The idea of restraining legislative authority in the means of providing for the national defense is one of those refinements which owe their origin to a zealous liberty more ardent than enlightened. —The Federalist No. 26 (Alexander Hamilton)
Focus on Heller and cure the epidemic, not its symptoms
While the country struggles to make sense of its new normal of hourly senseless shootings, and get past the empty ritual of thoughts, prayers, and modest proposed solutions, few ask what’s behind the sudden epidemic of gun violence, and what to do about it.
The divisive debate over America’s gun epidemic targets its symptoms, not the disease. Thousands of dedicated Americans, communities, and organizations seek to work around the constraints of the 2008 Supreme Court decision in D.C. v. Heller and pass common-sense gun laws at the local, state, and national level. While important, overlooked is something even more critical to ending the epidemic: addressing Heller and its new blockbuster right to possess guns.
The elephant in the room: “the worst self-inflicted wound in Court history”
Justice John Paul Stevens, one of few national voices to address what’s behind the epidemic, has long identified the elephant in the room. He warned in 2014 how “profoundly important” it is to see that Heller “curtails government power” to regulate the guns used in scores of gun deaths each day, and in 2018 that modest legislative solutions are “no cure.” In a 2019 memoir. revealing shortly before he died that “all [justices] could foresee the negative consequences” of its “radical change in the law,” Justice Stevens called Heller “the worst self-inflicted wound in the Court’s history.”
Yet the country remains focused on modest solutions and not on the deadly, obstructive effects of Heller, which turned a “gun problem” into a “gun epidemic,” and blocks and marginalizes legislative remedies needed to end it.
Seeing what Justice Stevens saw shouldn’t be hard. Imagine if the Court declared a right to drive drunk: the “problem” of drunk-driving deaths would soon become an “epidemic.” And imagine trying to regulate drunk driving despite a constitutional right to drive drunk: it could not effectively be done. Can Heller’s constitutional right to guns be much different?
Seek “more effective and lasting” reform: “Overrule Heller”
Justice Stevens was also one of the few to address how to end the epidemic. In 2014, citing “the slaughter caused by the prevalence of guns” under Heller’s reinterpretation of the Second Amendment, he suggested that the right “to keep and bear arms” be clarified by amendment with five words: “when serving in the militia.” In 2018 after the Parkland massacre, he urged students to “seek more effective and more lasting reform” and “demand repeal of the Second Amendment.” In his 2019 memoir Justice Stevens was even more emphatic: An amendment “overruling Heller is desperately needed to prevent [more] tragedies.”
Justice Stevens was right that overruling Heller is desperately needed. Treating Heller and the Second Amendment as the rock and a hard place, he viewed revision or repeal of the amendment as the easier course. But it doesn’t need changing, serves too important a purpose in our complicated federal system, and means something else.
There is a way to overrule Heller, hiding in plain sight. As AEP shows, Heller never decided the full amendment. And having overlooked pivotal text, it cannot legally stand.
Historic legal blunder
In a historic blunder, Heller did not address the full text before the Court. Overlooking the prohibition and verb on which the Second Amendment rests, the majority opinion by Justice Antonin Scalia transposed “shall not be infringed” to “abridged,” though not synonyms, as is obvious from any thesaurus, but constitutional terms of art.
“Abridge” has been used the last 230 years—for the “great rights” in the First Amendment where the First Congress rejected the substitution of “infringe,” and in all such amendments since—to protect private rights; “infringe” was used to protect public rights, of states over their militia. Nor was the meaning of infringed addressed by the dissents, parties, or 66 amici, or two years later in McDonald, which also equated the terms.
Historic too, all nine justices found variants of a personal right, the decade after former Chief Justice Warren Burger denounced that notion as “the greatest piece of fraud.”
None explained the radical departure from settled understanding that the amendment protected a public right. A former nominee to the Supreme Court who could have changed Heller’s outcome, Robert Bork, agreed the amendment “was designed to allow states to defend themselves against a possible tyrannical national government.”
And each called the other’s private right “absurd.”
Dissenting Justice Stevens called the majority’s private right of self-defense, implied largely from dictionaries and of which there is “not a word” in founding debates, “really quite absurd.” The dissents’ own conjecture: “Surely it protects” an individual right to keep and bear arms for militia duty, was mocked by Justice Scalia as a “right to be a soldier or to wage war—an absurdity.”
The District of Columbia invited Heller’s error, assuming away the amendment’s text and public meaning, in arguing it protects a private right.
The question it presented asked the Court to decide: “Whether [D.C. gun laws] violate the Second Amendment rights of individuals [un]affiliated with any state-regulated militia,” not whether the rights were “infringed” as written in the Constitution. The majority so held: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment.” That question disregarded not just text, but all but a private right. D.C.’s lawyer even began oral argument: “What is at issue this morning is the scope and nature of the individual right protected,” ignoring a public right.
The actual words and public meaning of the Second Amendment never had a chance.
Guesswork over 2/3 of the amendment
Constitutional scholars call the amendment “baffling” with “no definitive answer” what it means. Conventional wisdom is often wrong, especially when it ignores text.
For 200 years, the legal herd focused on the first clause—“A well regulated Militia, being necessary to the security of a free State”—to conclude its purpose was to protect state militia. Then in 2008, the Heller majority shifted focus to the middle clause—“the right of the people to keep and bear Arms”—and found for the first time a private right of self-defense. The zig-zagging herds, deeming the two clauses hopelessly contradictory, never considered the last clause—“shall not be infringed”—that helps demystify both.
The result has been tragedy and futility, the country trapped in an epidemic. The courts enforce a constitutional guarantee created by systemic oversights and guesswork, that has led believers in both gun-rights and gun-control down an illegitimate path. The experts, unable to say what the amendment means while offering marginal solutions, advise we can “live with” Heller while Americans increasingly die. The public doesn’t know a legal blunder fuels the epidemic, even as it grows intolerable, following the courts and experts over a cliff.
Heller’s tragicomic fictions
Heller transposed the people’s right “to keep and bear arms” into a personal, oddly-worded right to “handgun possession” and “to carry it in the home”—its actual holding.
Heller’s related right to use guns in “common use,” that is weapons “typically possessed by law-abiding citizens for lawful purposes,” is another fiction. It rests on a 1980 Oregon case involving billy clubs, not guns, which miscites a swords encyclopedia that contradicts it. That flimsy case is the linchpin of Heller’s key test for deciding which guns are protected today.
New Justice Brett Kavanaugh once extended this fiction to AR-15s, used in the Sandy Hook Elementary and Stoneman Douglas High massacres. His reasoning: since most Heller-protected handguns are semi-automatic and there’s “no meaningful or persuasive 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: unlike handguns, an AR-15 leaves an exit wound the size of a grapefruit.)
Heller’s final right of “citizens’ militia as a safeguard against tyranny” when “order broke down,” the pablum of private militia that inspires unlawful Charlottesville, Oregon, and border activities, ignores constitutional bedrock. Citizen militia (armed mobs) are no more constitutionally protected than citizen juries (lynch mobs).
The Constitution’s Guarantee Clause and Second Amendment are checks by which the federal and state governments 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.”
Heller cannot legally stand
Overlooking text is “probably the strongest reason for not following a decision,” the California Supreme Court said in correcting a 140-year oversight “announced in ignorance” of an 1872 statute, a “remarkable failure of the adversary system” (as argued in the court below). Noting “It is better that wisdom come to our attention late than not at all,” the court held because “relevant language and history” was not addressed, its prior case “cannot stand.” Having not addressed the full amendment, among other major oversights, Heller likewise cannot legally stand.
That is the rule. As another court held about “a palpable mistake” in “overlooking a portion of the statute,” it is “not only the duty” but “pleasure” of a court “to rectify the error and give expression to the law as written.”
Justice Neil Gorsuch once noted: “After all, it is the duty of [courts] to say what the law is, not to develop a rococo jurisprudence about a hypothetical law that Congress might’ve—but clearly didn’t—enact.” Heller, transposing infringed to abridged (or violated), and deciding only two-thirds of the amendment, is rococo jurisprudence on a hypothetical the First Congress and ratifying states clearly didn’t enact.
A dangerous decision
“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
Heller’s effects are devastating. Radically reshaping gun law by oversights and conjecture, Heller is not just “minutely responsible” for one “tragic act” but for a national epidemic, turning homes, schools, and public places everywhere into killing fields.
Since Heller opened the floodgates to gun possession, over 300,000 Americans have died from gun violence, half the Civil War carnage sparked by Dred Scott, with millions wounded, families and communities traumatized. That legal travesty did not miss constitutional text, like Heller.
Increasing stakes, to public carry
The stakes are set to increase dramatically, and with them the epidemic.
The Supreme Court recently accepted its first Second Amendment case in a decade that could extend Heller to public carry. In response, New York City announced it has changed its regulation, fearing another major loss like D.C. suffered in Heller and an even more deadly blockbuster right. Other public-carry cases are pending, with Justice Kavanaugh now a reliable vote for granting review.
Enough is enough: “Overrule Heller” to end the Gun Epidemic
Chief Justice John Roberts from time to time has called out “when this Court needs to say enough is enough.”
It is past time for the courts, lawyers, and scholars to address the full Second Amendment. To stop assuming away text and longtime meaning. To stop turning a “gun problem” into a “gun epidemic,” and one blockbuster right into another, once sensibly called a “fraud.”
And it is time for the country to finally heed Justice Stevens, and see what’s in plain sight: Heller’s deadly role in our worsening gun epidemic. Better yet, end the epidemic by finding a way as he urged to “overrule Heller”—“the worst self-inflicted wound in the Court’s history.”
AEP can show the way, with your support.