HELLER’S 2ND AMENDMENT

Indeed, the citizens’ militia in the 1787 Shays’ Rebellion—that seized Massachusetts ourthouses over taxes for war debt, leading months later to the Constitutional Convention, the Constitution, and express check to “suppress Insurrections”—not being in service of government authority, was denounced as “the mob.”

Even the voluntary militia oft-cited by gun-rights advocates—proposed by the short-lived Feb. 6, 1775 Fairfax County Militia Plan that George Mason sent George Washington (by which “Inhabitants of Fairfax County … voluntarily agreed” to “embody ourselves into a Militia for this County”)—was constituted to serve government. It implemented Mason’s Jan. 17, 1775 Resolutions of the Fairfax County Committee (citing similar committees in Maryland and Massachusetts), as well as his Sept. 21, 1774 resolution to form a county militia and his influential Fairfax County Resolves that called for action by the Virginia General Assembly and the creation of a Continental Congress.

Reaffirming that trivial construction, Justice Thomas has since urged its extension outside the home, noting it’s “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen”—missing both the double-entendre and “imbecility” of such a right.

Also missed is how the Heller majority effectively rewrote the legal and common meaning of bear arms in broad swaths of Court precedents and federal law. Take the Immigration and Nationality Act and Naturalization Oath of Allegiance, “that I will bear arms on behalf of the United States when required by law.” Millions of new citizens would perhaps welcome Heller’s reinterpretation that strips them of the duty to bear military weapons, in favor of carrying handguns in their homes.

• In 2011 then-Judge Kavanaugh applied this fiction to AR-15s, used in the Sandy Hook Elementary and Stoneman Douglas High School massacres, in Heller v. District of Columbia (D.C. Cir. 2011) ( Heller II ) (Kavanaugh, J., dissenting). His reasoning: since most Heller -protected handguns are semi-automatic and there’s “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.)

• In 2015, the D.C. Circuit held unconstitutional a limit of one handgun a month in Heller v. District of Columbia (D.C. Cir. 2015) (Heller III ), a ruling the dissent noted would “authorize everyone to possess his own Rambo-style armory.”

• In 2016, the Supreme Court applied its “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 New York federal court held martial arts nunchaku—typically possessed by law-abiding citizens for lawful purposes like stun guns, batons, and knives—to be in “common use” and thus protected, in Maloney v. Singas E.D.N.Y. 2018).

• In 2020, the Ninth Circuit overturned a California ban on large-capacity magazines having over 10 rounds, in Duncan v. Becerra (9th Cir. 2020). Noting the law was passed after “heart-wrenching and highly publicized mass shootings,” the court held because such magazines come standard in popular handguns and comprise “half of all magazines in America,” they are in “common use” and thus protected.

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 added, 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.”

Similarly, the 18th-century English jurist William Blackstone, whom Heller cited for his oft-misused reference to a “right of resistance,” 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” as a “doctrine productive of anarchy, and equally fatal to civil liberty as tyranny itself.” Even under the English system, “the parliament will call” a tyrannical king “to a just and severe account,” not citizens.

Justice Breyer made this point two years later in McDonald, noting English historians “now tell us that Heller misunderstood a key historical point.” “As properly understood … [the Declaration’s] right to bear arms ‘ensured that Parliament had the power’ to arm the citizenry: ‘to defend the realm’” and “should ‘the sovereign usurp the English Constitution.’” “Nor can the historians find any convincing reason to believe that the Framers had something different in mind” for the 2^nd Amendment.

Heller also omitted pertinent terms of the 1689 Declaration, which declared the Catholic king James II was forced to abdicate for abusing war powers by: “keeping a standing army … in time of peace without consent of Parliament, and quartering soldiers contrary to law;” and “causing … Protestants to be disarmed at the same time when papists were both armed and employed contrary to law.” Codified as “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown,” it listed Parliament’s powers over armies and arms the incoming Protestant king William III would have to acknowledge before ascending the throne: “That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;” and “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. ” Other 1689 bills expanded Parliament’s war powers further.

Similarly, on the 1991 bicentennial of the Amendment, Chief Justice Burger, who knew the difference between it and a common law right to the shotgun he cherished, called a constitutional 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 “ National Rifle Association 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.”

Constitutional illiteracy among nonlawyers is unsurprising. But for both sides’ lawyers to argue a constitutional provision without addressing its wording borders on malpractice. The problem extends to members of Congress who do not know terms of art it has used for 200 years in constitutional amendments. In a 1982 Senate Report “The Right to Keep and Bear Arms,” Sen. Orrin Hatch assured his Subcommittee on the Constitution would give “proper recognition” to the right, citing laws “which abridged,” not infringed it, provided by “constitutional scholars” funded by the NRA. NRA’s Wayne LaPierre, later making the same mistake, declared it an “absolute abridgement” to regulate assault weapons, after the Sandy Hook massacre that left 26 first-graders and teachers dead.

Rather than pursue a straightforward analysis extending Miller’s limited 1939 holding (that sawed-off shotguns were not “arms” under the militia system, and thus taxable by Congress) to the broader question in Heller of what right was protected, both sides largely ignored that centuries-old system, under which militia by definition were constituted by the sovereign for defense of the state and public safety. Lost in its seemingly contradictory wording, they each assumed the Amendment protects some individual right, not understanding how each term described that system.

At bottom, both sides confused military law (regulating armed forces) with civil and criminal law (providing and restricting rights to own and carry weapons). That modern conceit assumes those separate legal regimes overlapped in medieval England and founding America, which is clearly not the case today.

The futility is evident from the opening lines, and open contradiction, of the lead Heller dissent. Justice Stevens, 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.

Notice the shift? Even if there were a “right that can be enforced by individuals,” individuals don’t “maintain” a well-regulated militia: it is only “the people of each of the several States” exercising “the sovereignty of the several States” that can. The first statement, gun control’s argument, has little to do with the second, the real meaning.

Unable to pay more than lip service to gun control’s theory, Justice Stevens throughout his Heller dissent, joined by Justices Souter, Ginsburg, and Breyer, recognized that the 2^nd 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”

Likewise 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.”

Gun control’s “right to militia service” argument rests on an academic construction. Dubbed the “sophisticated collective rights model,” it is a theory that republican thinking at founding conceived of compulsory duties of militia and jury service as carrying “reciprocal” rights. It never explained who exactly the undefined collective could be other than a state. Nor the obvious contradiction of how a right could be compulsory, subject to fines or imprisonment if not exercised, unlike any other right.

Worse, the theory was plainly contrary to the founding record. Just as there is “not a word” in founding debates about Heller’s right of self-defense, as Justice Stevens and academics have noted, there is none about a right to militia service, either. Neither dog barked. The one that did, as academics themselves insist, demanded the States’ existing right to maintain and arm militia (left implied in the new U.S. Constitution) be made express. Unable to show how the Amendment satisfied that demand—overlooking text and key parts of the founding record—academics resorted to speculation and invention.

Gun control offered no support for its theory, other than indirect references it misread. For instance in Heller, D.C. cited the 1776 Pennsylvania Constitution provision that 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”—inexplicably misreading duties to pay taxes and serve in the militia as rights . Whatever mystery the militia holds today, no one could mistake a duty to pay taxes as a right. D.C. also miscited 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 the other owes a duty—as somehow a dual right and duty of each citizen.

Lacking real support, D.C.’s lawyer 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 when no militiaman asserted such a right after the Amendment. This, despite the militia being called into federal service to suppress insurrections and during the War of 1812, Mexican War, and Civil War.

The theory deserved closer scrutiny before being adopted as gun control’s primary legal strategy for the last two decades. Research would have revealed not only a lack of support for the theory, but its legal repudiation.

Militia cases have 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 gun control’s argument as “an absurdity.” As a unanimous Supreme Court observed in 1827, in Martin v. Mott, militia “service is a military service … and every obstacle to an efficient and immediate compliance, necessarily tend 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.” Blackstone, addressing republican theory, made the same point noting “civil liberty, rightly understood” protects “the rights of individuals by the united force of society: society could not be maintained … without obedience to some sovereign power,” adding it would be “an empty name, if every individual has a right to decide how far he himself shall obey.”

Similarly, jury duty, another civic institution enshrined in the Constitution along with the militia, carried no “right” to serve. Research likewise would have shown it is “well established that jury service is not a fundamental right, rather it is characterized as an ‘honor and privilege,’” or as the Supreme Court has said, a “duty, honor, and privilege.”

Part of the problem is academics further confuse privileges for legal rights. Citing the Shays’ Rebellion against Massachusetts (that led to the Constitutional Convention), they claim insurrectionists (not hung or unwilling to swear an oath of allegiance) were disqualified of their rights to firearms and to serve on juries. In fact, the 1787 Disqualification Act provided they “shall not serve as Jurors, be eligible to any Town-Office” and “shall be disqualified from holding … the employments of School-Masters, Innkeepers or Retailers of spirituous liquors”—all privileges, not rights.

For gun control’s lawyers to argue the Amendment’s meaning without addressing its full text was dereliction enough. So too was not presenting the Heller Court an 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 legal precedent under the militia system before the Amendment, and two centuries after—should have counseled against it. Simple research revealing it had been repudiated (along with its purported “right to jury service” analogy) should have prevented it from being attempted.

The argument was never legally colorable, only wishful thinking.

Gun control has had two decades to re-examine its argument after it lost in 2001 in Emerson, and again in Heller and McDonald. It has had decades to re-double its efforts to understand the Amendment, and the established state right, rather than write them off as unknowable and unprovable. Instead it persists in a constitutional dead end, as
untenable as Heller’s right of self-defense.

Because the Amendment protects only a state right to maintain and arm militia, and has nothing to do with any individual right, what gun-control and rights advocates have argued the last two decades in the Supreme Court, and in over a thousand lower courts since, has been wrong, both legal delusions, and a tragic waste. Each and every day, Americans are paying the price.

The opportunity for challenging Heller has been there for a decade, closed by gun control’s calculation and fear that doing so might result in something worse. One wonders what could be worse than Heller fueling an ever-worsening epidemic—one that gun control invited, allowed to grow, and chose to ignore.

Its fatal miscalculations, fearfulness, and failure to correct its untenable legal strategy, make even less sense as the federal courts and soon the Supreme Court take up public carry, accelerating the epidemic.

Rather than continue to act out of miscalculation and fear, now is the time for a pivot to challenge Heller. Gun control, and the nation, should be winning these legal battles and the war, returning to legislatures policy choices Heller took “off the table.” Nothing in the Amendment prevents legislative restrictions on guns, subjecting guns to product liability and research, or owners to training, licensing, and insurance. Nothing prevents restoring public safety, and the domestic tranquility promised in the Constitution.

The insistence that the Amendment under Heller isn’t the problem ignores human nature. Law-abiding citizens possessing lawful weapons—who pass background checks and raise no red flags—too often engage in impulsive behavior when empowered by guns. Justice Breyer cited that simple truth in Heller, quoting a D.C. committee report that cited the American Journal of Psychiatry, noting “‘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, Sept. 23, 2020), attests: “Alcohol and guns are a dangerous, often lethal combination. Having access to a firearm also 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 belief that’s behind not just record suicides but skyrocketing domestic and street violence.

Gun control’s message of “We support the Second Amendment, but also support responsible gun control” has been called out as a “self-defeating strategy” that can “never win” in a 2020 book, Repeal the Second Amendment: The Case for a Safer America. Historian Allan Lichtman joined the late Justice Stevens in advocating repeal, however improbable, as easier than seeking to overturn Heller. Both miss that the Amendment doesn’t need changing and remains an essential constitutional check in our federal system. Heller, on the other hand, is far more vulnerable than believed.

But Lichtman otherwise is right: gun control’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 sense of empowerment in wielding 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.

Justice 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. In a Washington Post op-ed, “The Second Amendment is being turned into a suicide pact,” Max Boot after the Parkland school massacre fixed blame on politicians, “primarily but not exclusively Republicans,” for “idolatrous worship of the Second 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 Supreme Court nominee in Feb. 2016, nine months before an election, Sen. Ted Cruz (R-TX) saying “we’re one justice away from the Second Amendment being written out” (referring to a right to guns newly found in Heller ). Three days before, an Uber driver in Kalamazoo killed 6 in the 42^nd mass shooting already that year. Two days after, a rampaging Kansas driver left 4 dead, 18 wounded. Two days later, a Virginia man shot his wife and 3 police officers, miles from Capitol Hill.

Undeterred, Sen. Cruz then vowed to filibuster to protect this “long-cherished” right (ofeight years), which “even nonlawyers can’t miss,” unlike rights liberal courts “invent that are nowhere in the Constitution,” overlooking text himself. Unstated was Heller’s “judicial activism,” criticized by conservative Judge Wilkinson on the court where Cruz clerked, “creat[ing] a new blockbuster right not apparent to the Court for over two centuries,” much less nonlawyers. 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” (misciting Justice Story who stressed “the importance of a well regulated militia”), all but inciting individuals to armed revolt, as then occurred in Oregon over land-use fees.

Even after gun violence hit home in 2017 at a Republican baseball practice, when a shooter with political grievances wounded House Majority Whip Steve Scalise (R-LA) and three others (followed hours later by another grievance shooting at a UPS facility that left four dead, over overtime), the GOP continued to deny a connection to guns. And Scalise still maintains 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 and Obama, and past nominee Hillary Clinton, 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 “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. Gang shootouts. 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 worsening violence.

The latest example is Sen. Chris Murphy (D-CT), a leading voice for confronting gun violence after the Sandy Hook Elementary massacre, whose 2020 book, The Violence Inside Us, reveals his “bombshell: I think Heller is basically correct.” He offers 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 was elevated to 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 enable it.

• In 2012, days before the Sandy Hook massacre, Judge Posner for the 7^th Circuit Court of Appeals, who has called Heller a “snow job,” was constrained to hold its right of self-defense “is as important outside the home as inside,” in Moore v.Madigan (7^th Cir. 2012). Quoting Heller that the Amendment “‘guarantees the individual right to possess and carry weapons in case of confrontation,’” which is not limited to the home, he noted “a Chicagoan is a good deal more likely to be attacked on a sidewalk … than in his apartment on the 35^th floor of the Park Tower.”

• In 2017 the D.C. Circuit, applying Heller’s core right of self-defense, gutted much of D.C.’s public carry law in Wrenn v. District of Columbia (D.C. Cir. 2017). D.C.’s Attorney General declined to seek Supreme Court review, after gun control’s arguments resulted in Heller and McDonald, stating: “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 its first major 2^nd Amendment case in over a decade, formally extended Heller from the home to the streets, making the gun epidemic worse.