly restored Parliament’s right over militia.
As Justice Holmes reminded lawyers, meaning is found “not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” The grievance — Catholics armed and employed contrary to law — means armed and essentially, in modern parlance, deployed, as used throughout Anglo-American militia laws, even the Constitution. It referred to James I’s employment of Catholics in the militia at a time when many were barred by law. The remedy — Protestants (90-98% of the population) may have arms (common usage in 17th-century militia acts) — restored Parliament’s right to regulate militia. The phrase suitable to their conditions and as allowed by law (also from militia acts), reinforced that meaning. Even Malcolm recognized: “For generations, citizens had been required to contribute arms to the militia according to their condition, that is, their rank and income.”
Unmistakably, this war powers grievance and remedy reasserted Parliament’s right against the Crown, and Protestants’ duty, not right, under the militia system. Initial drafts to the same effect — “It is necessary to the publick Safety that…Protestants, should provide and keep Arms for the common Defence: And that the Arms, which have been seized from them be restored” — were fortified with requirements of suitability and parliamentary regulation. As should have been obvious, this was all part of the English conception, as historians otherwise recognized, of the “rights and powers” of “Parliamentary sovereignty that triumphed in the Glorious Revolution” and English Bill of Rights.
Skimming law, Malcolm neither construed the grievance (employing Catholics), nor remedy (have arms). Her opinions — the “clear language” provides an individual right, that “makes no mention whatsoever of the militia” — were doubly wrong (as was Heller that simply adopted them).
Opposing historians, rightly concluding, as Breyer said, the right had “everything to do with the militia” and there was no “reason to believe the Framers had something different in mind,” were wrong in conjuring a farrago (mixture or hodgepodge) of individual and sovereign rights, like the dissents in Heller and McDonald, and by control advocates since.
Virtually everything about Heller and today’s gun debate distorts the text and founding record, which when actually considered present a very different historical picture and constitutional right.
Remarkable failures of the adversary system
Heller’s radical departure from the 8-0 Miller Court decision in 1939, whose focus on the militia system gave rise to the uniformly-held state right, began with a comment years later by the ninth justice then awaiting confirmation. After the political violence of the 1960s that resulted in the Gun Control Act of 1968, Justice Douglas wrote there is “no reason why all pistols should not be barred,” decrying “the ease with which anyone can acquire” particularly dangerous weapons when a “powerful lobby dins into the ears of our citizenry that [they] are constitutional.”
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On the 1991 bicentennial of the 2nd Amendment, former Chief Justice Burger called the notion of a guaranteed individual right to guns a “fraud, I repeat the word fraud,” on “the American public by special interest groups.” Justice Powell 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. His nominated replacement, Judge Bork, noting the the NRA “is always arguing” the amendment, said its intent “was to guarantee the right of states to form militia, not for individuals to bear arms, ” adding it“ was designed to allow states” to defend against a “tyrannical national government.” Five bipartisan attorneys general urged the nation not to “let the gun lobbies’ distortion of the constitution cripple” gun control, when for “more than 200 years, the federal courts have unanimously” held it “concerns only the arming of the people in service to an organized state Militia.”
That led to decades of NRA activism attempting to recast the 2nd Amendment as an individual right, and hundreds of academic articles attempting to explain the amendment’s “baffling” wording.
By 2001 this resulted in the first federal appeals decision, U.S. v. Emerson (5th Cir.), to recognize such a right. Surprisingly, gun rights and control advocates each argued only variants of an individual right — to self-defense or to serve in the militia — suddenly abandoning without explanation the long-held state right.
This laid the groundwork for Heller. Both sides again argued their variants of an individual right, still assuming away the state right. The District of Columbia petitioned the Court to decide only “Whether [its handgun laws] violate the Second Amendment rights of individuals not affiliated with any state-regulated militia” — not whether it was a state right, or whether it was infringed as written. D.C.’s lawyer began oral argument stating: “What is at issue this morning is the scope and nature of the individual right protected.” Presented no relevant argument, the Heller majority adopted the “right of self-defense” while the dissents asserted the “right to militia service” — each side calling the other’s individual right absurd. The actual text and state right never stood a chance.
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Constitutional illiteracy among nonlawyers is unsurprising. But for both sides’ lawyers and constitutional scholars to argue a constitutional provision without addressing its full wording borders on malpractice.
The problem extends to members of Congress who seem not to understand the terms Congress has used for 200 years in passing amendments. In a 1982 Senate Report “The Right to Keep and Bear Arms,” provided by “constitutional scholars” funded by the NRA, Sen. Orrin Hatch said his Subcommittee on the Constitution would give “proper recognition” to the right, citing laws “which abridged,” not infringed it.
And to the NRA itself. Wayne LaPierre, making the same mistake after the Sandy Hook massacre that left 26 first-graders and teachers dead, declared it an “absolute abridgement” to regulate assault weapons.
Pursuing superficial individual rights on the left and right, gun control and rights advocates helped the Court drive the country into a constitutional ditch in 2008, where it remains stuck today, with dire consequences.
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Rather than a straightforward analysis applying Miller’s 1939 holding (that sawed-off shotguns were not “arms” under the militia system) to the broader question in Heller of what right was protected, both sides inexplicably ignored that system, by which militia — under centuries of militia enactments — were constituted for defense of the state. Lost in its seemingly contradictory wording, they each assumed the 2nd Amendment protects some variant of an individual right, not understanding how each term described that system and a state right.
Sidelining the militia system, both sides conflated military law (regulating militia forces, dating at least to the Assize of Arms of 1181), with civil and criminal law (governing civilian weapons use, since at least the Statute of Northampton of 1328). Their superficial assumption, that separate legal regimes overlapped, was no more true of Chaucer’s England and founding-era America than military and civil law today.
Self-defeating strategies, and a self-inflicted epidemic
It is a tragedy the country cannot pass meaningful gun measures to address a worsening epidemic.
On the surface, much responsibility would seem to lie with the NRA. For decades it thwarted dialogue and action, as acknowledged in a 2020 book by its former second-in-command, Josh Powell, Inside the NRA: A Tell-All Account of Corruption, Greed and Paranoia Within the Most Powerful Political Group in America. But the deeper problem is Heller, which enabled the epidemic and blocks basic reform, and what was argued.
The real tragedy is, Heller and its epidemic didn’t have to happen. We shouldn’t have to be suffering its deadly effects in the home — record suicides, mass shootings and other domestic violence, and accidents — or facing ever-worsening shootings in schools, churches and other public places.
Two decades of magical thinking, not just by rights advocates but gun control itself — inviting Heller’s error through a nonsensical “right to militia service” in the Court, and a self-defeating public relations message assuring America it can live with Heller’s radical result — have made those outcomes all but inevitable.
A misguided legal strategy invited Heller’s individual right, discarding without explanation the established state right. Espousing instead a theoretical right to serve — the “sophisticated collective right model” — control advocates lost for the first time in a federal appeals court, in Emerson in 2001. Doubling down, they lost again in the Supreme Court, in landmark cases in Heller (2008) and McDonald (2010). And continued to lose, in Caetano v. Massachusetts (2016), NYSRPA v. NYC (2020), NYSRPA v. Bruen (2022), and other cases since.
Seeing why the unsubstantiated “right to militia service” theory is losing isn’t hard. Nor is seeing how its futility left the Court no choice but to adopt the other individual right — to self-defense. And for dissenting justices, paying it lip service, to revert to describing the amendment for what it is — a state right.
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The futility is evident from the opening lines, and open contradiction, of the lead Heller dissent. Justice Stevens, after conjecturing “Surely it protects a right that can be enforced by individuals,” then recognized the amendment “was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification [debates] that the power of Congress to disarm the state militias … posed an intolerable threat to the sovereignty of the several States.” Unable to pay more than lip service to control advocates’ theory, Justice Stevens throughout his dissent, joined by Justices Souter, Ginsburg, and Breyer, recognized that the amendment:
• was “designed to protect the right of each of the States to maintain a well-regulated militia”
• refers to the people to “remind … that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution”
Dissenting in McDonald, Stevens was even more explicit:
• “It was the States, not private persons, on whose immediate behalf the Second Amendment was adopted,” which “serves the structural function of protecting the States from encroachment by an overreaching Federal Government.”
• “The Second Amendment, in other words, ‘is a federalism provision.’ It is directed at preserving the autonomy of the sovereign States … to safeguard the vitality of state governance.”
The academic theory that the compulsory duty to serve was also a right to serve — that was self-contradictory, contrary to the founding record, and repudiated by case law — never stood a chance.
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Control advocates’ collective right-to-serve argument rests on an unexamined academic theory: that republican thinking at founding conceived of compulsory duties, such as militia and jury service, as carrying “reciprocal” rights. In other words, that persons obligated to serve had a right to serve. But they never defined their “collective.” Or explained who it could be other than a body politic, the state. Nor did they address the utter contradiction of how a right could be compulsory, subject to fines or imprisonment if not exercised, unlike any other right.
Worse, the theory was contrary to the founding record, as the academics knew but chose to ignore. Just as there was “not a word” in founding debates about a right of self-defense, as they argued, there was none about their fanciful right to serve, either. Instead, what was debated, as they well know, was the Antifederalists’ demand that the States’ right to arm militia under the Articles of Confederation, left implied in the proposed Constitution, be made express. Unable to show how the amendment satisfied that demand — overlooking text and parts of the founding record — they resorted to speculation and invention.
No one ever offered support for the theory, other than indirect references in the founding record that advocates plainly misread. In Heller, D.C.’s counsel cited Pennsylvania’s constitution of 1776, which provided each citizen has “a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service”—misreading duties to pay taxes and serve in the militia as rights. Whatever mystery the militia holds today, no one would mistake a duty to pay taxes as a right. Counsel also misread Blackstone’s reference to a “reciprocal” right of citizens to society’s protection and corresponding duty to society — a simple legal concept where one holds the right and another owes the duty — as somehow a dual right and duty of each citizen.
Lacking real support, D.C.’s counsel could only conjecture at oral argument: “I do believe … it is a right to participate in the common defense and you have a right invokable in court if a Federal regulation interferes with your right to train for or whatever the militia has established” — an astonishing contention for which counsel cited no such reported case in the centuries before or since.
Simple legal research would have revealed not only a lack of support for the theory, but its repudiation. Militia cases long recognized that citizen-soldiers discharged from service, and officers denied command, suffer no civil injury — a proposition so obvious that the Heller majority rightly derided the claimed right to be a soldier as “an absurdity.” In 1827, the Court unanimously recognized in a leading militia case, Martin v. Mott, that “every obstacle to an efficient and immediate compliance” with militia service “necessarily tend[s] to jeopard[ize] the public interests.” “If … every inferior officer and soldier” could “subject [military command] to responsibility in a civil suit,” it “would be subversive of all discipline, and expose … officers to the chances of ruinous litigation.” Addressing republican theory, Blackstone made the same point, noting “obedience to some sovereign power” would be “an empty name, if every individual has a right to decide how far he himself shall obey.”
Research also would have shown there is no right to jury service, as academics claimed by analogy. It is “well established that jury service is not a fundamental right, rather it is characterized as an ‘honor and privilege,’” as one court noted, or as the Supreme Court said, a “duty, honor, and privilege.” Mistaking privileges for legal rights, academics cited the purported disqualified “right” to serve on a jury of Shays’ Rebellion insurrectionists. That misreads Massachusetts’ Disqualification Act of 1787, which provided they “shall not serve as Jurors, be eligible to any Town-Office” and “shall be disqualified from” being licensed as “School-Masters, Innkeepers or Retailers of spirituous liquors” — all privileges, not rights.
Conventional wisdom that there can be no clear explanation of the seemingly contradictory first two clauses of the 2nd Amendment is also wrong and self-defeating.
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For control advocates to argue the amendment’s meaning without addressing its full text was dereliction enough. So too was not presenting the Heller Court any opportunity to address the prevailing state right.
But the half-baked “right to militia service” argument deserved closer scrutiny before being adopted as the entire legal strategy the last two decades. The inability to cite a single case to support it — despite centuries of precedent under the militia system before and after the amendment — should have counseled against it. A modicum of legal research revealing it had been repudiated (with its purported “right to jury service” analogy) should have prevented it from ever being attempted.
The argument was never legally colorable, only wishful thinking.
They have had 25 years to reconsider their right-to-serve theory, after its rejection in 2001 in Emerson and again in Heller in 2008. They’ve had decades to re-double efforts to re-examine the amendment and state right, rather than write them off as unknowable and unprovable. Instead, they blindly persist with a dead end, continuing to peddle an individual right as nonsensical as Heller’s right of self-defense. Each and every day — for decades — Americans have been paying the price.
A misguided legal strategy not to challenge Heller has only perpetuated its deadly effects in American homes, enabled its extension to the streets, and threatens to soon allow AR-15s on every street corner in America.
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The opportunity for challenging Heller has been there for two decades, closed by gun control’s calculation and fear that doing so might result in something worse. One wonders what could be worse than Heller’s fueling a gun epidemic — one control advocates invited by arguing an individual right, allowed to grow, and choose to ignore even after it became a health crisis.
Gun control’s fatal miscalculations and failure to correct its untenable legal strategy make even less sense as the courts and soon the Supreme Court, take up assault rifles, which will only accelerate the crisis.
More inaction from miscalculation and fear is no answer — it’s time to pivot and finally challenge Heller. Control advocates should be winning these legal battles, returning to legislatures choices Heller took “off the table.” Nothing in the 2nd Amendment prevents reasonable limits on guns, subjecting guns to product liability and research, or owners to training, licensing, and insurance. Nothing prevents restoring common sense, public safety, and the domestic tranquility promised in the Constitution.
A self-defeating public relations strategy is summed up by the messaging of gun control — now watered down to “gun safety” — that supporters should overlook the fact gun violence is worsening because “we are winning.”
So too are “gun safety’s” messages — “The 2nd Amendment isn’t the problem” and “Keep the 2nd Amendment and strengthen gun laws” — which ignore the elephant in the room. As Justice Stevens recognized in urging Heller be overturned, any marginal reforms it allows are “no cure” for the epidemic.
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“Gun safety’s” insistence that Heller s 2nd Amendment isn’t the problem simply ignores the problem – that law-abiding citizens allowed by Heller to possess lawful weapons too often engage in impulsive behavior while armed, as known throughout our history. Justice Breyer repeated that simple truth in Heller, quoting the American Journal of Psychiatry: “‘Most murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion or intoxication.’”
Testimonials, and common sense, bear out that truth. As one op-ed, “I’m a veteran who was suicidal. It’s a good thing I didn’t have a gun” (Wash. Post 9.23.20), attests: “Alcohol and guns are a dangerous, often lethal combination. Having access to a firearm triples someone’s risk of death by suicide, and gun suicides are nearly always fatal, while non-firearm suicide attempts are not.” Yet the writer, a member of Everytown for Gun Safety’s Veterans Advisory Council, “unequivocally support[s] the right to bear arms.” It’s that misguided support that’s behind not just record suicides but skyrocketing gun violence.
“Gun safety’s” message: “We support the 2nd Amendment, but also support responsible gun control” is a “self-defeating strategy” that can “never win,” as Allan Lichtman writes in Repeal the 2nd Amendment: The Case for a Safer America. Historian Lichtman joined the late Justice Stevens in advocating repeal, however improbable, as easier than overturning Heller. Both miss that the amendment doesn’t need changing, remains constitutional bedrock, and that Heller is far more vulnerable than believed.
Otherwise Lichtman is right: “gun safety’s” half-baked message can never win. Given the reality that most gun deaths happen when law-abiding citizens are under the influence — of anger, passion, or intoxication, whether by alcohol, drugs, or aggrandized power from a gun — it’s like saying “We support the right to drive drunk, but also support responsible drunk driving.” The results are much the same.
Self-defeating political pandering to a popular right to own guns, given the influence our leaders’ words carry, has helped turn the Constitution into a suicide pact.
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Justice Robert Jackson, who argued the Miller case as solicitor general, later warned in another context, “if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact.”
It’s not just the Court. After the Parkland massacre, Max Boot in “The 2nd Amendment is being turned into a suicide pact,” fixed blame on politicians, “primarily but not exclusively Republicans,” for “idolatrous worship” of the amendment, and “continuing to insist there is no relationship” between guns and gun violence.
Weeks after the epidemic was declared, Senate Republicans pledged to block any Court nominee nine months before the 2016 election, Sen. Ted Cruz (R-TX) explaining “we’re one justice away from the 2nd Amendment being written out” (referring to the right Heller wrote in). Three days before, an Uber driver in Kalamazoo killed 6 in the 42nd mass shooting early that year. Two days after, a rampaging Kansas driver left 4 dead, 18 wounded. Two days later, a man shot his wife and 3 police officers, miles from Capitol Hill.
Undeterred, Cruz vowed to filibuster to protect this “long-cherished” right (of eight years), unlike rights liberal courts “invent that are nowhere in the Constitution,” overlooking that Heller, as criticized by conservative Judge Wilkinson on the court where Cruz clerked, “created a new blockbuster right not apparent to the Court for over two centuries.” Two days later, a Pittsburgh mass shooting left 6 dead, 3 wounded. The year before, Cruz declared the amendment “serves as a fundamental check on government tyranny,” all but inciting individuals to armed revolt, as then occurred in Oregon over land-use fees.
Even after gun violence hit home at a GOP baseball practice in 2017, when a man with political grievances shot House Whip Steve Scalise (R-LA) and three others (followed hours later by a shooting over overtime at a UPS facility that left four dead), the GOP still denied any connection to guns. Scalise maintained he “will continue fighting to protect every citizen’s 2nd Amendment right to keep and bear arms.”
Meanwhile a long list of Democrats headed by Presidents Clinton, Obama, and Biden, have also peddled a constitutional right to guns, blind to how it undermines their efforts to stem gun violence. So does another congressional shooting victim, former Rep. Gabby Giffords (D-AZ) and her Giffords Law Center to Prevent Gun Violence, along with other “gun safety” organizations.
For instance, President Obama in 2011 said “I believe in the 2nd Amendment. It does provide for Americans the right to bear arms for their protection, for their safety, for hunting, for a wide range of uses,” electoral pandering that went beyond even Heller. After the New York Times declared a national “Gun Epidemic” in 2015, he held a prime-time forum on gun violence and the next day, in an op-ed, “Our Responsibility,” called for reform to address “one of the greatest threats” to public health and safety. “Every year, more than 30,000 Americans have their lives cut short by guns. Suicides. Domestic violence. Accidents. Hundreds of thousands of Americans have lost” family members. Yet he reiterated his belief in a “guarantee” to gun ownership, helping to perpetuate myth, undercut reform, and all but ensure the growing violence.
So does Sen. Chris Murphy (D-CT), a leading voice against gun violence after the Sandy Hook massacre, whose book, The Violence Inside Us, revealed his “bombshell: I think Heller is basically correct.” He offered no real explanation, except to speculate “our founders likely believed in a common-law right for citizens to own guns,” a non-sequitur that doesn’t explain how a common-law right became a constitutional guarantee. His message that “America is not inescapably violent” and “we have the power to change” our polarized conversation, overlooks the real problem, Heller, and how political leaders perpetuate it.
The result of a misguided legal strategy, self-defeating messaging, and pandering has been more tragedy and futility: a country trapped in a self-inflicted crisis for which the “gun safety” movement has no real answer.
Heller can and must be overturned
Heller, a dangerous decision, “desperately needs” to be overturned
“This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.” —Judge J. Harvie Wilkinson, 2011
The real legacy of Heller is its intolerable effects on personal and public safety. Radically reshaping gun law through guesswork and oversights, Heller, extended nationwide and then to public spaces, is not just responsible for one tragic act of mayhem, but for turning America’s gun problem into a “Gun Epidemic” and now a “Public Health Crisis.” Thanks to Heller, which overturned, without addressing, the state right to arm militia, uniformly recognized in the 20th century — when there were no shooter drills in kindergarten — America has become an abattoir of daily mass shootings, daily school shootings, and record gun violence, whether suicides, domestic violence, road rage, or political violence.
Not only was this “foreseeable,” courts throughout our history have known unchecked proliferation leads to impulsive, confrontational behavior with deadly results. An 1832 treatise Heller cited condemned pistols that “frequently turned a quarrel into a bloody affray.” A decade later an Arkansas court rejected the idea the founders ever intended a private right “pregnant with such dangers.” In 1986, a unanimous Court by Justice Stevens recognized that a gun is “characteristically dangerous” and just “the display of a gun instills fear in the average citizen.” Even Malcolm, the historian Heller cited for its right, called it a “dangerous public freedom” which “for obvious reasons very few governments have ever been prepared to grant.” Ours never did, until Heller, never really construing the 2nd Amendment, simply rewrote it.
Since Heller opened the floodgates, over 800,000 Americans have died from gun violence, rivaling the Civil War carnage sparked by the infamous Dred Scott decision.
Justice Stevens in 2014, citing “the slaughter caused by the prevalence of guns,” warned it’s “profoundly important” that Americans see how Heller “curtails the power to regulate handguns that contribute to” unprecedented gun deaths. In 2018, he called modest measures useful but no cure, urging “more effective and lasting reform” by overturning Heller through repeal. In 2019, he called Heller the “worst self-inflicted wound in the Court’s history,” warning “overruling Heller is desperately needed to prevent [more] tragedies.”
Increased stakes: Heller’s extension to public carry, and now assault weapons
The deadly stakes continue to increase. Even before the Court extended Heller to public carry, its right “to carry a handgun in the home” for the “core lawful purpose of self-defense,” had been steadily extended outside the home. After the Court formally recognized a right to carry guns in public, in Bruen in 2022, the epidemic became a declared health crisis. With the Court now poised to decide whether to extend Heller further, to allow assault rifles like AR-15s and large capacity magazines, the crisis stands to grow even worse.
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• In 2012, days before the Sandy Hook Elementary massacre, Judge Posner for the 7th Circuit, who has criticized Heller as a “snow job,” was constrained to hold its right of self-defense “is as important outside the home as inside,” in Moore v.Madigan (7th Cir. 2012), noting “a Chicagoan is a good deal more likely to be attacked on a sidewalk … than in his apartment on the 35th floor of the Park Tower.”
• In 2017 the D.C. Circuit, applying Heller’s core right of self-defense, gutted D.C.’s public carry law, in Wrenn v. District of Columbia (D.C. Cir. 2017). Declining to risk Supreme Court review after gun control’s prior losses in Heller and McDonald, D.C.’s attorney general explained: “Public safety is [of] paramount concern” but “we must reckon with the fact that an adverse decision by the Supreme Court could have far-ranging negative effects not just on District residents, but on the country as a whole.”
• In 2022, the Supreme Court in Bruen, its first major 2nd Amendment case in over a decade, formally extended Heller from the home to the streets, turning the gun epidemic into a health crisis.
• In 2025, the Court paused review of assault rifles and large capacity magazines, leaving in place for now Maryland’s ban on AR-15s, in Snope v. Brown. Signaling there were not yet five votes to reverse, Justice Kavanaugh, calling the ban “questionable” given AR-15s’ wide acceptance as “‘lawful possessions,’” cited other pending cases that “should assist” the Court, which “presumably will address the issue soon.” Justices Thomas, Alito, and Gorsuch would have granted review, with Thomas writing it was “difficult to see” how a ban survives Heller’s common-use test, stating “I would not wait to decide whether the government can ban the most popular rifle in America.”
Without a better approach—one that finally challenges Heller and persuades the Court of its historic error—such cases will only accelerate the Heller-fueled crisis.
Overrule Heller, end the Gun Epidemic
Chief Justice Roberts has recognized “when this Court needs to say enough is enough.” This is one of those times. The Court has the duty, with its institutional authority at stake, to recognize it has not addressed the full text and founding record, and still needs to decide what the 2nd Amendment means.
It is past time for courts, lawyers, and scholars to stop guessing. Stop assuming away text and longtime meaning. Stop rewriting “the right of each of the States to maintain a well-regulated militia,” as Justice Stevens recognized, into nonsensical individual rights each side recognizes is absurd. And stop turning a gun problem into an epidemic.
It’s time to heed Justice Stevens: to end this epidemic, we have to “overrule Heller ” — “the worst self-inflicted wound in the Court’s history.”
Increased Urgency
The Court is poised to extend Heller again to allow joyriding with AR-15s, whose ballistic impact a police chief described as “sickening and unacceptable.” Last term, the Court paused review of assault rifle bans pending further lower court development. Justices Thomas, Alito and Gorsuch argued it was “difficult to see” how the states could ban AR-15s, the most popular rifle in America, under Heller’s (invented) common-use test. Justice Kavanaugh, who reached that conclusion in a prior case, expects the issue will be taken up “soon.”
Increasingly perilous issues stemming from Heller—which got the Second Amendment all wrong—demand a course change, not just by the Court but both sides of the gun debate.
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