In a timely article, “A Right To Carry Everywhere, On A Road To Nowhere” (Law360 Aug. 10, 2018), Robert W. Ludwig, counsel to the American Enlightenment Project, points out that “to end the senseless Gun Epidemic, it’s past time to turn a spotlight on its root cause: legal carelessness and oversights of text even nonlawyers can’t miss.”

After a 5-4 Supreme Court in D.C. v. Heller (2008) found for the first time in 200 years a Second Amendment right to possess a gun, extended to the states in McDonald v. Chicago (2010), proliferation and deaths skyrocketed, creating by 2015 a declared Gun Epidemic. “Thanks to two court decisions,” Mr. Ludwig writes, “the nation has become an abattoir of worsening handgun violence, daily mass shootings and weekly school shootings, triggering a March for Our Lives.”

“Celebrated as a ‘vindication’ of ‘textual originalism’ by the late Justice Antonin Scalia, Heller is more a testament to the folly of legal word-play, and how that superficial dictionary-based doctrine is no substitute for understanding essential to judging.”

“Most glaringly,” Mr. Ludwig points out, “Heller never addressed the meaning of the last clause and verb on which the amendment rests.” Instead, Justice Scalia transposed “shall not be infringed” to “abridged,” though not synonyms, like changing “shall not kill” to “maim.” “Abridge, a forgotten term of art, was used in the First Amendment and every amendment since that protects individual rights. Infringe, another term of art, was used in its classic sense to protect state sovereignty.”

Overlooking pivotal text is “probably the strongest reason for not following a decision,” the California Supreme Court said in 2015 when correcting a 140-year oversight “‘announced in ignorance’” of an 1872 statute, “a remarkable failure of the adversary system,” like Heller. Noting “It is better that wisdom, or at least controlling authority, come to our attention late, rather than not at all,” the court held that because “the relevant language and history” was not applied, its prior case “cannot stand.” Likewise, notes Mr. Ludwig, “having not construed the full text, among many things in plain sight, there is no legal way Heller can stand.”

Yet three weeks ago, Heller’s right to “handgun possession” and “to carry it in the home,” its odd precise holding, was extended to public carry by a 2-1 Ninth Circuit panel in Young v. Hawaii, applying mostly textualism to reason that “keep” arms “necessarily implies a right to carry those arms to some extent,” and “bear” arms “should protect something more than carrying incidental to keeping arms,” ergo “some level of carrying” for “conflict outside the home.”

Meanwhile, the Senate considers the nomination of Judge Brett Kavanaugh, the dissent on a 2-1 D.C. Circuit panel that upheld a ban on assault weapons like the AR-15s used in school massacres. Judge Kavanaugh read Heller’s “text” to mean, since “the vast majority of handguns are semi-automatic” and there’s “no meaningful constitutional distinction between semi-automatic handguns and semi-automatic rifles,” it “follows” AR-15s are protected as “the most popular semi-automatic rifle.”

“Expanding Heller and its epidemic to public carry as textualist courts insist,” Mr. Ludwig observes, “can only make more commonplace a mom pulling a gun over that last back-to-school item as went viral last August, or the customer shot dead over a parking space two weeks ago in Florida: practical results of mixing everyday grievances with ready guns. More dystopian still would be a textualist Kavanaugh court that allows everyone who wants one an AR-15.”

“Much of the problem,” Mr. Ludwig writes, is “lawyers and judges do not understand rudimentary founding history and concepts, even those still applied today.” For example: “They blithely assume ‘infringe’ protects a private right, as in ‘patent infringement.’ That, like all easy assumptions about the amendment, would be wrong.” The authority? Heller’s staunchest defender, Justice Clarence Thomas, who wrote in April for a near-unanimous Supreme Court: “This Court has long recognized the grant of a patent is a ‘matter involving public rights’” or “public franchises,” not “private rights.”

Mr. Ludwig concludes: “Heller’s blunders are not only a serious legal and public safety problem, but an institutional one. The Court’s authority depends on public confidence, which is lost when it misses something as simple as constitutional text and leaves it uncorrected.” And “should the Ninth Circuit reconsider Young en banc,” one question should be “whether Heller prevents deciding the full Second Amendment, which plainly has nothing to do with an individual right.”

In the third and final segment of his article, “Heller Sequels and 2^nd Amendment, Still Undecided: Part 3” (Law 360 Aug. 24, 2017) Mr. Ludwig concludes that “Heller, not having decided the full text, has no binding effect. Its partial constructs are so untenable and unsupported, little remains of its implied right(s), that Seventh Circuit Judge Richard Posner scorned as a ‘snow job’ and Chief Justice Warren Burger earlier called a ‘fraud.’”  Mr. Ludwig raises “the pernicious consequences of allowing Heller’s oversights, guesswork, and dicta, and not the people’s legislatures, to determine gun policy, leading to an ‘epidemic’ of gun proliferation and violence.”

Mr. Ludwig shows that Heller, based on a series of “mass oversights,” is only a “partial construction of the prefatory and rights clauses, out of context, without construing the prohibitory clause.” And in “overturning 200 years of understanding, it cited remarkably little or no support in implying each of the component individual rights in announced: (1) to ‘handgun possession’ and to ‘carry it in the home,’ (2) to resist tyrannical government, and (3) to ‘lawful weapons … possessed in the home.’” Mr. Ludwig then illustrates how “its lack of support is apparent in its literal definitions, empty assertions, and conclusory analyses of the relation between the clauses it did construe.”

In implying its oddly-worded right to “handgun possession” and to “carry it in the home,” the Heller Court, in an “epic oversight,” “purported to decide” the amendment “without considering its full text. That is remarkable, especially for Justice Scalia and other court textualists. But for any judge to decide, or lawyer to advocate, the Constitution without addressing its full wording borders on malpractice.” Justice Scalia’s “own treatise states: ‘every word and every provision is to be given effect. None should be ignored,’—one of many such canons not followed in Heller, which simply wrote off the last provision of the Second Amendment. Or out of the Constitution, and with it, a clear exegesis of the ‘baffling’ amendment.”

“Almost as surprising is the failure by the court, lawyers and academy to connect constitutional dots: to recognize that ‘infringed’ and ‘abridged,’” which Heller impermissibly transposed, “are terms of art, one protecting sovereign and the other individual rights.”

So too is Heller’s perpetuation of the notion of a right to guns “as a check on tyranny, the pernicious pablum of the National Rifle Association and other gun groups,” which has persisted too long. “Presented an opportunity to put this dangerous distraction to rest, the majority, needing some rationale to explain how the preamble fit its implied right, endorsed it.” Predictably since, “there have been almost weekly ‘incidents of insurrectionist violence (or the promotion of such violence),’ as catalogued by the Coalition to Stop Gun Violence on its ‘Insurrectionism Timeline.’”

The “great lesson” that a “constitutional republic ‘leaves no room for insurrection’” (cited by Thomas Paine and later Abraham Lincoln), “and the corresponding ‘axiom of our political system’” that federal and state governments ensure constitutional order in each other (as explained by Alexander Hamilton and James Madison), “both seem to have been lost on the court. Heller undermines the former by perpetuating insurrectionist myth,” and “defeats the latter” by “tossing federalism and the existential right of states to arm militia, preserved by the Second Amendment, ‘overboard like tea.’”

“It is also astonishing the court cited as its sole authority—in declaring ‘hundreds of judges’ ‘overread’” its unanimous” decision in U.S. v. Miller (1939) “that ‘arms’ meant ‘military equipment’—a single billy-club case (citing a bladed-weapons encyclopedia) to hold militiamen could bring any ‘lawful weapons that they possessed at home to militia duty.’ That 1980 case and flimsy historical evidence, which the majority underread, if read at all, was the linchpin for its blockbuster right.” Just as astounding, the fact “that lawyers and judges are still not even reading a key case from 1980 and verifying its citations” indicates “they are not doing likewise for the founding record from the 1780s.”

With its “stunning” oversights, Heller, “far from a ‘mighty rock’” as Justice Scalia dismissed the court’s last unanimous decision, rests itself “on sand,” and “settled nothing at all.” Its “own conclusion that its construction no longer (if ever) served the object of preserving state militia, when another did and does, only confirms the impropriety of its implied right.”

And these, as Mr. Ludwig notes, “are just some of the mass oversights that have led to Heller purporting to decide the Second Amendment by implication and guesswork, while taking legislative policy choices off the table.”

“Paying the price of epic legal oversights and miscalculation,” contributing to “an epidemic of gun proliferation and violence, are scores of Americans with their lives each day. Hundreds more are physically or psychologically wounded, their families and communities with them, having economic consequences not only for dependents, but police and health services left to deal with the carnage. Or police themselves become part of the carnage, or add to it when shooting unarmed citizens, fearful of shadows (as Gen. Washington described militiamen), in attempting to serve communities awash in guns.”

Since Heller, particularly after McDonald v. Chicago (2010) expanded its holding against the states, “guns exploded past the population for the first time, to 357 million as of 2013 data. Experiencing now an ‘epidemic of gun violence’ decried in historic 2015 and 2016 front-page and presidential op-eds, which has since grown worse, 36,000 Americans die every year from guns, or over 90 each day, one every 15 minutes.”

The three-part article concludes: “As reminded by Justice Breyer, ‘we’re human, and when it’s 5-4, obviously somebody’s wrong.’ Justice Scalia, who counseled judicial ‘self-abnegation’ in divining original intent, issued his own mea culpa in 2015 about a case of ‘judge-invented doctrine’ and ‘mess that I helped make,’ stating ‘its error has grown more glaringly obvious’ and ‘stare decisis does not recommend its retention.’ Given ‘glaringly obvious’ error in overlooking constitutional text, among other things, it’s time for the courts to apply that candor to the ill-starred Heller.”

This blog is excerpted from Robert Ludwig’s article, © 2017 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.

Mr. Ludwig suggests that, while “overlooking the full text and other things,” as demonstrated in Part 1 and in his previous article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law 360 Jan. 11, 2016), “academics and the courts have been unable to explain something nearly as obvious: what the states demanded they got from its drafter James Madison and the First Congress.”

At the 1788 Virginia ratifying convention, Col. George Mason “drafted, and the Virginia convention proposed, both a declarative amendment (‘That the people have a right to keep & to bear arms; that a well regulated Militia, composed of the body of the people, trained to arms, is the proper natural and safe defense of a free State’) and a corresponding structural amendment (‘That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.’)”

Mr. Ludwig shows how “Rep. Madison, denied a Senate seat and narrowly elected to the First Congress on the promise he would introduce amendments,” ignored any structural amendment that would alter compromises just struck at the Constitutional Convention, submitting a draft that read: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” House and Senate “committees and stylists inverted the first and second clauses, changed ‘country’; to ‘State,’ eliminated the conscientious-objector clause, dropped ‘well armed’ as redundant and tightened language,” resulting in the Second Amendment.

But, Mr. Ludwig asks, “Why were the generally expressed and extensively entertained fears of Mason and most Anti-Federalists (states’ rights advocates) quieted by the declaration alone, without the structural amendment? That question has never been answered.” The historical record that might explain the Second Amendment and the framers’ decisions, including to eliminate the structural amendment, was not published for decades after ratification, and modern anthologies on both sides of the gun debate, deemed authoritative, contain and perpetuate other mass oversights in addition to the overlooked text. And the record “that might explain the amendment, while more extensive than assumed, is not what might otherwise exist for a founding institution,” largely because “the militia system, a republican alternative to a despised standing army, began an early march to obscurity,” a month before the amendment was ratified in 1791. In “one of the country’s worst, forgotten military disasters, an Indian confederation (bearing British muskets) wiped out nearly a third of the nation’s forces” when “militiamen ran, leading to the first cabinet meeting by President Washington, congressional investigation, and creation of a standing army that became the U.S. Army.”

Yet, despite perceived gaps in the historical record, the framers’ intentions and the historical roots of the amendment are not as elusive as the courts and academy assume. A primary reason why the record has “baffled” academic and legal interpreters is that, as Mr. Ludwig shows, “rather than re-examine assumptions, questions asked, and worn paths through their (abridged) founding record, the general tendency has been to blame the record, or the framers themselves, otherwise regarded as unparalleled political theorists and stylists.”

Unable “to square the circles or mysteries of the amendment,” including how its (first two) clauses fit (overlooking its third), why Madison drafted it the way he did, and why it quieted generally expressed state fears over the right to arm their militia, many scholars like Michael Waldman of the NYU Brennan Center for Justice, conclude: “We cannot clearly know what the framers intended,” reflecting entrenched “received wisdom in academic circles.” “Actually, we can,” Mr. Ludwig writes, as he further begins to demonstrate in Part 2 of his textual and historical analysis of the amendment.

This blog is excerpted from Robert Ludwig’s article, © 2017 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.

In the first segment of his recently-published article, “Heller Sequels And 2nd Amendment, Still Undecided: Part 1” (Law 360 Jul. 20, 2017), Robert Ludwig offers insight into what little (to no) guidance has been provided by the Court over the past decade on how to interpret the “new right(s)” created by Heller. After a “string of denials of certiorari,” conservative Judge Harvie Wilkinson’s prediction in 2009 remains true today: “the ‘Heller majority seems to want to have its cake and eat it, too – to recognize a right to bear arms without having to deal with any of the more unpleasant consequences of such a right.’”

“Another unpleasant consequence of Heller,” Mr. Ludwig points out: “what really awaits decision is the full amendment.” As shown in his previous article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law 360 Jan. 11, 2016), “the Court has yet to address much less decide the full text, one of several major oversights, each showing the amendment has nothing to do with an individual right.”

The amendment reads: “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.” Heller “dismissed the preamble about state militias, previously enough for ‘hundreds of judges,’ to focus on the ‘operative’ middle clause ‘to keep and bear Arms,’ and rejecting the military argot of the militia era, found an implied right to self-defense. Heller never addressed the last clause—the actual prohibition and verb on which the amendment rests.

Mr. Ludwig illustrates how the notion of a guarantee espoused by the Heller majority, which conservative Chief Justice Warren Burger had called a “fraud” just the decade before, is unsupported even by the text it addressed, and resulted from “implication and guesswork.” “‘Knowledge is essential to understanding; and understanding should precede judging,’ warned Justice Louis Brandeis.” Yet the Court, “in its most consequential decision for American lives today that took ‘seriously the concerns’ over ‘the problems of handgun violence in this country,’ in finding the ‘enshrinement of constitutional rights’ take ‘certain [legislative] policy choices off the table,’ guessed.”

This conjecture has been branded by Judge Wilkinson as “‘judicial lawmaking’ and ‘activism’ that ‘created a new blockbuster right’ complete with ‘embedded’ exceptions, ‘not apparent to the Court for over two centuries,’” and derided by conservative Judge Richard Posner “as ‘faux originalism’ and ‘law office history.’” The latter went further, “noting the author of Heller, Justice Antonin ‘Scalia and his staff labored mightily to produce a long opinion’ that ‘would convince, or perhaps just overwhelm, doubters. The range of historical references … is breathtaking, but it is not evidence of disinterested historical inquiry; it is evidence of the ability of well-staffed courts to produce snow jobs.’”

The “majority’s conjecture was evident in implying a right. It reasoned: ‘The very text,’” or the two-thirds it addressed, “‘implicitly recognizes the pre-existence of the right,’ which it defined as the ‘individual right to possess and carry weapons in case of confrontation,’ a questionable statement even at common law, and ‘novel’ variant that ‘lacks support in the text’ as Justice Stevens said in dissent. ‘No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth.’” “For the majority to imply a private right ignores not only the warning of Brandeis, but also of Chief Justice John Marshall that if such were the intent, the framers would ‘have expressed’ it, ‘in plain and intelligible language.’ And to imply the unstated disregards his further admonition: when amendments proposed in the states and Congress carried no ‘sentiment … generally expressed, to quiet fears thus extensively entertained,’ as true of the personal use of guns, ‘This court cannot so apply them.’”

The Heller dissents “were also guesswork,” Justice Stevens writing “surely [the amendment] protects a right that can be enforced by individuals,” with Justice Breyer clarifying “it ‘protects militia-related, not self-defense-related, interests,’ to ‘assure 18th-century citizens that they could keep arms for militia purposes,’ not ‘keep arms that they could have used for self-defense as well,’ which ‘is not the Amendment’s concern.’” But, as Mr. Ludwig notes, “‘surely’ is conjecture, and militia service was required by law, not a right.” And, “in positing an individual right,” Mr. Ludwig shows how “the dissents gave the majority carte blanche to find one, too.”

Lacking guidance from legal academics who consider the amendment “baffling,” it remains confounding to “the courts and legislators that rely on them because – like the Heller majority, dissents, parties and over 60 amici, influenced by two centuries of myopic focus on the prefatory and rights clauses – no one ever considered the significance of the final clause, or other mass oversights.”

This blog is excerpted from Robert Ludwig’s article, © 2017 All rights reserved. For further information, contact Mr. Ludwig at rludwig@ludwigrobinson.com or 202-289-7603.