About AEP

More Guns, More Shootings—We Need a Paradigm Shift

A Missing Front Against America’s Epidemic of Gun Violence—that Arose after the Supreme Court Found a Right to a Gun

 

What is AEP?

The American Enlightenment Project is a 501(c)(3) non-profit organization. AEP is dedicated to ending the gun epidemic by overturning the Supreme Court decision that created it, District of Columbia v. Heller (2008), and correcting the misguided 2nd Amendment guesswork behind it.

Before Heller, there was no epidemic. Gun violence had been declining or flat for years. Courts uniformly held the 2nd Amendment “solely protects the right of the states to keep and maintain militia,” the right debated at founding. In Heller, in a “radical change in the law” (Stevens, J., dissenting), a 5-4 majority, not addressing the long state right, found an implied individual right to a gun for self-defense, of which there is “not a word” in the text or debates as Justice Stevens later noted, calling it “quite absurd.” The dissent’s own conjecture—“Surely it protects” a right to bear arms for militia duty—was mocked as a “right to be a soldier—an absurdity,” and not debated either. In 2010, Heller, which tossed D.C.’s handgun ban, was extended in McDonald v. Chicago to bans nationwide. By 2015, guns and gun violence had surged to become a declared “Gun Epidemic.” In 2022, Heller was expanded again in NYSRPA v. Bruen, to gut bans on public carry, making the epidemic worse.

Heller “created a new blockbuster right” to own a gun “not apparent to the Court for over two centuries.” (Judge J. Harvey Wilkinson, 2009)
Forgetting the American Enlightenment and how to read our organic laws, we now have what prior generations did not—a gun crisis.
Launched on Heller’s 10th anniversary, AEP was formed to undo that egregious decision, focus on its deadly effects, and educate the courts and public in the real 2nd Amendment.

This crisis has overtaken our ability to manage it. After Heller, guns and deaths soared in tandem, from 305 to 400 million guns and 31,500 to 45,000 annual deaths. Now 327 people a day are shot in the United States, “more than 200 wounded, 120 killed. The same number of deaths—120—will happen again tomorrow, the day after that, the day after that, every day, until we come to our senses and do something about it.” (Fareed Zakaria, Wash. Post 5.13.23)

Ending the gun crisis requires a paradigm shift—a fundamental change in basic assumptions in how we understand and apply Heller and the 2nd Amendment.

 

Why AEP?

AEP is the one gun violence prevention (GVP) organization to recognize that, to make sense of and end this epidemic, ONE MUST first identify the disease, then develop an effective cure:
  • Mainstream GVP organizations advocate commonsense gun safety, and hundreds of millions are spent to fund their solutions—modest reforms, electoral change—focused on symptoms, not the disease.
  • A better approach is to develop a cure. Covid-19 vaccines followed decades of research, defying orthodoxy that mRNA would not work. That is the only way to end this otherwise incurable epidemic, too.
  • AEP’s counsel spent years finding both a cure for Heller and the 2nd Amendment’s lost meaning, upending common wisdom neither could be done.

Despite clear evidence, mainstream organizations never identify the disease or ask why gun violence exploded in recent years. They choose to ignore Heller, the pernicious decision that put America in peril, unable to change it. Heller’s devastating, destabilizing consequences include:

  • Mass shootings twice a day (@GunDeaths), road-rage shootings every 16 hours (@DefensiveGun), child shootings “EVERY DAMN DAY” (@DomesticGunViolence)
  • A society living in fear, unable to protect itself
  • Private militia, armed resistance, political violence
“As we face this crisis and are clear-eyed about the harm, let us also understand who is responsible” (Vice Pres. Kamala Harris on abortion, 1.22.24) —sage advice yet to be applied to gun violence.

girl with sign

Mainstream messaging that Heller is “not the problem” is wrong and deflects scrutiny. When the media reports “Little consensus on why gun sales and deaths are surging” and “There are too many shootings to cover” (Wash. Post 7.10.22, 7.11.22), it seldom mentions Heller’s radical change. Independent media finally called out Heller after the Highland Park July 4th parade massacre, in “America’s unique gun problem, explained” (Vox 7.4.22):

Heller “went much further” than possession to find a right of self-defense and to handguns, “responsible for far more deaths than any other weapon.” Bruen last year made reform “even harder,” and “the future of firearm regulation looks grim.” “The Court has made it impossible to cure America’s gun violence epidemic.” 

The U.S. Supreme Court disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard public movement. Hawaii v. Wilson (Haw. S. Ct. 2.7.24)
Mainstream slogans ‘we are winning’ and ‘play the long game’ are divorced from reality, even within the movement. The former leader of the Arizona chapter of Moms Demand Action explains:

“When I joined Moms in 2014, desperate to do something after the Sandy Hook Elementary massacre, 86 people were dying every day. Today it is 120. It became hard to claim the movement is ‘winning.’ Its goals and tactics made little dent, likely due to a taboo topic: the legitimacy of the right to guns found by Heller. In my time working on GVP, the surge in gun violence after Heller was never conceded much less questioned. I became demoralized fighting the same battles over and over. Marathon or sprint, we were not moving forward.”

Mainstream GVP organizations have let Heller’s devastating effects go unspoken for 15 years.
“AEP gives me hope again. Overturning Heller is not easy but necessary. By restoring the 2nd Amendment to its purpose, we can end the source of this crisis and allow GVP strategies to gain traction.” (Geneva Haber 8.14.23)

Mainstream organizations—avoiding Heller, guessing about the amendment, and offering modest solutions—simply are not focused on and thus can never cure the disease.

There is a short game, with a game-changing cure: undo Heller in the courts. We invite you to explore our Gun Crisis page showing Heller’s consequences, and the rest of AEP’s site, Problem Turns Epidemic, 2nd Amendment Explained, Heller’s Amendment, providing information all should know about the Heller-fueled crisis and how to end it.

 

Who is AEP?

With its board and advisors, the American Enlightenment Project is led by counsel with an accomplished record as a trailblazer resolving legal enigmas. After Sandy Hook, co-founder Robert Ludwig began years of in-depth historical and legal research of the founding-era record, Constitution, Enlightenment, and centuries of Anglo-American and other precedent, immersed in its “political and intellectual atmosphere” and “enormous mass of material” (A. Scalia 1989). Undeterred by conventional wisdom that Heller is unassailable and the 2nd Amendment unknowable, AEP’s co-founder uncovered conclusive evidence of its forgotten origins and meaning, making connections not obvious from the way the record usually is read, and exposed glaring errors and omissions that require Heller be overruled.

The Court already has vindicated one AEP insight, that the amendment’s command “shall not be infringed” protects a public right. In 2018, a 7-2 Court reaffirmed that patents (in patent infringement) involve “public rights,” over a dissent that “most everyone considered a patent a personal right.” That decision correcting a related myth, ironically by Justice Thomas, a Heller stalwart and Bruen author, shows popular myth can be undone—in this Court.

Prominent founding-era scholars are coming around, including Stanford historian Jack Rakove, the preeminent James Madison and founding-era scholar, Pulitzer Prize-winning author of Original Meanings, and lead historian on an amicus brief in Heller.

“I agree with virtually everything in the AEP piece [2A Explained, Heller’s 2A], including the nifty discussion of infringed.” (@JRakove, 7.8.23)

 

What AEP Does

AEP is spearheading an effort to correct the misguided interpretation of the 2nd Amendment in Heller that declared a right to own a gun, contrary to longstanding jurisprudence, with the ultimate goal of ending its gun epidemic.

  • 1. AEP shows Heller is at the root of the gun epidemic

    • “To understand the real problem, google ‘Argument turns deadly.’” (A. Wiles tweet, 7.24.22). This crisis cannot be explained by mental health, poverty, or Covid, all found in other nations with a fraction of our gun violence.
    • After Heller, gun deaths and shootings of all types rose and then accelerated, creating an inflection shown by virtually every metric.
    • “’Most murders are committed by law-abiding citizens where spontaneous violence is generated by anger, passion or intoxication’” (Justice Breyer).
    • Empowering all citizens with guns, Heller turned those unable to control impulses into “criminals.”
    “I am appalled by [the record shootings] but not mystified how it happens. The availability of guns everywhere and their use by people of all ages should be obvious to the most casual observer. Until judges start reading the 2nd Amendment in a strict constitutional sense — i.e. that ‘militia’ means just that: an organized governmental armed force — this slaughter will continue. (John Elsbree to Wash. Post ed. 1.9.24)
  • 2. AEP shows the personal rights argued in Heller were wrong and absurd

    In Heller, both sides argued individual rights—to serve in militia and of self-defense—neither debated at founding, and called by the majority and dissents, respectively, “an absurdity” and “absurd.”

    • Throughout the 20th century, the unanimous view of federal judges, including conservative nominee and likely decisive vote, Robert Bork, was the 2nd Amendment “guaranteed the right of states to form militia, not for individuals to bear arms,” that “allowed states” to resist a “tyrannical national government.”
    • In 1991, former Chief Justice Burger denounced an individual right as “the greatest piece of fraud”
    • In 2008, the Heller Court did not address the existing state right to keep armed militia—the only right debated—because GVP advocates, who never lost arguing it, chose to drop it.

    Heller’s “implied” right of self-defense is absurd, as glaring errors show. But the right to serve in a militia that GVP advocates argued—a “sophisticated collective rights theory”—is just as absurd.

    • D.C.’s counsel argued the right to serve was “invocable in court,” citing no case where it was invoked in 200 years, or any real support, and missing that the Court in 1827 rejected the idea of militia suits as “subversive of all discipline.”
    • GVP advocates never defined their collective, nor could they: the only collective people in our system is the body politic—the state.
    • Nor did they address the militia system for defense of the state, the focus of the unanimous U.S. v. Miller (1939) decision that led to uniform court recognition of the state right.
    • Nor say how their right to serve in a militia (or on a jury, as also imagined) could be a duty subject to fines or prison, unlike other rights.
    • Explained as a right to a gun…to fulfill the duty to serve in a militia” (NYU’s Michael Waldman, The Second Amendment, 2014) it made no sense.
    • Argued as a right to a gun for militia duty but not self-defense—break glass for one emergency, not the other—the theory was not even plausible.
    Dropping the longtime state right for a theoretical individual right, GVP advocates left the Heller majority no choice but to find the other individual right by default.
    Following the herd—without independent thinking or review of their unsupported theory—GVP advocates all but invited Heller’s radical right that is leading the country over a cliff.
    Justice Stevens in dissent, speculating “surely” the right to serve exists, could offer only lip service. Hedging, he also noted: the Amendment was designed to protect the right of each of the States to maintain a well-regulated militia. In McDonald, he repeated: “It was the States on whose immediate behalf [it] was adopted.”

    Deriding each other’s right, neither could explain why theirs was not debated. Nor account for Madison’s draft conscientious-objector exemption (“no person scrupulous of bearing arms shall be compelled to render military service”), which would have been superfluous under both a right of self-defense and to serve, but not a state right.

    Such contradictions should have caused GVP advocates to see individual rights were dead ends, and revert to the long-recognized state right that was consistent with the record. Blind to the consequences, they never mentioned it.

  • 3. AEP shows Heller is a historic blunder

    Justice Stevens called Heller “the worst self-inflicted wound in Court history.” It’s worse than he knew.

    Citing dictionaries and little founding support, Heller rewrote the 2nd Amendment into constitutional artifice —“A disciplined citizens’ militia, being necessary to the security of a free polity, the right of individuals to have and carry a handgun in the home, shall not be abridged.”

    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

    Among its glaring errors, Heller rewrote:

    • well regulated as “disciplined”—reducing the country’s first constitution (from “well-regulated and disciplined militia” to “disciplined and disciplined militia”), and the amendment, to imbecility
    • militia as “citizens’ militia”—conflating “citizen soldiers” and “militia” into an oxymoron
    • the people as individuals—ignoring context: the opening clause it reduced to nonsense, and last clause it missed
    • keep and bear as “possess and carry”—missing idiomatic uses of each term
    • arms as personal weapons—borrowing a “billy club” case’s miscitation
    • infringed as “abridged”—defining neither, carelessly transposing terms of art not even synonyms

    Worse, the textualist Heller Court, purporting to decide the full text—each and every word—never reached the verb on which the amendment rests. Unlike abridged—used in the 1st Amendment (the Senate correcting House substitution of infringed) and all others since for personal rights—infringed was used in the 2nd Amendment and other organic laws like the first constitution (“the legislative right of any state . . . be not infringed”) to protect a public right.

    Heller’s related right to “weapons typically possessed by law-abiding citizens for lawful purposes” rests on fiction, that military and personal weapons “‘were one and the same.’” That notion, ignoring militia statutes specifying arms, comes from the “billy club” case that miscited a swords encyclopedia refuting it. (That 1980 case was also Heller’s unattributed source for “citizens’ militia,” the first in 200 years to use that misnomer, misreading other authority.)

  • 4. AEP shows Heller is not just wrong but dangerous

    The Heller majority said it was “aware of the problem of handgun violence in this country,” yet took “policy choices off the table” and guaranteed to all Americans the right to have the firearm used in most shootings. Heller’s dangerous new right triggered a predicable—and predicted—epidemic of guns and gun violence: impulsive, angry, and intoxicated shootings; domestic violence, suicides, and accidents; devastated homes, businesses, and communities; ever-growing threats to personal safety and fear; and breakdowns in public safety, order, and the domestic tranquility promised in the Constitution.

    Justice StevensHeller “curtails the power to regulate that contributes to” the “slaughter caused by the prevalence of guns” (Stevens, J.)
    “The majority’s decision threatens severely to limit the ability of … officials to deal with gun-related problems” that “threaten the breakdown of law and order.” (Justice Breyer, dissenting)

    Miscalculating badly on the 2nd Amendment, Heller is responsible for not one “tragic act of mayhem,” but relentless mayhem nationwide. Each day, through mass shootings and less publicized but even more widespread carnage, countless Americans, families, and communities pay the price.

    “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because we miscalculated as to 2nd Amendment rights.” (4th Cir. 2011, Wilkinson, J.)

    Heller’s related right, of “citizens’ militia as a safeguard against tyranny” if “constitutional order broke down,” has inspired surges in private militia, armed resistance, and political violence. Endorsing pernicious myth, the Court has normalized menacing public displays of military-grade weapons.

    That was plain wrong. “Citizens’ militia” is an oxymoron that conflates “citizen soldiers” with “militia.” The States were meant to provide that constitutional safeguard, as Alexander Hamilton and Madison both explained. Worse, it was “productive of anarchy” as Blackstone warned, if each citizen can decide if order broke down. The Court’s reckless rhetoric has bred political violence and militia plots to kidnap or assassinate political leaders, including a governor, vice president, even a Supreme Court justice.

    Heller has led to a doubling of pseudo militia, including the Three Percenters (2008), Oath Keepers (2009), Boogaloo Boys (2012), and Proud Boys (2016). Anarchy has resulted, sometime deadly, in Charlottesville, Lansing, and the U.S. Capitol on January 6 (Stewart Rhodes declaring the 2020 election “unconstitutional” with calls to “rise up in insurrection” and for “bloody civil war”; another insurgent claiming his “constitutionalist” right).

    back of people holding guns in the air

  • 5. AEP shows Heller cannot legally stand

    Justice Stevens urged “overruling Heller is desperately needed,” but seeing no way to persuade this Court, advocated repeal instead. That is not only improbable, but wrong as ignoring constitutional bedrock: the 2nd Amendment serves as an essential state check on federal tyranny. It is also unnecessary: overturning the mighty Heller is all but inevitable.

    • Heller’s failure to decide the full text—infringed—means, as well established, it can have no binding effect
    • Reconsideration is also warranted where Heller failed to address existing law—the state right
    • Heller’s rewrite of 2nd Amendment terms—untenable on their face—reduced it to impermissible nonsense
    • Heller’s superficial reading of the people as persons ignored context, founding concepts, and usage
    • The Court undermined Heller in 2018, holding patent infringement involves a “public right”
    • Heller itself recognized that absent rewriting well regulated militia as disciplined citizens’ militia—or nonsense—a personal right “fits poorly”
    • The personal rights addressed in Heller were undebated, without real support, and absurd, leaving the one actually debated: a state right

    Almost all these plain errors and oversights have been missed, indicating Heller, the amendment, and founding are not closely read by lawyers, scholars, or courts. The start of a long list, they reveal Heller as a house of cards.

    Nothing prevents the courts from deciding what Heller never did: the full amendment. Not construing all the text or other terms in relation to infringed, context or basic usages, little is left that does not require reconsideration.

  • 6. AEP proves the 2nd Amendment is a state right and no bar to gun reform

    As long understood but never proven, the 2nd Amendment protects state militia. It has nothing to do with a personal right to guns that turns everyday angry impulses, that normally end in words, into today’s gun violence.

    AEP explains the amendment’s blind spots, its origins, how its wording was adopted, and what it means.

    • 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 arm militia—left the States’ right to arm implied and subject to federal tyranny. They demanded it be made express, which is all that was debated.
    • How the amendment gave States what they demanded has mystified scholars and courts, who assumed away text, the first constitution, militia system, and key parts of the founding record.
    • Its real origins, object, and full text all show a state right. AEP breaks down the precise use of language to reveal its meaning, e.g., why the people means the States, and infringed protects a public right.
    • “Context is everything” (A. Scalia 1997). Yet in Heller, both sides simply assumed the amendment refers to persons, leading to undebated meanings. They missed the context and deeper meaning: the people in an amendment about militia for defense of the state—a public right—are the States.
    Experts, relying on professional intuition, tend to take shortcuts and make false assumptions.  “They are much too quick to jump to conclusions,” however wrongheaded and against their own best interest, and “much too slow to change.” (Daniel Kahneman, “Thinking, Fast and Slow”)
    The 2nd Amendment is mysterious today because we no longer use its terms, inseparable from that era, and scholars and courts assume away what explains them.
    Suppose the amendment were ratified last year and the only right debated was the States’ right to keep and arm militia as a safeguard against federal tyranny. There would be no mystery what it meant.

    AEP also shows that the 2nd Amendment, protecting a state right, is no bar to gun reform.

    • “There is no reason why all pistols should not not be barred” (Douglas, J., 1972).
    • Once Heller is overruled, Congress and the States will be free to regulate firearms as before.
    • With 400m guns, returning to pre-Heller levels can be hastened by commonsense classifications and bans, buybacks, licensing, mandated insurance, and restrictions on ammunition sales.
    Canada has our heritage, happy gun owners, and no epidemic. It classifies firearms as unrestricted (hunting rifles), restricted (handguns, semi-automatics) and banned (automatic weapons).
    Australia and New Zealand show buybacks and bans work: Few Australians would deny their country is safer today” (former PM John Howard).

 

What you should know

As a national “Gun Epidemic” was declared in a front-page New York Times editorial in 2015, Justice Stevens stressed how “profoundly important” it is for Americans to understand Heller’s role in “the slaughter caused by the prevalence of guns.” It is also important to understand what is behind Heller and its epidemic.

Everyone has been guessing in determining dangerous gun rights

The Heller Court was guessing. So are scholars, calling the amendment “baffling” (Columbia law professor Michael Dorf) with “no definitive answer” what it means (Harvard’s Mark Tushnet in Out of Range). They assume it can never be explained, saying to claim otherwise is “blowing smoke” (Tushnet) or “likely wrong” (Fordham historian Saul Cornell). Giving up, they urge courts to defer to “deep commitments” to gun rights of some and “reasonable restrictions” sought by others “without purporting to untangle” it (Harvard’s Cass Sunstein). Guesswork is often wrong, as when it fails to consider text and other things in plain sight. And when based on superficial textualism—whether the dictionary-based doctrine of the Heller majority or linguistics approach of the dissents and GVP advocates—that overlooks key founding record, concepts, and context.

“Knowledge is essential to understanding, which should precede judging.” (Brandeis, J.) 
This epidemic is a tragedy that did not have to happen—had both sides not purported to alter the long states’ right understanding of the 2nd Amendment through guesswork.
Mainstream fatalism about cracking its mystery is self-defeating—the framers knew what it meant—and proving fatal as Heller’s progeny take more legislative choices “off the table.”

Odd bedfellows: NRA and GVP leaders support Heller’s right to a gun

After the Parkland massacre, Max Boot in “The 2nd Amendment is being turned into a suicide pact” (Wash. Post op-ed 2.15.18), cast blame on leaders, “primarily but not exclusively Republicans,” for “idolatrous worship” of the amendment.

Ironically, a long line of Democrats endorse the NRA’s asserted right to a gun for self-defense that conservative jurists called “the greatest piece of fraud” the decade before Heller. Presidents Clinton, Obama and Biden all do, along with congressional shooting victims and GVP leaders. House leader Steve Scalise (R-LA), sponsor of a bill to force states to allow licensed carry, then shot at GOP baseball practice by a licensed gun owner, strongly backs gun rights. Former Rep. Gabby Giffords (D-AZ), shot at a campaign event, “commend[ed] the Court for restoring our right to bear arms” and backs gun rights as head of the Giffords Law Center to Prevent Gun Violence. Sen. Chris Murphy (D-CT), the face of gun safety in Congress, wrote in The Violence Inside Us (2020), after cursory analysis: “I think Heller is basically correct” and “it’s time for my side to admit it.”

Today’s right, yesterday’s fraud.
“Gun control advocates have righteous zeal and noble motives” yet “fall into the trap of lamely insisting ‘We support the 2nd Amendment but also support responsible gun control’”—a “self-defeating strategy.” (Allan Lichtman, Repeal the Second Amendment, 2020).
They have also been painfully slow to grasp the nature and magnitude of the threat of Heller’s guaranteed dangerous freedom. And to wake up to the fact their personal right is a fraud, too.

So do leading GVP advocates. New York solicitor general Barbara Underwood, asked by Justice Barrett in Bruen, was “quite content to treat Heller as rightly decided”an ill-advised concession in the case that extended it to public carry. Harvard’s Laurence Tribe, whose American Constitutional Law editions cycle through all three meanings (“guarantee state sovereignty,” right to serve, right of self-defense), dismissed Justice Stevens’ efforts to undo Heller in “The 2nd Amendment isn’t the problem” (Wash. Post op-ed 3.28.18), missing the real problem and amendment.

Most GVP advocates, however, dismiss Heller’s right of self-defense as not found in the amendment and absurd. But they fail to see their own personal right theory—to bear arms in a militia—is just as unfounded and absurd.

Heller and GVP’s other setbacks must be confronted—not ignored

  • Mainstream GVP ignores the elephant in the room and its damage

    • How Heller boosts gun sales and deregulation, and blocks or chills all but marginal reform
    • How Heller creates a dystopian America of angered citizens using guns to settle disputes
    • How Heller inspires militia activity, armed resistance, and political violence
    Talking around Heller and its constitutional guarantee of a dangerous freedom, mainstream organizations are sleepwalking the country into a deepening, self-inflicted crisis.
  • Mainstream GVP lost every major 2nd Amendment case arguing an absurd right

    • D.C. v. Heller, 554 U.S. 570 (2008) (finding right to own a gun for self-defense, overturning D.C. handgun ban)
    • McDonald v. Chicago, 561 U.S. 742 (2010) (extending Heller’s right to the states, overturning a Chicago ban)
    • Caetano v. Massachusetts, 577 U.S. 411 (2016) (extending Heller’s protections to stun guns)
    • NYSRPA v. NYC, 140 S. Ct. 1525 (2020) (compelling NYC to drop restrictions on transporting licensed guns)
    • NYSRPA v. Bruen, 597 U.S. 1 (2022) (extending Heller to public carry, overturning N.Y.’s good-cause license law)

    In the last two defeats, a few GVP advocates finally brought amicus challenges to Heller. But such attempts, repeating the theoretical right to serve in militia that Heller rightfully rejected as “an absurdity,” stood no chance.

    Such hopeless challenges, not questioning the theory, use corpus linguistics (computer analysis) to argue that bear arms was used almost exclusively for military service, missing that such consistent usage likewise supports a state right, and makes the theory no less absurd.

    To argue the meaning of founding terms in service of an absurdity—an individual right to bear arms in a militia—is to argue an absurdity.

    Likewise in U.S. v. Rahimi now before the Court, former Brady counsel Jon Lowy and Prof. Carl Bogus argue in an amicus brief “the right of the people to participate in a state militia,” still citing no support. But like Justice Stevens, they add the amendment “was solely concerned with protecting state authority from federal infringement.” It can’t be both. Only one is supportable, not absurd, and the real right. It remains to be argued in a real challenge, with real support.

  • GVP blames Heller's progeny, Bruen, ignoring the wolf that came as a wolf

    Mainstream GVP now blames Bruenwhich extended Heller to public carryfor going beyond Heller’s statement that the right “is not unlimited,” and putting its presumptive exceptions and most gun restrictions at risk.  But the problem has always been Hellera catastrophic defeatthat GVP advocates keep miscasting in rosy terms, deceiving us or themselves.

    Contrary to public assurances, e.g., by Duke’s Joseph Blocher and SMU’s Eric Ruben that Heller “gives blessing to a potentially wide range of regulation,” in “The 2nd Amendment allows more gun control than you think” (Vox, 6.14.18), Heller offers only obiter dicta (passing remarks) in a few lines of a 66-page majority opinion. Its “presumptively lawful” examples19th and 20th-century limits on (1) carrying concealed weapons; (2) possession by felons and (3) the mentally ill; (4) sensitive places like schools and government buildings; (5) commercial saleswere not even “judicial dicta” (opinions on issues raised but unessential to the decision), but ipse dixit (we said so) that the Court left for future determination.

    GVP advocates criticize Bruen as imposing a new test—a founding-era “analogue”—but Heller created it as Justice Breyer’s dissent reflects (“why would the majority require a precise colonial analogue to save a modern regulation?”), along with its “historical tradition” corollary. Both invite what Justice Scalia once objected to as a judicial “shell game” that, “consciously or not, will conceal raw judicial policy choices” (Planned Parenthood v. Casey) (Scalia, J., dissenting)just what GVP advocates blame on Bruen. They also lambaste Bruen for disallowing “interest-balancing,” when it was “expressly rejected” by Heller (per McDonald).

    The truth is, Heller came as a wolf, not in sheep’s clothing, but fig leaves. They were so thin that by 2012, one critic who called Heller a “snow job,” federal appeals judge Richard Posner, held he was compelled by Heller to gut Illinois’ ban on public carry, adding to Chicago’s record violence post-Heller.  It was so obvious a decade later in Bruen, New York conceded that Heller, despite its dictum, allows public carry. It is Heller that “threatens to throw into doubt the constitutionality of gun laws” nationwide (Breyer, J., dissenting)That is why Justice Stevens warned its “dramatic upheaval” of gun law “desperately needs” to be overruled. Bruen, which made clear it was applying Heller, should not be blamed but instead serve as a wake-up call to ask, “Is Heller really the right standard for deciding 2nd Amendment rights?”

    “Often an issue will come clad in sheep’s clothing: the potential to effect important change must be discerned by careful analysis. But this wolf comes as a wolf.” — Morrison v. Olson (1988) (Scalia, J.).
    “We add to the ever-growing chorus of courts that have implored the High Court to answer the many questions Bruen left unresolved—or reconsider its path entirely. Our Nation is gripped by deadly gun violence our founders never conceived. … We cannot help but wonder (and fear): What’s next?” — Barris v. Stroud Twp. (Pa. Supreme Ct. 2024)
  • The Court's 6-3 supermajority has begun actively enforcing gun rights

    The Court has heard two cases this term and accepted a third for review: Rahimi (reviewing domestic-violence orders that limit gun possession); Garland v. Cargill (ATF ban on bump stock devices); Garland v. VanDerStok (ATF rule on homemade ghost guns). Other cases may soon be accepted that imperil other restrictions and bans.

    Assault weapon and large magazine bans, the subject of multiple en banc decisions and cert. petitions, are poised for review, without circuit splits. In Bruen, the Court repeatedly cited then-Judge Kavanaugh’s dissent against D.C.’s assault weapons ban. Absent a serious challenge to Heller, the Court may adopt his reasoning to extend its “common use” fiction to AR-15s: i.e. since most handguns are semi-automatic and there’s “no meaningful constitutional distinction between semi-automatic handguns and semi-automatic rifles,” AR-15s, as a “popular semi-automatic rifle” are covered. (One meaningful distinction: an AR-15 leaves a grapefruit-size wound. Another sad irony: Heller held weapons of war unprotected under the 2nd Amendment, turning itand its state right to arm militiaon its head.)

    Felony possession bans, given a circuit split, are poised for review and being overturned, despite another Heller dictum. As Justice Breyer warned in Bruen, then-Judge Barrett, dissenting in a 2019 Seventh Circuit case, showed “founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.”

    Also at risk are sensitive place bans despite Heller’s dictum, that Bruen in more dictum “assumed settled,” guns at founding generally were allowed in legislatures, churches, and schools. Even if upheld, silos offer no protection to students outside schoolsin playgrounds, buses, parking lotsand to persons outside government buildings.

 

 

How you can help

Profound change is needed when the paradigm under which gun safety operates is unable to protect society itself. This epidemic needs a cure—NOW.

While litigation usually is one piece of a long-term strategy for constitutional change, the gun crisis arose after Heller’s “dramatic upheaval in the law” (Stevens, J.). The surest, quickest way to end it is to overturn Heller.

“Constitutional wrongs do not right themselves.” (Justice Ketanji Brown Jackson)

That is the mission of the American Enlightenment Project. AEP is the one organization to recognize the need for, and then develop, a game-changing response to Heller and constitutional myth that hinder responsible gun control:

 

  • Effective challenges to overturn Heller in the courts, who created this epidemic and must end it
  • Reinstating the ability to legislate reform, upon policy choices legislatures, not courts, are suited to make
  • Recovering the lost meaning of the 2nd Amendment, which has nothing to do with a personal right

Our work is groundbreaking. But upending conventional wisdom, resolving a constitutional mystery, and undoing a landmark decision all take significant resources. Please make a donation to support AEP today.

Join us. You can make a difference.

We are a non-profit 501(c)(3) organization.
Gifts to the American Enlightenment Project are tax-deductible.