—Thomas Paine, Common Sense, Addressed to the Inhabitants of America, Jan. 10, 1776
The country is tragically unaware of the fatal effects and flaws of Heller. After only a decade, the “Habit of not thinking [Heller] wrong, gives it a superficial appearance of being right.” The reality is, Heller could not be more wrong, and more vulnerable as a historic legal blunder.
AEP’s groundbreaking work challenges common wisdom, first by supporting Justice Stevens’ message that Heller turned a gun problem into an epidemic, blocked and marginalized reform, and “desperately needs” to be overruled. Second, AEP shows how to overrule it—having overlooked constitutional text, Heller cannot legally stand. Third, AEP reveals the real origins and meaning of the Second Amendment—it has nothing to do with a right to guns that turns everyday impulses that normally end in words, into a new normal of endless gun violence.
Finding a better way
The Sandy Hook Elementary School massacre of 26 first-graders and teachers in 2012, as one commentator put it, “marked the end of the U.S. gun-control debate. Once America decided killing children was bearable, it was over.”
Days before, Judge Richard Posner, who criticized the Heller opinion by Justice Antonin Scalia as “faux originalism” and a “snow job” for which “derision is deserved,” was constrained to extend Heller’s right “to carry [a handgun] in the home” to public carry. (That 7th Circuit decision and McDonald, striking down gun laws protecting Chicago, fueled its record violence, just as a D.C. Circuit carry decision and Heller did for D.C.).
The next year, 21 states expanded gun rights, not controls, to allow guns on campuses, in churches, even bars.
In 2014, Justice Stevens first warned of Heller’s link to the daily “slaughter caused by the prevalence of guns,” and how “important” it is to understand it “curtails” legislative fixes.
The next month, after a California rampage left 7 dead, a dozen injured, a headline summed up a growing sense of helplessness as “‘No Way to Prevent This,’ Says Only Nation Where This Regularly Happens.”
In 2015, a “Gun Epidemic” was declared in a historic front-page New York Times editorial.
AEP advisors had already begun searching for a “way to prevent this,” in a years-long intensive legal and historical review that eventually unraveled not only where Heller and legal precedent went astray, but the long mystery of the Second Amendment.
As pointed out in a 2016 article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law360 Jan. 11, 2016) published the month after the “gun epidemic” was declared and a month before Justice Scalia’s death, Heller never decided the full Second Amendment. Other articles followed.
“Court Nominee, Guns, and Constitutional Illiteracy” (Law360 Mar. 15, 2016); “Heller Sequels and 2nd Amendment, Still Undecided” Parts 1-3 (Law360 July 20, 2017, Aug. 3 and 24, 2017); “The Historic Legal Blunder that Enabled Our Gun Epidemic” (Law360 Apr. 25, 2018); “A Right to Carry Everywhere, on a Road to Nowhere” (Law360 Aug. 10, 2018); “Time to Heed Justice Stevens’ Criticism of Gun Decision” (Law360 July 19, 2019), available at www.americanenlightenmentproject.org.
AEP asks the hard questions
AEP found a better way by asking, and answering, hard questions.
Like Justice Stevens, AEP has asked what is behind the sudden epidemic and how to end it:
- Why did the gun problem become a gun epidemic?
- Why common-sense reform most agree on won’t end the epidemic?
- What will end the epidemic?
AEP, going beyond conventional legal understanding, has read Heller more closely to show:
- How the Heller majority and dissents overlooked constitutional text
- Why the Heller variants of an individual right make no sense
- How Heller’s key test used to undo gun laws was not only unsupported, but has nothing to do with the Second Amendment
- How Heller cannot legally stand, even in the present Court
AEP, discounting conventional wisdom that the Second Amendment is hopelessly baffling and unknowable, looked more deeply at the founding record to ask and answer:
- What are the real origins and meaning of the amendment?
- Who determined its wording, when, and why?
- How to prove it in court?
AEP’s validated distinctions
Heller’s oversights of terms or art and legal distinctions—infringe and abridge, public and private rights—are part of a larger oversight of founding and Enlightenment principles that underlie American constitutionalism.
Validating AEP’s groundbreaking approach, a near-unanimous Court last year distinguished public and private rights in a “patent infringement” case. Justice Clarence Thomas wrote: “This Court has long recognized the grant of a patent is a ‘matter involving public rights,’” not “private rights,” correcting the common assumption that “most everyone considered a patent a personal right,” as Justice Gorsuch dissented.
That 7-2 opinion did not consider what “infringement” means in relation to patents (i.e. why the doctrine is not “patent abridgement”), but it shows how quickly misconceptions can be corrected, even by justices in the Heller majority like Justice Thomas.
Correcting Heller can be even more decisive, putting to rest any notion of a private right to guns.
Exposing blind spots putting lives at risk
For constitutional scholars who call the Second Amendment “baffling” and unknowable, not to know infringe and abridge are constitutional terms of art — no more interchangeable than “patent infringement” and “patent abridgement” — is a serious problem. But for lawyers to argue and courts to decide a constitutional provision without construing its full wording borders on malpractice.
For Heller’s majority and dissents to find variants of an individual right the other called “absurd”—and once considered the “greatest piece of fraud”—is troubling enough. But for the majority to transpose the people’s right to bear arms to a facetious right to “to carry [handguns] in the home,” forgets what the Court “must never forget, that it is a constitution we are expounding.” And for the dissents to find a right that was also a duty (to bear arms in a militia, subject to state fines and imprisonment if not exercised) — unlike any other individual right — makes no sense. That contradiction, the common wisdom of today’s revisionist scholars, should have been a telltale sign the interpretation is wrong.
In another disconnect, the dissents said the term “the people” reminds “it is the collective action of individuals having a duty to serve in the militia that the text directly protects,” with “the ultimate purpose … to protect the States’ share” of “divided sovereignty.” Noting the majority “offers no way to harmonize its conflicting pronouncements,” the dissents did not harmonize their conflicting individual and collective or state rights either.
For the Heller Court, and thousands of lawyers and lower courts applying its related right — to use weapons “typically possessed by law-abiding citizens for lawful purposes” — not to check its support, is another dereliction. That “common use” fiction rests on a single case, involving billy clubs, which miscites, and misreads, a picture-book encyclopedia on swords and bayonets. Yet that flimsy test has been enforced across the country to undo long-standing gun control. Worse, it is poised for extension to public carry, with government litigants still not challenging it.
It is with these blind spots, or worse, that gun policy is now set. As Justice Stevens dissented: Heller’s “judicial craftsmen have confidently [taken] a policy choice … ‘off the table,’” reversed settled law “without compelling evidence” for doing so, and accepted the consequences. He might have added, it was all based on guesswork, on part of the amendment.
A better way to avoid public carry and end the epidemic
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, New York State Rifle & Pistol Ass’n v. City of New York, that could extend Heller to public carry. In an extraordinary about-face after six years of litigation, the City announced it changed its law to “give petitioners everything they sought,” seeking to avoid responsibility for conventional arguments likely to produce another historic blunder.
New York City’s abdication reflects diminished faith in the gun-control community’s approach that could result in more major losses (like D.C. suffered in Heller and Chicago in McDonald), and growing fear of an even deadlier blockbuster right. For that reason, D.C. elected not to seek review of a 2017 D.C. Circuit decision overturning its carry law, saying: “Public safety is [our] 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.”
Postponing the day of reckoning for local and state governments defending carry laws will be short-lived with other cases pending, and Justice Brett Kavanaugh now a reliable vote for granting cert.
Without a better approach—one that raises and allows the Court to correct historic error—these cases greatly increase the odds it will soon expand Heller from the home to the streets, creating a new blockbuster right and level of gun violence.
Support AEP’s mission to challenge Heller
Clarity is required to solve complex problems, which is what the American Enlightenment Project brings to the gun epidemic—one of the most vexing crises in America today.
AEP is readying court challenges to overturn Heller at the earliest opportunity. It needs financial support to do so, from those prepared to address the epidemic at its source.
AEP also is preparing a campaign to demystify the Second Amendment. Americans tolerate their deadly gun addiction out of a belief in a right under the Constitution they revere. That reverence will be its undoing, when AEP decisively shows what the amendment really means.
You can support this effort and help curb unchecked gun violence in America, enable more effective and lasting reform, and restore the actual Second Amendment. Spread the word about Heller, and support AEP in its critical mission to overturn it.