The Second Amendment Still Undecided, Hiding in Plain View

January 6, 2016

Ludwig & Robinson posts article revealing new insights on the gun debate, including how District of Columbia v. Heller remarkably did not address much less decide the full Amendment as assumed.


Robert W. Ludwig, founding member of the Washington law firm Ludwig & Robinson, offers new legal and historical insights in response to “The Gun Epidemic,” the first New York Times front-page editorial in a century, urging: “It is past time to stop talking” and start reducing or “eliminating some large categories of weapons and ammunition” in the wake of San Bernardino, Colorado Springs, and daily mass shootings. President Barack Obama, saying “enough is enough,” yesterday announced executive actions, constrained by Congressional inaction and surprising assumptions about the Second Amendment.

In a timely article, “Exceptionalism Today: Mass Guns, Mass Shootings, and Mass Oversights – The Second Amendment Still Undecided, Hiding in Plain View,” Mr. Ludwig points out that the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), a sharply divided 5-4 decision overturning D.C.’s handgun ban and two centuries of law and legislative practice, “remarkably did not address much less decide the full Amendment as is assumed. Nor did Heller address, in roiling settled law if not domestic tranquility, the whole constitutional and founding record, which is far more extensive and clear than believed.”

“For openers,” said Mr. Ludwig, “one would think that in construing the right ‘to keep and bear Arms,’ which ‘shall not be infringed,’ the Court addressed the meaning of ‘infringed.’ Yet nowhere in Heller, overturning 200 years of law that the right was collective and not individual, does the Court consider let alone decide that term, a smoking gun hiding in plain view.”

Heller did recognize the text says the right “‘shall not be infringed,’ but did not address what ‘infringed’ means.” Instead it “transposed ‘infringed’ to ‘abridged’ (‘Congress was given no power to abridge the ancient right of individuals to keep and bear arms’), equating the two with no analysis.” Two years later an even more splintered Court applied this newfound right against the states to strike down Chicago’s similar ban, again using “‘abridged’ and ‘infringed’ interchangeably, defining neither.”

Infringed and abridged are different words, the article explains, “have different meanings in period and modern dictionaries, and are not even synonyms. Where words ‘cannot, in any appropriate sense, be said to be synonimous,’ Justice Joseph Story once warned, to ‘suppose them to signify the same thing,’ as the Court did, ‘would be to defeat the obvious purposes of both.’”

“Why did the framers use, in fact insist upon, ‘abridged’ and not ‘infringed’ when they intended an individual right?,” Mr. Ludwig asks. “The reason becomes obvious when one looks, as urged by Story: ‘It must have been the result of some determinate reason; and it is not very difficult to find,’ here in pertinent drafting history” and founding-era documents, none addressed in Heller.

In other words, Heller “never decided the question presented: whether D.C.’s handgun ban ‘infringed’ a Second Amendment right.” And until the Court addresses the verb on which the entire Amendment rests, “arguably Heller, having neither addressed nor authoritatively decided whether anything was ‘infringed,’” has no effect on the courts or legislatures. That would mean “the Court’s prior unanimous holding in 1939 which Heller never overruled, as unanimously reaffirmed by the Burger Court in 1980, is still controlling.” As the latter affirmed, nothing in the Second Amendment prevents “legislative restrictions,” including those called for in the Times editorial. “Gun rights and control groups have much to debate,” Mr. Ludwig says, “just not the Second Amendment.”

For the article, visit


Ludwig & Robinson, PLLC is a law firm based in Washington with an office in Detroit, and affiliate in Germany. The firm has a national and international practice in trial and appellate litigation.

Robert Ludwig
Ludwig & Robinson PLLC
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