Heller’s “radical change in the law, that greatly ties the hands” of legislatures seeking “solutions to the gun problem” “desperately needs” to be overturned. – Justice John Paul Stevens
In 2008 a divided Supreme Court in District of Columbia v. Heller, elevated a common law right of self-defense to a 2nd Amendment right to own a gun. For the first time in 200 years, a 5- 4 majority read the right “to keep and bear arms”—long held by federal courts as “meant solely to protect the right of the states to keep and maintain armed militia” — to provide an individual right to “handgun possession” and “to carry it in the home.”
That odd holding, extended nationwide in 2010 in McDonald v. Chicago, turned our gun problem into an epidemic.
A decade later, dissenting Justice Stevens revealed all justices “could foresee the negative consequences” of Heller’s “radical change in the law, that would greatly tie the hands” of legislatures seeking “solutions to the gun problem in America.”
Heller isn’t solely responsible for the gun epidemic, but it is central to it. And central to Heller is a remarkable failure of the adversary system. Together gun-control and gun-rights advocates—along with the Heller Court—failed to address, or assumed away if mentioned:
• the Amendment’s full text, in light of which Heller cannot legally stand
• The term ‘infringed,’ a term of art that distinguishes public from private rights
• The state right to maintain and arm militia, despite being the issue debated at founding, and reaffirmed throughout the 20th century by federal appeals courts
The axiom of federalism cited by Hamilton and Madison that state militia, not citizens, “afford complete security against invasions of the public liberty” by federal tyranny
• The militia system (dating to the 1181 Assize of Arms) and its essential elements, though the focus of the unanimous Supreme Court decision in United States v. Miller
• The first U.S. constitution, providing “every state shall always keep up a well regulated and disciplined militia, sufficiently armed,” disregarding a clear antecedent
Other systemic blind spots include the actual sources and plain meaning of the Amendment, as well as who determined its wording, when, where, and why.
A product of speculation and invention by both sides and the Court, Heller is a dangerous decision that must be overturned. What’s needed is an approach that sheds light on the real Amendment, corrects self-defeating strategies, and ends America’s self-inflicted epidemic.
Historic legal blunder
Justice Scalia, writing for the majority, considered Heller a “legacy” opinion, a “vindication” of his doctrine of textual originalism, and “the best example” of what the 2nd Amendment meant at founding. But that doctrine—which treats dictionaries as a shortcut for knowledge—is prone to oversimplification, faulty assumptions, and bad law. The best example? Heller itself.
“In expounding the Constitution,” as long recognized, “every word must be given its due force, and appropriate meaning.” One would think that in interpreting the people’s right “to keep and bear Arms,” which the Amendment commands “shall not be infringed,” Heller would have considered the meaning of infringed. Yet nowhere did the Court even address it. Nor did either party, or dozens of gun control and rights groups, scholars, and linguists.
Instead Justice Scalia twice transposed infringed to abridged, though forbidden in constitutional construction. They also are not synonyms (as any thesaurus shows) but distinct terms of art. Abridge was used in the 1st Amendment and all amendments since that guard individual rights. Infringe was used for decades prior to the founding and in the 2nd Amendment to protect a sovereign right.
Justice Stevens in dissent 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 the parable of the six blind men (each touching a part and failing to grasp the nature of the elephant), the dissents likewise never touched its last part—shall not be infringed—which carried that meaning.
Instead the majority and dissents found variants of a supposed individual right, the decade after former Chief Justice Burger denounced that notion as “the greatest piece of fraud.” The majority found (largely in dictionaries) an implied right of self-defense, of which there is “not a word” in the text or founding debates as Justice Stevens later noted, calling it “really quite absurd.” The dissents’ own conjecture—“Surely it protects” an individual right to bear arms for militia duty—was mocked in turn by Justice Scalia as a “right to be a soldier or to wage war—an absurdity.” Neither explained their radical departure from the long-held state right.
Leaving constitutional text and whole fields of historical record unplowed, the Heller majority overturned the established state right without even addressing it, taking vital legislative choices “off the table.”
Virtually everything about Heller distorts the text and record, which when considered present a very different historical picture and constitutional right.
Overlooking constitutional text, Heller cannot legally stand
Having construed only two thirds of the 2nd Amendment and not the final clause on which it rests, Heller can have no binding (stare decisis) effect.
Overlooking text is “probably the strongest reason for not following a decision,” one high court recently said of a similar 140-year oversight in holding its prior decision “cannot stand.” When text is overlooked, as another held, it is “the duty” of a court “to rectify the error and give expression to the law as written.”
Heller’s judicial rewrites of remaining text
Well Regulated. Heller conjectured that well regulated “implies nothing more than … proper discipline,” never considering the first U.S. constitution, the Articles of Confederation, that provided for “well regulated and disciplined militia.” To equate well regulated and disciplined, as Heller did, would reduce the constitution that governed the Revolution and founding—and the drafting of the Amendment itself—to “disciplined and disciplined militia,” or nonsense.
Militia. Heller speculated that militia meant “citizens’ militia,” not government “regulated military forces,” which the majority characterized as “organized” (contradicting its own definition of regulated). Citizens’ militia apart from militia constituted to serve the public authority was a judicial invention that ignored the militia system, founding-era laws, and the “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 mobs) constitutionally protected than citizens’ juries (“tar-and-feather” or lynch mobs).
Indeed, the citizens’ militia in the 1787 Shays’ Rebellion—that seized Massachusetts courthouses 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.
The People. Heller’s majority and dissents read the “right of the people” as an individual right, disagreeing on whether it protected “self-defense” or the “collective action of individuals.” They did not consider whether, in the context of militia (and a war powers dispute at founding), 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. Heller reduced the people’s right to keep and bear arms to a right to “possess a handgun” and “carry it in the home.” Besides 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.” Likewise Justice Story’s cardinal rule: the Constitution “is to receive a reasonable interpretation of its language,” not be “reduced to a state of imbecility.”
Overall Heller’s majority, citing dictionaries and little historical record, effectively rewrote the 2nd Amendment to mean:
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.
For more, read AEPs breakdown of the 2nd Amendment.
Heller’s three untenable holdings
- Heller’s primary holding—that the 2nd Amendment right to keep and bear arms means a right to “possess” a handgun and “carry it in the home”—overlooks pivotal text, rewrites the rest, and is at its base unconstitutional. Read more.
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.
- 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 its citations to the militia system and statutes that required specific arms on pain of penalty. Heller’s further notion that militia and personal weapons “‘were one and the same’” came from one 1980 case about wood clubs, which miscited an encyclopedia on swords stating otherwise. Yet Heller’s “common use” fiction that it peddled to protect handguns has since been applied without challenge in a thousand cases, from assault rifles to large-capacity magazines, stun guns, even nunchucks. For example:
- In 2011 then-Judge Kavanaugh applied this fiction to AR-15s, used in the Sandy HookElementary 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 inCaetano 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 possessedby law-abiding citizens for lawful purposes like stun guns, batons, and knives—to bein “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 magazineshaving 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.
- Heller’s final right of “citizens’ militia as a safeguard against tyranny” when order broke down, has inspired misinformed armed insurgencies against government, as well as pseudo-
militia activity to threaten statehouses and townhalls, “police” the border, and intimidate 1st Amendment protests across the country, including at Charlottesville, Kenosha, and Portland that turned deadly.
The idea of a citizens’ militia 2nd Amendment right as a check on tyranny—the dangerous pablum of gun groups now vaguely adopted by the Supreme Court—has persisted too long.
It is also fundamentally wrong, ignoring 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.
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.
Heller’s mythic “ancient right of individuals to keep and bear arms”
Heller premised its “right” on the purported “ancient right of individuals to keep and bear arms,” and the 1689 English Declaration of Rights as purported “predecessor” to the 2nd Amendment.
But the phrase keep and bear arms was hardly “ancient.” It was first used by John Adams in drafting the 1780 Massachusetts Constitution—a real predecessor to the Amendment—to provide a public right. The lone historian Heller relied on to validate this ancient “right,” Joyce Malcolm, in fact wrote that Englishmen for “five hundred years” had “a duty to be armed” under the militia system (dating to the 1181 Assize of Arms), not a right. While theorizing this changed with the 1689 Declaration, Malcolm conceded that since strict militia and game laws “remained in force,” any “assertion of a guaranteed right … to have arms seems empty rhetoric.” Citing also William Blackstone, Heller overlooked his commentary that the Declaration “was only declaratory, throughout, of the old constitutional law of the land.” In other words, it changed nothing of the 500-year-old duty and absence of a right.
Any parallel that exists between the English Declaration and 2nd Amendment lies not in some supposed individual right but in the war powers dispute each addressed. In 17th-century England, the struggle over arms was less between individuals and the government as between
Parliament and the king. Similarly, in 18th-century America, the struggle over who could arm was between federal and state governments, a clash resolved by the Amendment.
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 2nd 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.
Missing more than pivotal text, for which Heller cannot stand, the Court bungled practically every aspect of the most consequential 2nd Amendment case ever to come before it.
A Needed New Understanding and Approach
Remarkable failure 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. In 1972, Justice Douglas wrote there is “no reason why all pistols should not be barred,” decrying “the ease with which anyone can acquire” one when a “powerful lobby dins into the ears of our citizenry that [they] are constitutional.”
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.” [CITE LIST OF DECISIONS]
That led to decades of NRA activism attempting to demonstrate an individual right, and hundreds of law reviews attempting to explain the Amendment’s “baffling” wording. By 2001 this resulted in the first federal appeals decision to recognize such a right, United States v. Emerson. 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 argued the same variants of an individual right, again assuming away the state right. The District of Columbia petitioned the Court to decide “Whether [its handgun laws] violate the Second Amendment rights of individuals not affiliated with any state-regulated militia”—not asking whether it was a state right, or infringed as written (which means more than simply “violate”). D.C.’s lawyer then began oral argument: “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 gun-rights’ “right of self defense” argument, while the dissents attempted to back gun-control’s “right to militia service” argument. The actual text and state right never stood a chance. [Read more]
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.
Pursuing individual-right dead ends to the left and right, gun control and rights advocates drove the country into a constitutional ditch in 2008, where it remains stuck today, with dire consequences.
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.
Self-defeating strategies, and a self-inflicted epidemic
It is a tragedy the country cannot pass meaningful gun reform to address a worsening epidemic.
On the surface, much responsibility would seem to lie with the NRA which for decades has thwarted dialogue and action, as acknowledged in a 2020 book by 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.
The real tragedy is Heller didn’t have to happen. We shouldn’t have to be suffering its deadly effects in the home—record suicides, domestic violence, and accidents—or facing ever worsening shootings in the streets.
Two decades of magical thinking, not just by gun-rights advocates but gun control itself— inviting Heller’s error through a self-defeating “right to militia service” legal argument, 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 self-defeating legal strategy invited Heller’s individual right, discarding without explanation the long-held state right. Espousing instead a theoretical right to serve in the militia, gun control lost in a federal appeals court for the first time in half a century (in Emerson in 2001). Doubling down, gun control lost again, this time in the Supreme Court for the first time in 80 years: in Heller in 2008, and again in McDonald in 2010.
Seeing why gun control’s unsubstantiated “right to militia service” argument is losing key decisions isn’t hard. Nor is seeing how its futility left Heller and McDonald no choice but to adopt the other individual right presented—to self-defense—and for the dissenting justices no option but to revert to describing the Amendment for what it is—a state right. [DROPDOWN]
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 2nd 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 argument that compulsory militia duty was also a right—a mere academic theory that was self-contradictory, contrary to the founding record, and repudiated by law—never stood a chance. [DROPDOWN]
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 entire 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.
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. [DROPDOWN]
Academics find the Amendment “baffling,” as Columbia law professor Michael Dorf put it, with “no definitive answer to what” it means, or as Harvard’s Mark Tushnet wrote in Out of Range: The “most mysterious provision” colleague Cass Sunstein agreed. They even go so far as to assert we can never know what it means. Perpetuating received wisdom, academics insist that to contend otherwise is “blowing smoke” (Tushnet), and courts should defer to the “deeply felt commitment” to gun rights of some and “reasonable restrictions” sought by others, “without purporting to untangle the Amendment’s deepest mysteries” (Sunstein). Historian Saul Cornell contends if “history seems to provide clear and unambiguous support for one ideological preference in the great American gun debate, then the history is likely to be wrong.”
But orthodoxy is often wrong, for instance when it fails to consider the full text and historical record. Following groupthink, hundreds of peer-reviewed books, articles, and friend-of-the-court briefs, academics largely recycle or expand on the same worn assumptions. They seem to have lost sight of an essential truth—the framers knew what the Amendment meant and why. Apparently gone with it is academia’s ability or will to find it.
Gun control, advancing and perpetuating a legal lie for two decades, should never have attempted its “right to militia service” argument. A fatal miscalculation, it helped bring America a decade of “thoughts and prayers.” [DROPDOWN]
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.
A self-defeating legal strategy not to challenge Heller has only perpetuated its deadly effects in homes across America, and enabled its steady extension to the streets.
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.
A self-defeating public relations strategy is summed up by gun control’s message that people should overlook the fact gun violence is worsening because “we are winning.”
So too are its 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, the marginal reforms it allows are “no cure” for the worsening epidemic.
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.
Self-defeating political pandering to a popular right to own guns, given the influence our leaders’ words carry, has helped turn the Constitution that promises “domestic Tranquility,” into a suicide pact.
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 42nd 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 (of eight 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 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 Second 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 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 Second 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,” pandering to an electorate that went beyond even Heller. Four years later after the New York Times declared a “Gun Epidemic” in 2015, he held a prime-time forum on gun violence, and in an op-ed the next day, “Our Responsibility,” called for reform to address “one of the greatest threats” to public health and safety, noting: “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 assumption of a “guarantee” to gun ownership, which perpetuates false beliefs, undercuts reform, and all but ensures worsening violence.
The latest example is Sen. Chris Murphy (D-CT), a leading voice in Congress 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 inescapable problem: the deadly effects of Heller.
The result of a self-defeating strategy, message, and pandering has been tragedy and futility: a country trapped in a self-inflicted epidemic for which it has no answer.
The courts now enforce a novel constitutional “right” created by systemic oversights and guesswork by both sides of the gun debate. Gun control, unable to grasp the Amendment’s meaning, offers marginal solutions and empty assurances that we can “live with” Heller while Americans increasingly die. The public doesn’t know a legal blunder fuels the epidemic because gun control abdicates its responsibility to confront Heller.
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 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 by oversights and conjecture, Heller, extended by McDonald, is not just responsible for one tragic act of mayhem, but for making America’s gun problem a declared “Gun Epidemic” by 2015. Thanks to two court decisions, America has become an abattoir of daily mass shootings, weekly school shootings, and record gun violence, domestic attacks, and suicides, increasing year after year. See Epidemic page here
Not only was this “foreseeable” in Heller, 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.” Our Constitution never did, until Heller rewrote it.
Since Heller opened the floodgates, over 400,000 Americans have died from gun violence, two thirds of the Civil War carnage sparked by the Court’s infamous Dred Scott decision.
Justice Stevens in 2014, citing “the slaughter caused by the prevalence of guns,” warned it’s “profoundly important” that Americans recognize 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.”
Increasing stakes: Heller’s extension to public carry
The deadly stakes have been increasing, and with them the epidemic. Even without another Supreme Court decision formally extending Heller to a right to carry guns in public.
Heller’s right “to carry a handgun in the home” for what it called the “core lawful purpose of self-defense,” is steadily being extended outside the home. As courts have recognized, its list of presumptive exceptions—carrying concealed guns, guns in schools or government buildings— that makes sense only in the context of public carry, indicate Heller can be easily extended, as courts have recognized.
Most states now allow some form of public carry. In those that don’t, federal courts have struck down carry bans even in violence-plagued cities like Chicago and D.C. And guns are routinely carried across state lines, whether by legal reciprocity or everyday practice.
As summarized in Rogers v. Grewal (2020) (Thomas, J., dissenting): “a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish ‘good cause’ or a ‘justifiable need’ for doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction.”
Federal courts already have overturned several states’ public carry restrictions.
- In 2012, days before the Sandy Hook massacre, Judge Posner for the 7th CircuitCourt 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 (7th 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 35th 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 2018, the Ninth Circuit overturned Hawaii’s restriction on public carry, in Young v. Hawaii 9th Cir. 2018) (pending full court review)
- In 2018, the Fifth Circuit upheld a new Texas law allowing concealed carry at publiccolleges, in Glass v. Paxton (5th Cir. 2018).
In 2019, the Supreme Court accepted its first 2nd Amendment case in a decade that could have extended Heller to public carry. New York City promptly changed its regulation, fearing another major loss for gun control, and the Court remanded the case as moot, in New York Rifle & Pistol Ass’n v. City of New York (2020). Postponing a reckoning could be short-lived, with similar cases pending in the lower courts, and Justice Kavanaugh now a reliable vote for granting review. As he concurred in NYSRPA: “The Court should address that issue soon.”
Without a better approach—one that raises and persuades the Court of its historic error—such cases greatly increase the odds it will soon extend Heller from the home to the streets, creating even worse levels of gun violence.
Enough is enough: “Overrule Heller” to end the Gun Epidemic
Chief Justice John Roberts has indicated “when this Court needs to say enough is enough.” This is one of those occasions. The Court has the duty, with its institutional authority at stake, to recognize it has not addressed the full 2nd Amendment, and to decide what the Constitution actually means.
It is past time for courts, lawyers, and scholars to stop guessing and instead understand the Amendment. To stop assuming away text and longtime meaning. To stop turning a gun problem into an epidemic and replacing the real constitutional right with a fringe interpretation once sensibly called a “fraud.”
And it is time for the country to heed Justice Stevens and see what is plain to see: Heller’s deadly role in turning our 2nd Amendment that protects state militias into a self-destructive individual “right.” To end the worsening gun epidemic, we have to “overrule Heller” — “the worst self inflicted wound in the Court’s history.”
AEP can show the way, in the courts which created and must correct this legal travesty, with your support. Find out more about AEP’s work to overturn Heller and how you can help.