What AEP Does

1. AEP shows Heller is central to America’s epidemic of gun violence.

• This crisis cannot be explained by mental health, poverty, youth, Covid-19 or crime. While contributing factors, all are found in other nations with a fraction of our gun violence. “To understand the real problem with guns in the USA just google ‘Argument turns deadly.’” (A. Wiles, 7.24.22)
• “Now we’re seeing [what’s] always been part of human conflict coupled with the accessibility of firearms.” “We have individuals of all ages using firearms to resolve their disagreements.” (Milwaukee police chief, 5.22)
• “Accessibility” followed Heller’s new right to have a gun. Gun deaths rose and then accelerated, creating an inflection shown by virtually all the data—and common sense (before Heller there was no crisis)
• “Most murders are committed by law-abiding citizens where spontaneous violence is generated by anger, passion or intoxication,” as Justice Breyer warned
• Empowering all citizens with guns, Heller turned those unable to control their impulses into criminals. Such rising “crime” is crime Heller created
• Even the historian Heller relied on called its right a “dangerous freedom” (Joyce Malcolm)

2. AEP shows the individual rights argued in Heller were simply wrong.

• Throughout the 20th century, the unanimous view of the 2^nd Amendment of federal judges, including conservative Court nominee and likely decisive vote, Robert Bork, was it “guaranteed the right of states to form militia, not for individuals to bear arms,” and “allowed states” to resist a “tyrannical national government.”
• The idea the amendment guaranteed an individual right was denounced in the 1990s by former Chief Justice Burger as “the greatest piece of fraud.”
• In 2008 in Heller, the Court never considered that longtime understanding—the States’ right to keep armed militia, though founding debates were all about that right—because the gun control community, which never lost arguing it, chose to drop it.
• Instead, both sides argued a variant of a personal right—to serve in the militia and to self-defense, of which there was not a word in the debates—that the majority and dissents, respectively, called “an absurdity” and “absurd.”

Heller’s “implied” right of self-defense was absurd, as its glaring mistakes below show. But the right to serve in a militia that the community argued—a “sophisticated collective rights theory”—was just as absurd.

• DC’s counsel argued the right was “invokable in court,” citing no support. Research would have shown the Court in 1827 rejected the idea of militia suits as “subversive of all discipline.”
• Academics never defined the theoretical collective, nor could they: the only collective people in our system is the body politic called the state. Nor did they address the militia system for defense of the state, the core of the unanimous US v. Miller (1939) decision that led to uniform recognition of the state right.
• Nor did academics explain how a right to serve could be a duty subject to fines or prison, unlike other rights. (Nor is there an analogous right to serve on a jury as some argued, another absurdity rejected by the courts.)
• The Heller dissents, speculating “surely” the right exists, also cited no support and largely ignored it. Rather, as Justice Stevens said, the amendment was “to protect the right of the States to maintain a well-regulated militia.”
• Argued as a right to keep a gun for militia service but not self-defense—to break glass for one emergency, not the other—the theory was not even plausible.
• Dropping the longtime state right for an unsupportable theory, the community left the Court to find the other absurd personal right by default—the guesswork that plagues the country today.

3. AEP shows Heller was flagrantly wrong: a historic, embarrassing blunder.

Justice Stevens had urged that “overruling Heller is desperately needed,” calling it “the worst self-inflicted wound in Court history.” It’s worse than he knew.

Among its many glaring errors, Heller changed:

• well regulated to “disciplined”—turning the governing first constitution (from “well-regulated and disciplined militia” to “disciplined and disciplined militia”), and with it the amendment, into nonsense
• militia to “citizens’ militia”—conflating “citizen soldiers” and “militia” into an oxymoron
• the people to individuals rather than the States—ignoring context, including the unique prefatory clause it reduced to nonsense, and unusual last clause it ignored
• keep and bear to “possess and carry”—missing an idiomatic use of keep, and dismissing that of bear
• arms to personal weapons—uncritically repeating a fiction
• infringed to “abridged”—carelessly transposing terms of art that are not even synonyms

Heller’s right to “weapons typically possessed by law-abiding citizens for lawful purposes” rests on the fiction that military and personal weapons “‘were one and the same,’” ignoring militia statutes requiring specific arms. That quote comes from a 1980 billy-club case which misread a swords encyclopedia that refutes the notion, misciting a chapter on the wrong century. (That case, misreading other authorities, was also the unattributed source of Heller’s “citizens’ militia”—the first reported case in 200 years to use that misnomer.)

As another glaring example, Heller—purporting to interpret the textual meaning of the amendment, each and every word—never addressed the meaning of the verb on which it rests. Unlike abridged—used in the 1^st Amendment (where the first Senate corrected the House’s substitution of infringed) and all others since for personal rights—infringed was used in the 2^nd Amendment and organic laws like the first constitution (“the legislative right of any state . . . be not infringed”) only to protect a sovereign right. As well established, a decision that overlooks text it purports to decide can have no legal effect.

4. AEP shows Heller is not only wrong, but destabilizing and irresponsible.

The Heller Court, “aware of the problem of handgun violence in this country,” took “policy choices off the table” through flagrant errors and guesswork, turning America’s gun problem into an epidemic.

Worse still, Heller endorsed for the first time the myth of a “citizens’ militia as a safeguard against tyranny” “if the constitutional order broke down.” That was not only wrong—a citizens’ militia is nonsense, and the States are that safeguard as Alexander Hamilton and James Madison explained—but “productive of anarchy” if citizens could decide when order is broken, as the jurist William Blackstone warned.

Heller’s reckless 2008 rhetoric inspired the doubling of private militia, like the Oath Keepers (2009) and Proud Boys (2016), and produced anarchy in Charlottesville, Lansing, and the US Capitol—Stewart Rhodes declaring the 2020 election “unconstitutional” and another insurgent his “constitutionalist” right. It has bred rising threats of political violence, kidnappings and assassinations, even of justices themselves.

5. AEP shows Heller’s flagrant errors cannot legally stand.

Justice Stevens, urging “overruling Heller is desperately needed,” saw no way like others to persuade this Court, and advocated repeal of the amendment in desperation. Overruling Heller is essential. But repeal is unnecessary (and wrong: the amendment is a state check on federal tyranny). Heller is a fragile series of fatal flaws, a house of cards that cannot stand, even in this Court.

• Heller’s historic failure to address text—infringed—means it cannot stand, and requires reconsideration
• Reconsideration is further warranted where Heller failed to address existing law—the state right
• The several flagrant errors and oversights above—the start of a long list—show it was wrong
• Heller’s rewrite of key terms—untenable on their face—reduced the amendment to impermissible nonsense
• Heller itself recognized that without rewriting well regulated militia as disciplined citizens’ militia—or nonsense—the first clause “fits poorly” with a personal right
• The Court itself in 2018 undermined Heller in correcting that patent infringement involves a “public,” not “personal right.” The 7-2 opinion is by Justice Thomas, a defender of Heller’s right
• The two personal rights addressed in Heller were undebated, without real founding support, and absurd, leaving the one actually debated: the state right

Virtually all these glaring mistakes and oversights—among many others—have been missed by both sides and the Court, in Heller and ever since. They show Heller, the 2^nd Amendment, and founding have not been closely read or understood. They also make reconsideration unavoidable.

6. AEP shows the actual 2^nd Amendment is no bar to gun reform.

The real origins, purpose and wording of the amendment all demonstrate a state right.

• Under the first constitution, the states had an express right to keep and arm their militia.
• The amendment was drafted out of fears the new Constitution —that shifted to Congress the power “to provide for organizing, arming, and disciplining Militia”—left the states’ right to arm their militia merely implied, and subject to federal tyranny. They demanded their right be made express, which is all that was debated.
• How the amendment gave states what they demanded has long mystified scholars and the courts, because they assumed away text, the first constitution, militia system, federalism, and key parts of the founding record, which present a very different historical picture and constitutional right.
• AEP breaks down the amendment’s precise use of language that begins to reveal its plain meaning, including why “the people” means the state, and “infringed” protects a sovereign right.
• AEP resolves these and other longtime blind spots, including the amendment’s real antecedents, who actually determined its wording, how, and why.

Once Heller is overruled, Congress and the states will be free again to regulate firearms, just like motor vehicles.

• Under the state right, there is “no reason why all pistols [c]ould not be barred” – Justice Douglas, 1972.
• Canada, sharing our heritage and urban-rural divide, has contented gun owners and no gun epidemic, classifying firearms as non-restricted (hunting rifles), restricted (handguns, semiautomatics) and banned (certain handguns, automatic weapons).
• Australia, also sharing our gun culture, shows buybacks and bans work: “Few Australians would deny that their country is safer today as a consequence of gun control” – former PM John Howard.
• With 400 million guns now in U.S. circulation, returning to pre-Heller levels will take time. The process can be accelerated through a true understanding, licensing, restricting ammunition sales, and other measures.
• Just ending the upward spiral of gun sales and violence will halt and reverse the epidemic.

7. Finally, AEP shows we have no choice but to act.

Talking around Heller is sleepwalking the country into a deepening, self-inflicted crisis.

• Mainstream gun control chooses not to see the elephant in the room. How it boosts gun sales, shackles regulation and unleashes deregulation. How it creates a dystopian America of angry citizens using guns to settle disputes. How it inspires militia activity, armed resistance, and political violence.
• Heller must be confronted—not ignored—and overturned.

A surging gun epidemic, like the Covid-19 epidemic, requires effective solutions NOW.

• The gun control community, ignoring Heller and having no real response to a surging epidemic, is left only to lament the rising toll.
• Its solutions – community-based programs, electoral change, grassroots efforts, repeal, remaking the Court – are as misguided as they are modest, uncertain and slow.
• A better approach is to look to the COVID-19 analogy and how vaccines developed so quickly. They are a result of decades of intensive research and work, defying orthodoxy that mRNA was unworkable.
• That is the only approach that will cure this epidemic. It’s what AEP dedicated itself to the last decade in expos-ing Heller and recovering the lost meaning of the 2^nd Amendment, defying orthodoxy that it couldn’t be done.

This epidemic is a still developing tragedy. The real tragedy is it didn’t have to happen —had gun control not dropped the state right, and made greater efforts to prove it.

AEP’s attorneys have spent years resolving the enigmatic 2^nd Amendment and developing the “cure” for Heller and its epidemic. We need your help to do what no one thinks possible, but is essential: bringing effective challenges to overturn Heller in the courts, who created this crisis and must end it.

We are also dedicated to changing the mainstream gun debate by educating the public about Heller and the actual 2^nd Amendment.

That is the American Enlightenment Project’s mission. If you agree, please support us in any way you can. Your voice and support are vital to real change.

To learn more, visit 2nd Amendment Explained and Heller’s 2nd Amendment.