A Missing Front Against the Gun Epidemic that Arose after the Supreme Court Found a Right to a Gun.
What Is AEP?
The American Enlightenment Project is a 501(c)(3) nonprofit formed to end the epidemic of gun violence by challenging the Supreme Court decision that fuels it, D.C. v. Heller, and the 2nd Amendment guesswork that underlies Heller.
Before Heller’s “radical change in the law” in 2008 (Justice Stevens, dissenting), courts in the 20th century uniformly held the 2nd Amendment was “meant solely to protect the right of the states to keep and maintain armed militia.” After Heller overturned handgun bans, applied nationwide in McDonald v. Chicago (2010), guns and gun violence increased and then accelerated to what America suffers today. Last year, NYSRPA v. Bruen (2022) applied Heller to gut bans on public carry and threaten most gun laws, making the epidemic worse.
AEP approaches this national health epidemic from a different perspective – its source:
- AEP shows the last decade’s surge in guns and gun violence stems from Heller’s new right to have a gun.
- AEP shows Heller is flagrantly wrong, a house of cards that can be overturned, even in this Court
- AEP groundbreaking work finally proves that the 2nd Amendment, baffling to scholars and courts, protects a sovereign state right to keep armed militia, as long understood, not a personal right
Mainstream gun violence prevention (GVP) organizations advocate for sensible gun reform, and hundreds of millions have been spent to fund their modest “common sense” solutions in legislatures, elections, and courts. All to little avail: the epidemic keeps growing.
Despite mounting evidence of Heller’s deadly effects—now impossible to ignore—mainstream GVP groups still choose not to blame the decision that put America in peril, fatalistic about being able to change it.
- Mass shootings now occur twice a day (@MassShootingTracker, @GunDeaths), road-rage shootings every 16 hours (@DefensiveGunUse), and child shootings “EVERY DAMN DAY” (@DomesticGunViolence)
- Destabilizing effects include a society unable to protect itself, schoolchildren and a public living in fear, soaring healthcare costs, pseudo militia, armed resistance, and political violence
One looks in vain for mention of Heller’s effects by major GVP organizations (www.Everytown.org, www.Giffords.org, www.BradyUnited.org) and researchers. Not addressing whether Heller is behind this epidemic, such groups insist Americans can “live with” Heller, the decision that is killing them.
GVP messaging that Heller is “not the problem” is wrong, enabling, and deflects media scrutiny. When mainstream media reports “There are too many shootings to cover” (Wash Post 7.11.22), and “Little consensus on why gun sales and deaths are surging” (7.10.22), it seldom mentions Heller’s radical change in the law.
Independent media finally called out Heller last year after the July 4th Highland Park parade massacre, in “America’s unique, enduring gun problem, explained” (Vox 7.4.22):
Heller “went much further” than a right to 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.”
GVP slogans “we are winning” and “play the long game” have become divorced from reality, even to some in the movement. The former Moms Demand Action chapter leader of Arizona explains:
“When I first joined Moms in 2014, desperate to do something after the Sandy Hook Elementary shooting, 86 people were being killed every day. Today it is 120. I found it difficult to see that rising statistic and still claim this movement is ‘winning.’ While its goals and tactics are worthwhile, they have not made a dent in the ever-rising toll. This may be because of one topic that is off-limits: the legitimacy of the 2nd Amendment, or more specifically, the right to own guns as interpreted by Heller in 2008. In my time working on GVP, the dramatic increase in gun violence after Heller was never acknowledged, much less questioned. I became demoralized fighting the same battles. Marathon or sprint, we were not moving forward.”
A “long game” wouldn’t be necessary had mainstream GVP not taken a long detour advocating its own individual right, to serve in a militia, inviting Heller’s right through unexamined assumptions, guesswork, and groupthink.
There is a short game, with a real solution: undoing the basic errors of Heller and other GVP advocates in the courts.
Like most solutions it begins with a more analytical approach: to the gun epidemic, Heller, and the underlying 2nd Amendment. Only by unraveling its mystery can there be any hope of overcoming Heller and ending the epidemic.
Who Is AEP?
With its board and advisors, AEP is led by appellate counsel with a record of prevailing in cases of longtime legal enigmas by solving them. After the 2012 Sandy Hook tragedy in 2012, AEP co-founder, Robert Ludwig, began years of in-depth legal and historical research of the 2nd Amendment. Undeterred by orthodoxy that it is hopelessly unknowable, he uncovered extensive evidence of its forgotten origins and meaning.
Finding numerous oversights and false assumptions, he applied the analytical approach and persistence he used to end a half-century inability of courts and scholars to explain similarly vexing text governing sovereign immunity, persuading Justice Scalia who wrote Heller and other justices that “substantial contact” means “minimum contacts” as an overlooked term of art. In a leading aviation case he untangled near-century-long conflicts involving the high seas, a resolution adopted in unanimous decisions by Justices Scalia and Thomas.
His first article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law360 1.11.16), was published weeks after the Gun Epidemic was declared and weeks before Justice Scalia’s death. That and later articles are available on AEP’s website, including “High Court Gun Rights Case Ignores Key Case Law Problem” (Law360 11.5.20).
The Court itself has begun to vindicate one key AEP finding, that the amendment’s command “shall not be infringed” protects a sovereign right. In 2018, a near-unanimous Court reaffirmed that patent infringement involves a “public,” not “personal right.” That 7-2 decision correcting a related misbelief, ironically by Justice Thomas, a Heller stalwart and author of Bruen, shows popular myth can be undone—in this Court.
Founding-era scholars are coming around, including the preeminent James Madison scholar and lead on a historians’ Heller amicus brief.
AEP’s breakthrough analysis of every part of the amendment overcomes years of guesswork and futility, and enables a return to and proof of the longtime state right, the undoing of Heller, and an end to this epidemic.
What AEP Does
Reshaping the conversation and the field, AEP offers the most effective—really only—solution to this crisis. AEP is the sole GVP organization that shows:
- Heller is central to this growing crisis, which will end only when it is overturned
- Heller is a glaring, historic blunder that cannot stand, even in this Court
- The real origins and meaning of the 2nd Amendment, which is no bar to gun reform
1. AEP shows Heller is at the root of America’s gun epidemic.
- “To understand the real problem just 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 (see Gun Problem Becomes Epidemic). And common sense: before Heller there was no epidemic.
- “’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.”
2. AEP shows both individual rights argued in Heller were plain wrong.
In Heller, both sides argued their own individual rights—to serve in the militia and of self-defense, of which there was not a word in the debates—that the majority and dissents, respectively, called “an absurdity” and “absurd.”
- Throughout the 20th century, the unanimous view of federal judges, including conservative Court 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,” and “allowed states” to resist a “tyrannical national government.”
- In 1991, former Chief Justice Burger denounced the idea of an individual right as “the greatest piece of fraud”
- In 2008, the Heller Court never addressed the existing state right to keep armed militia—though founding debates were all about that right—because the GVP community, which never lost arguing it, chose to drop it.
The right of self-defense Heller “implied” was absurd, as glaring errors in the next section show.
But the right to serve in a militia that GVP advocates argued—a “sophisticated collective rights theory”—was just as absurd. As with any theory that conflicts with empirical evidence, they chose to ignore the evidence and just argue the theory, no matter how empty and ridiculous.
- DC’s counsel argued the right to serve was “invokable in court,” citing no real support, or case where it was invoked in 200 years, and missing that the Court in 1827 rejected the idea of militia suits as “subversive of all discipline.”
- Academics and lawyers who follow them 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 focus of the unanimous U.S. v. Miller (1939) decision that led to uniform court recognition of the state right.
- Nor explain 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.
- 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
- The Heller dissents, speculating “surely” the right exists, could offer no support or more than lip service. Instead Justice Stevens wrote, the amendment was “to protect the right of each of the States to maintain a well-regulated militia.”
- In McDonald, Stevens repeated: “It was the States, not persons, on whose immediate behalf the 2nd Amendment was adopted.”
Deriding each other’s individual right as absurd, neither side could explain why theirs was never debated.
Nor could either side account for James Madison’s draft conscientious-objector exemption. Writing the “right of the people to keep and bear arms shall not be infringed,” Madison added: “but no person religiously scrupulous of bearing arms shall be compelled to render military service.” GVP advocates note the exemption would be nonsensical were the right of self-defense. But they overlook that an exemption from service to their right to serve was nonsensical, too.
Such contradictions, among many, should have caused both sides to see individual rights were dead ends, and consider a right more consistent with the founding record. Blind to the consequences, neither side nor the Heller majority even mentioned the state right long recognized by existing law—which the founders did debate, and was consistent with that exemption and the record.
3. AEP shows Heller was glaringly wrong, a historic blunder.
Justice Stevens urged that “overruling Heller is desperately needed,” calling it “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 a constitutional artifice, reading: “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.”
Among its obvious errors, Heller changed:
- well regulated to “disciplined”—turning the governing first constitution (from “well-regulated and disciplined militia” to “disciplined and disciplined militia”), and the amendment, into an imbecility
- militia to “citizens’ militia”—conflating “citizen soldiers” and “militia” into an oxymoron
- the people to individuals—ignoring context, the opening clause it reduced to nonsense, and last clause it missed
- keep and bear to “possess and carry”—missing idiomatic uses of each term
- arms to personal weapons—repeating a “billy-club” case’s miscitation (below)
- infringed to “abridged”—not defining either, and 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 a 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 miscited a swords encyclopedia that refutes the notion. (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 amendment’s text—each and every word—never addressed the verb infringed on which it rests. Unlike abridged, used in the 1st Amendment (the Senate correcting the House’s substitution of infringed) and all others since for personal rights, infringed was used in the 2nd Amendment and organic laws like the first constitution (“the legislative right of any state . . . be not infringed”) to protect a sovereign right. As is elementary, a decision that overlooks text it purports to decide can have no legal effect.
4. AEP shows Heller is not just wrong but dangerous and destabilizing.
The Heller majority, saying it was “aware of the problem of handgun violence” but taking that “policy choice off the table,” granted for the first time a right of Americans to the most dangerous firearm, used in the vast majority of shootings.
Heller’s dangerous new right triggered a predicable—and predicted—American crisis of escalating guns, gun deaths, and woundings; angry, hateful and drunken shootings; domestic violence, suicides and accidents; and breakdowns in public safety and order across the country.
Miscalculating badly on the 2nd Amendment, through flagrant errors, oversights, and guesswork, Heller is responsible not for one “tragic act of mayhem,” but mayhem nationwide, with ever-growing shootings, carnage, and threats to personal safety, shattering domestic tranquility and devastating homes and communities.
Heller’s related dicta, about “citizens’ militia as a safeguard against tyranny” if “constitutional order broke down,” has inspired surges in private militia, armed resistance, and political violence. Endorsing for the first time pernicious myth, the Court has normalized intimidating, dangerous, and unlawful public displays of military-grade weapons.
That was plain wrong. “Citizens’ militia” is an oxymoron that conflates “citizen soldiers” with “militia” for defense of the state. The States are that constitutional safeguard as Alexander Hamilton and James Madison explained. Worse, it was reckless. The idea is “productive of anarchy,” as jurist William Blackstone warned, if each citizen or “citizens’ militia” could decide when order breaks down. The Court’s ill-advised dicta has bred rising threats of political violence, even against justices themselves, and militia plots to kidnap or assassinate political leaders like a governor and vice president.
5. AEP shows Heller’s flagrant errors cannot legally stand.
Justice Stevens, urging “overruling Heller is desperately needed,” saw no way to persuade this Court and advocated repeal in frustration. Repeal of the 2nd Amendment is wishful, unnecessary and wrong—it ignores constitutional bedrock: the amendment serves as the States’ check on federal tyranny. But overruling Heller is possible, and essential.
- Heller’s failure to address constitutional text—infringed—means it cannot legally stand.
- Reconsideration is further 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
- The Court undermined Heller in 2018, holding patent infringement involves a “public,” not “personal right”
- Heller itself recognized that without 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
Heller’s glaring errors and oversights above—the start of a long list—show it is not only wrong, but a flimsy house of cards that cannot stand, even in this Court.
6. AEP proves the 2nd Amendment is a state right, and no bar to gun reform.
AEP proves, for the first time, the 20th-century understanding that the 2nd Amendment protects a state right. AEP’s groundbreaking work removes longstanding blind spots, and shows the amendment’s real antecedents, who determined its precise wording, why, and how.
- 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 organize, arm, and discipline militia—left the states’ right to arm their militia 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 founding record, which present a different history and constitutional right.
- AEP breaks down the amendment’s precise use of language that reveals its plain meaning, including why the people means the state, and infringed protects a sovereign right
AEP also shows that the amendment, protecting only a state right, is no bar to any gun reform.
- As before, there’s “no reason why all pistols could not be barred” (Justice Douglas, 1972)
- Canada, sharing our heritage and urban-rural divide, has contented gun owners and no epidemic, classifying firearms as non-restricted (hunting rifles), restricted (handguns, semiautomatics) and banned (certain handguns, automatic weapons).
- Australia similarly shows buybacks and bans work: “Few Australians would deny their country is safer today” (John Howard, former PM)
- With 400+ million guns in circulation, returning to pre-Heller levels takes time. It can be hastened through debunking myth and various measures, including licensing, buybacks, and simply restricting sales of ammunition.
- Just ending the upward spiral of gun sales and violence will begin to reverse the epidemic.
So, What and Who to Believe?
It matters. If you see Heller is contributing to the growing crisis, or the cause of it, you should ask whether mainstream GVP organizations, by continuing to guess about the 2nd Amendment, treat Heller as taboo, and offer marginal solutions, help or hurt when it comes to the real problem.
And whether you should support a better approach.
Everyone was guessing, yet determining dangerous 2nd Amendment rights
The Heller Court was guessing. Scholars admit they’re guessing, calling the 2nd Amendment “baffling” as Columbia law professor Michael Dorf put it, with “no definitive answer to what” it means, as Harvard’s Mark Tushnet wrote in Out of Range. Worse, they assume it can never be explained, insisting to claim otherwise is “blowing smoke,” asserts Tushnet, or “likely to be wrong” says Fordham historian Saul Cornell, and gave up trying. Instead they urge courts, like Harvard’s Cass Sunstein, to defer to “deeply felt commitments” to gun rights of some and “reasonable restrictions” sought by others, “without purporting to untangle the amendment’s deep mystery.” Such fatalism is wrong—the framers knew what the amendment meant—and proving fatal as Heller’s “implied” right takes legislative choices off the table.
Guesswork is often wrong, as when it fails to consider the full text, state right, and other things in plain sight. And especially when based on oversimplified textualism—both under the dictionary-based doctrine the Heller majority applied, and linguistics-based variety of the dissents and GVP advocates. Both ignore founding concepts and sources that provide needed context.
To understand how badly all are guessing, suppose the amendment were ratified last year and the only right debated was of the States to keep and arm their militia as a safeguard against federal tyranny. There would be no mystery what it meant.
Odd bedfellows: the NRA and GVP leaders support Heller’s right to a gun
After the Parkland mass shooting, Max Boot in an op-ed, “The Second Amendment is being turned into a suicide pact” (Wash. Post 2.15.18), fixed blame on political leaders, “primarily but not exclusively Republicans,” for “their idolatrous worship” of the amendment—worse, a version that is myth.
Worse still, after Heller in 2008 turned myth into the supreme law of the land, most political leaders, Democrat and Republican, worship Heller. Or treat it as a sacred cow not to be publicly questioned.
Ironically, after conservative jurists dismissed NRA advocacy as a “fraud,” a long list of Democrats, headed by Presidents Clinton, Obama (who taught constitutional law), and Biden, publicly supported the 2nd Amendment right to guns the NRA advocated.
So did, improbably, congressional gun victims and liberal GVP leaders.
House Majority Leader Steve Scalise (R-LA), who sponsored a bill to force states to allow carry of guns licensed elsewhere, and was then shot at a congressional baseball practice by an Illinois resident with a licensed gun, remains a strong supporter of gun rights. Former Rep. Gabby Giffords (D-AZ), shot at a campaign event, had “commend[ed] the Court for restoring our right to bear arms.” As head of Giffords Law Center to Prevent Gun Violence, she still supports gun rights. Even the face of gun control in Congress, Sen. Chris Murphy (D-CT), writes (after cursory analysis) in The Violence Inside Us: “I think Heller is basically correct” and “it’s time for my side to admit” it.
So do some liberal lawyers. For example, New York’s solicitor general Barbara Underwood, asked in Bruen by Justice Barrett about Heller, said she was “quite content to treat it as rightly decided,” an ill-advised concession in the case that extended Heller to public carry. Harvard law professor Laurence Tribe—whose editions of American Constitutional Law cycle through all three meanings (from a “guarantee of state sovereignty” to a right to serve and now of self-defense)—dismissed Justice Stevens’ efforts to overcome Heller in an op-ed, “The Second Amendment isn’t the problem” (Wash. Post 3.28.18), missing the real problem and amendment.
Mainstream GVP’s individual right is just as wrong
Most GVP organizations and advocates, apart from those above, dismiss Heller’s right of self-defense as absurd. But they fail to see that their theory, a right to bear arms in a militia, is just as absurd and lacking in founding support. Described by one of its many adherents, NYU’s Michael Waldman in The Second Amendment, as “the right to a gun . . . to fulfill the duty to serve in a militia,” it makes no sense. While they argue Heller’s right was never debated, and rendered Madison’s proposed religious exemption nonsensical, their right to serve was never debated and made a service exemption nonsensical, too.
Never questioning their theory, they persist in trying to bolster it. Applying corpus linguistics, or computer analysis of founding records, they argue terms like bear arms were used almost exclusively for military service, overlooking that such usage was also consistent with the state right, and make their theory no less absurd.
Given the problems with their individual right, it’s not just Justice Stevens who has argued it both ways with the state right. In the U.S. v. Rahimi case now before the Court, several GVP advocates, including Brady’s former chief counsel, Jon Lowy, and Prof. Carl Bogus, argue in an amicus brief that the amendment protects “the right of the people to participate in a state militia” (still citing no support), but then say it “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.
The alternative: a more analytical, enlightened approach
The American Enlightenment Project saw early on that contradictions and lack of founding support rendered both individual rights dead ends. AEP then focused on proving, for the first time, the remaining state right, which is far more consistent with the text, what was debated, proposed exemptions, and founding concepts and sources.
Substituting an analytical approach for guesswork, and examining untested assumptions about its origins and wording, AEP has finally solved the elusive 2nd Amendment. And by dissecting Heller, its sources, and their sources, AEP has identified fatal errors and oversights other lawyers have missed, that require it be overruled.
Heller Must Be Confronted—Not Ignored
Mainstream GVP, not realizing the damage it is enabling, still chooses not to address the elephant in the room:
- How Heller boosts gun sales, shackles regulation and unleashes deregulation
- How Heller creates a dystopian America of angered citizens using guns to settle disputes
- How Heller inspires militia activity, armed resistance, and political violence
A surging gun epidemic, like Covid-19, requires effective solutions and action NOW.
- Mainstream GVP has no response to this crisis, except to lament its losses and the rising toll.
- Its solutions—community 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 Covid-19 vaccines, and how they appeared so rapidly. They were the result of decades of intensive research, defying orthodoxy that mRNA would not work. That is the only way to cure this epidemic, too.
- AEP spent the last decade recovering the 2nd Amendment’s lost meaning and developing a cure for Heller, upending conventional wisdom that neither could be done.
“Constitutional wrongs do not right themselves” (Justice Ketanji Brown Jackson). AEP is dedicated to ending America’s gun crisis by refocusing the courts and debate on Heller and the real 2nd Amendment:
- Bringing impact litigation to challenge and overturn Heller in the courts, who created this crisis and must end it
- Reinstating legislative ability to enact reforms, upon policy choices legislatures, not courts, are suited to make
- Educating the public, politicians, and other GVP organizations about the Heller’s dangerous effects and the actual 2nd Amendment, which has nothing to do with a personal right
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