The Historic Legal Blunder That Enabled Our Gun Epidemic

June 20, 2018

“Having forgotten there was an American Enlightenment and our founding history, we now have what prior generations did not: a ‘gun epidemic.’” So begins Robert Ludwig’s latest article, “The Historic Legal Blunder that Enabled Our Gun Epidemic: Renouncing Heller by Deciding—Not Repealing—The Full Second Amendment” (Law360 Apr. 25, 2018).

It was published in response to op-eds by Justice John Paul Stevens calling for repeal of the Amendment and by “scholars backing the ‘gun safety’ movement, the moniker that truckles to extreme positions of the National Rifle Association.” In a swift backlash, Harvard law professor Laurence Tribe called it “A stupid way to fight our gun problem,” and Michael Waldman, President of the Brennan Center asserted: “What is holding the country back is not the Constitution or court rulings, but legislatures in thrall to the intense minority of gun rights absolutists.” Though repeal is unrealistic, Mr. Ludwig shows that the retired justice is “otherwise right” and “those advising the ‘gun safety’ movement are tragically myopic: it is court rulings. Stevens is one of the few national voices who acknowledges it.”

In a 2014 book citing “the slaughter caused by the prevalence of guns,” Justice Stevens presaged the “Gun Epidemic”—declared the next year, followed by daily mass shootings and weekly school shootings—and its cause, warning it is “profoundly important” for the public to know the Supreme Court in District of Columbia v. Heller (2008) “curtailed the government’s power to regulate the use of handguns that contribute to the roughly 88 [now 96] deaths every day.” That 5-4 decision, as criticized by conservatives like Fourth Circuit Judge J. Harvie Wilkinson, “created a new blockbuster right” to guns, complete with unstated exceptions, “not apparent to the Court for over two centuries.” Stevens called out Heller again in his op-ed, still “convinced [it] was wrong,” for providing “the N.R.A. with a propaganda weapon of immense power,” noting Chief Justice Warren Burger in 1991 called the notion of an individual guarantee a “fraud.”

This op-ed crossfire came after students, Mr. Ludwig writes, “awakening to the abattoir of gun violence they’ve inherited” after a Valentine’s Day massacre at a Parkland, Fla. high school, led a March for Our Lives, Town Halls for Our Lives, and National School Walkout. Stevens, calling their demands for an assault-rifle ban, universal background checks, and minimum age allowed by Heller’s exceptions useful to minimize “mass killings of school-children and others” but not enough to curb worsening violence, encouraged students to “seek more effective and more lasting reform.”

Underscoring Stevens’ point, Father’s Day shootings this Sunday at a Trenton arts festival left 22 injured, 4 critical, and at a Seattle-area Walmart another 2 injured—the handguns used untouched by modest reforms students and gun-safety advisors seek under Heller.N.J. Gov. Phil Murphy said: “Even having signed six stringent gun laws last week, we see this. We are getting better, but we are a long way from cracking the back of this senselessness.” Days before a handgun owner in a road rage followed a mother of three to a Denver parking lot and shot her and two boys, killing one and a witness in front of his daughter.

To crack the back of a senseless epidemic, Americans and gun safety groups should pay more attention to Stevens, “a Cassandra unheeded about Heller.” “Supremely frustrated like many Americans, Justice Stevens, treating Heller and the Second Amendment as the rock and a hard place, chose constitutional repeal as the easier course.” Actually, Mr. Ludwig explains, “it is Heller, far from a mighty rock, that is vulnerable.”

Heller “and the narrative that has taken hold among both gun rights and safety groups is deeply rooted in ignorance about the Second Amendment. Contrary to conventional thinking, Heller is only one court case away from being renounced as the historic blunder it is, for elementary oversights of text and founding history.”

For starters, it “is not just ‘profoundly important’ to see Heller as a cause, but that it purported to decide” by guesswork what “academics consider…the ‘most mysterious’ amendment with ‘no definitive answer to what’ it means.” The Court, saying it “took ‘seriously’ concerns over ‘handgun violence,’ confidently declared the ‘enshrinement of constitutional rights’ take ‘policy choices off the table,’ guessing like everyone else.”

Continuing, Mr. Ludwig notes, it is also “important to see” Heller is “guesswork over two-thirds of the amendment,” overlooking the verb on which it rests, “as pointed out in [R. Ludwig, “2nd Amendment Still Undecided, Hiding in Plain View” (Law360 Jan. 11, 2016)weeks before Justice Scalia’s death.” In construing the right “to keep and bear Arms” which “shall not be infringed,” the Court never considered the meaning of “infringed.” Instead, Justice Scalia impermissibly transposed the constitutional term “infringed” to “abridged,” though not even synonyms, like changing “shall not kill” to “maim.” Both overlooked terms of art, “infringed” protects the right of states to arm their militia; “abridged” was used to protect individual rights in the First Amendment and all others for 200 years since.

Overlooking pivotal 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, “in a ‘remarkable failure of the adversary system’” strikingly like Heller. Noting “‘It is better that wisdom, or at least controlling authority, come to our attention late, rather than not at all,’ the California high court held “because the ‘relevant language and history’ was not applied, its prior case ‘cannot stand.’”

So too Heller. “Having not construed the full text, among many other things hiding in plain sight, there is no legal way it can stand.” To end the epidemic it enabled, “what is needed is not repeal of the Second Amendment, but a court challenge to Heller.”

Meanwhile post-Heller, the Constitution “is being turned into a suicide pact,” writes Max Boot in a recent Washington Post op-ed, “primarily but not exclusively” by Republicans in “idolatrous worship” of the Second Amendment. That blame extends, Mr. Ludwig notes, to “a long list of Democrats,” including President and Hillary Clinton and President Obama, all “on record as supporting a right to guns” that does not exist. “So too, improbably, is former Congresswoman and shooting victim Gabby Giffords, and the Giffords Law Center to Prevent Gun Violence.” In this Shakespearian tragedy, the fault is not in our Constitution, but in ourselves, or at least the courts and politicians we look to for guidance.

Rather than focus only on marginal reforms that barely impact the daily carnage from handguns, Americans should ask a court to finally decide the full constitutional text. They will be surprised at what the framers wrote and why, and how quickly Heller and the powerful weapon it handed the NRA will disappear, allowing them once again, like the rest of the world, to address gun violence through an unfettered legislative process.

Mr. Ludwig concludes: “Not deciding the full amendment, Heller ultimately will have no legal effect. Whether because stare decisis as established does not apply where a pivotal part of an enactment is missed, or that and other serious oversights warrant it be overruled 9-0 in the Supreme Court, the result is the same: Heller receives a proper burial.”