What AEP Does
Enough Is Enough.
End the Gun Violence Epidemic at its Source.
This crisis requires different explanations than those generally offered, different solutions, and different action, for any hope of a different outcome.
What AEP Does
AEP is a 501(c)(3) nonprofit formed to end the epidemic of gun violence by challenging conventional wisdom and the dangerous court decision fueling it.
With its unique historical and legal insights, the American Enlightenment Project is a national leader in showing:
- The Supreme Court decision in D.C. v. Heller (2008) – a dangerous decision that enables unprecedented gun violence and other destabilizing effects – is at the root of this crisis.
- Heller is a historic blunder, a house of cards that can be overturned in the courts.
- The real origins, purpose and meaning of the 2nd Amendment, which is no bar to gun reform.
1. AEP shows Heller is central to the worsening crisis, turning a gun problem into a gun epidemic.
- The Heller inflection is confirmed by virtually all the data – and common sense (before Heller declared a right to a gun there was no epidemic).
- Mainstream gun control chooses not to see the elephant in the room, its deadly effects, and how it shackles regulation, unleashes deregulation, and inspires armed resistance.
- Even the historian Heller cited called its right a “dangerous public freedom” which “for obvious reasons very few governments have ever [granted]” (Joyce Malcolm). Our Constitution never did, until Heller rewrote it.
- Come June, if Heller’s right is expanded to public carry as expected, in N.Y.S. Rifle & Pistol Ass’n v. Bruen, the escalating carnage will grow far worse.
- Heller must be confronted, not ignored, and overturned.
2. AEP shows where both sides and the Heller Court went grievously wrong.
- In 2008, gun rights and control advocates and the Court faced a difficult problem: how to explain a 2nd Amendment that had baffled scholars for 200 years. What each did to it is worse than can be imagined.
- Both sides argued, and the Heller majority and dissents found, variants of an individual right the decade after former Chief Justice Burger denounced that notion as “the greatest piece of fraud.”
- None addressed the state right that had been the unanimous view of federal judges – including conservative Court nominee and likely decisive vote, Robert Bork, that the amendment was to “guarantee the right of states to form militia, not for individuals to bear arms,” and “allow states” to resist a “tyrannical national government.”
- Gun-rights advocates argued, and the majority implied a right of self-defense, of which there is “not a word” in the text or founding debates as Justice Stevens later noted, calling it “really quite absurd.”
- Gun-control advocates argued, and the dissents speculated “Surely it protects” a right to serve in the militia, which also was never debated, and the majority mocked as a “right to be a soldier —an absurdity.”
- Rightly deriding each other’s individual-right argument as absurd, neither side or the Court even mentioned what the founders did debate: the longstanding state right. To understand how badly they guessed, assume the 2nd Amendment were ratified last year, and the only right debated was not self-defense, or to serve, but of the states to keep armed militia as a safeguard against federal tyranny. There would be no mystery what it meant. It is mysterious today because we no longer use its terms, that are inseparable from that era, and because scholars and courts have missed or assumed away what explains them.
- Gun-control advocates, having never lost a case in the 20th century arguing the state right, lost in Heller because they argued an unsupportable individual right that should never have been attempted.
Unable to prove the longstanding state right, they invented a “sophisticated collective rights model,” a theory that republican thinking conceived of militia and jury duty as having reciprocal rights to serve. Academics did not explain why such a right was never debated, or how it could be subject to fines or imprisonment if not exercised unlike any other right. Lawyers then argued it with no real support or vetting; simple research would have shown its legal repudiation both as to militia and jury service.
- Gun control advocates have yet to reckon with their obvious mistake, some perpetuating an absurd right to serve in empty challenges to Heller, others leaving unexamined their many assumptions in abandoning the state right.
- Hard cases make bad law, especially when they do not address what the founders debated, what courts long held, and the full, actual constitutional text and founding history.
3. AEP shows Heller is one of the Court’s historic, most embarrassing blunders and why its glaring oversights and errors cannot legally stand.
Justice Stevens had urged that “overruling Heller is desperately needed,” calling it “the worst self-inflicted wound in Court history.” It is worse than he knew.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. – Amendment II
Today’s right, yesterday’s “fraud.” Rewriting virtually every term, Heller turned the 2nd Amendment into an unconstitutional artifice:
Heller changed the preamble’s “A well regulated Militia” to a “disciplined citizens’ militia”
- Guessing well regulated “implies proper discipline,” Heller overlooked the Articles of Confederation (“every state shall always keep up a well regulated and disciplined militia”), turning the first constitution (and militia statutes) that governed the founding into “disciplined and disciplined militia” — an imbecility.
- Speculating militia were not organized military forces but “citizens’ militia,” though foreclosed by the Articles’ use of “well regulated militia,” Heller conflated citizen-soldier and militia concepts into nonsense.
Heller rewrote “right of the people to keep and bear arms” as a right of individuals to “possess” a handgun and “carry it in the home” – what Justice Thomas calls “carrying a gun from the bedroom to the kitchen”
- Heller assumed the people were individuals, ignoring framers’ warnings that meaning depends on context, e.g., the unique preamble Heller rewrote, and final clause “shall not be infringed” it never addressed.
Overlooking the constitutional command on which the amendment rests, Heller carelessly transposed “infringed” to “abridged” though not even synonyms as any thesaurus shows.
- Abridged was used in the 1st Amendment (where the first Senate corrected the House’s substitution of infringed) and all amendments since to protect personal rights.
- Infringed was used in the Articles and 2nd Amendment to protect sovereign rights. Correcting a related misconception about patent infringement, a 7-2 Court recently reminded, as “long recognized,” it involves a “public right,” not a “personal right.” (Oil States Energy v. Greene’s Energy (2018)).
- As well established, a decision that overlooks text it purports to decide can have no legal effect.
Heller’s right to “weapons typically possessed by law-abiding citizens for lawful purposes” – used to overturn handgun and other bans – is legal fiction.
- Supposing that ordinary military arms and guns in the home “‘were one and the same,’” despite militia statutes requiring specific arms, Heller cited a single billy-club case (State v. Kessler, Ore. 1980) which miscited a swords encyclopedia which contradicts that fallacy. That case, appearing also to be the unattributed source of Heller’s “citizen militia,” was the first reported decision in 200 years to conjure that flapdoodle, misciting other authorities.
This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. U.S. v. Masciandaro (4th Cir. 2011)
4. AEP shows Heller is not only wrong, but destabilizing and irresponsible. Miscalculating badly, Heller is responsible not for one act, but mayhem devastating the country.
“Aware of the problem of handgun violence in this country,” the Court took “policy choices off the table” and struck down a handgun ban, through implication and guesswork, never addressing the longtime state right.
Worse still, Heller, needing a rationale to explain how its implied right of self-defense “fit” the preamble about militia, endorsed for the first time the popular myth of a “citizens’ militia as a safeguard against tyranny” “if the constitutional order broke down,” ignoring constitutional bedrock.
- Alexander Hamilton wrote it is “an axiom of our political system … State governments will … afford complete security against invasions of the public liberty by the national authority.”
- James Madison, the amendment’s drafter, agreed: “State Governments … would be able to repel the danger.”
- Jurist William Blackstone repudiated as overzealous the notion individuals had “the right of determining [when order is endangered], and of employing private force to resist” as a “doctrine productive of anarchy.”
- Heller’s “citizens’ militia” folly has inspired armed militia that threaten statehouses and insurgencies like the January 6 assault. Echoing Heller, one insurgent said the taking of the Capitol and violent removal of lawmakers was justified by the “constitutionalist” right of resistance. [Wash. Post. 3.4.22]
5. AEP shows the actual 2nd 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, and who determined its wording 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.
Finally, AEP shows we have no choice but to act.
Talking around Heller and its staggering costs is sleepwalking the country into a deepening, self-inflicted crisis.
- Mainstream gun control has offered one explanation after another for the “Gun Epidemic” since it was declared in a 2015 NYT front-page editorial, always avoiding Heller.
- Paralyzed for years by fear of challenging Heller and inviting something worse, it ignores how bad Heller is.
- Or it claims nothing can be done about Heller’s guesswork because academics wrongly assume – and tell lawyers, lawmakers, and journalists who then tell the public – the amendment can never be resolved.
- Worse, its lawyers not only don’t challenge Heller, they endorse its glaring errors. At the Bruen argument, New York’s Solicitor General told the Court it was “quite content to treat Heller as rightly decided.”
As lost and traumatized lives mount, and the danger to public safety increases, what was once unthinkable is now routine and normalized under Heller.
- Since the gun epidemic was declared in 2015, already intolerable annual gun deaths accelerated from 36,000 to over 45,000, mass shootings doubled from 371 to 818, and school shootings likewise spiked.
- Students have held national Marches for Our Lives and protests.
- Stand-your-ground laws “have spread around the country” and “grown more extreme” (Allison Anderman, Giffords Law Center to Prevent Gun Violence, 2.27.22) [Wash. Post 2.27.22]
- Armed militia groups threatened Charlottesville protests in 2017, occupied the Michigan statehouse in 2020, pre-staged weapons for an assault on the U.S. Capitol in 2021.
- The conviction that gun-rights supporters and lawmakers have in their “rights” to arms and to resistance, myths that Heller legitimizes, is growing more entrenched and radical.
A surging gun epidemic, like the COVID-19 epidemic, requires effective solutions NOW.
- Mainstream gun control, ignoring Heller and having no answers for a surging epidemic, is left to mark the rising toll, e.g.: “Gun deaths have skyrocketed in recent years, a devastating trend that shows no sign of slowing down” (Robyn Thomas, Giffords Exec. Dir., 1.27.22).
- Its solutions – electoral change, community-based programs, grassroots efforts analogous to drunk-driving, repeal, remaking the Court – are as misguided as they are narrow, uncertain and slow.
- A better approach is to look to the COVID-19 analogy and how vaccines got developed so quickly. They are a result of decades of intensive research and work, defying the 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 recovering the lost meaning of the 2nd Amendment, defying the orthodoxy that it could not be done.
This epidemic is an ongoing, worsening tragedy. The real tragedy is it didn’t have to happen had the mainstream gun debate not abandoned the longtime state right, and greater efforts been taken to understand it.
AEP’s attorneys have spent years resolving the enigmatic 2nd Amendment and developing the “cure” for Heller. We need your help to do what no one thinks possible, but is essential: to lead challenges to overturn Heller in the courts, who created this crisis and who must end it.
We are also dedicated to changing the misguided mainstream gun debate by educating the public about the 2nd Amendment’s true meaning and Heller’s malign effects.
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 effecting real change.
We are a non-profit 501(c)(3) organization. Gifts to the American Enlightenment Project are tax-deductible.