JUSTICE BARRETT: I have one. Do you think Heller was rightly decided? — Oral argument, N.Y.S. Rifle & Pistol Ass’n v. Bruen (Nov. 3, 2021)

The Supreme Court last month paused review of whether the Second Amendment protects assault-style rifles, awaiting more circuit decisions expected next term. This article discusses how increasingly fraught issues under District of Columbia v. Heller—a presumed landmark decision but an “embarrassment” and “warped” even to gun-rights scholars, whose flawed guesswork and reasoning got virtually everything wrong in triggering today’s gun crisis—should force a course change, not only by the court, but both sides of the gun debate.

At oral argument in Bruen, the last blockbuster gun decision, Justice Stephen Breyer questioned whether a right of public carry would allow anyone to ride around with a pistol “just for fun.” But as Justice Clarence Thomas had scoffed, it was “improbable the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”¹ That odd phrasing refers to the original blockbuster, District of Columbia v. Heller in 2008, a 5-4 decision by Justice Antonin Scalia, that, for the first time, held the people’s right to keep and bear arms implied a right of self-defense to “possess” a handgun and “carry it in the home.”² With the Supreme Court having paused its next blockbuster—joyriding with AR-15s—a better question, the only one asked by Justice Amy Coney Barrett, is whether Heller was rightly decided.

Last month, the court declined to review AR-15 issues, leaving in place for now Maryland’s ban on assault rifles and Rhode Island’s on large magazines. Signaling there were not yet five votes to reverse, Justice Brett Kavanaugh in the Maryland case, Snope v. Brown, cited cases percolating in other circuits that “should assist the Court’s decisionmaking,” which “presumably will address the issue soon.”³ He cautioned against assuming the court agreed with the Fourth Circuit decision upholding Maryland’s ban, calling it “questionable” given AR-15s’ wide acceptance as “‘lawful possessions’” and Heller’s “historically based ‘common use’ test.”

Justices Thomas, Samuel Alito, and Neil Gorsuch would have granted review. Thomas wrote it was “difficult to see” how a ban survives Heller’s test, stating “I would not wait to decide whether the government can ban the most popular rifle in America.”⁴ He added that review is even “more urgent” after a decision allowing regulation of ghost gun kits, with AR-15s now one “coat hanger” away from being converted to machine guns and prohibited by federal law. Relatedly, a unanimous court by Justice Elena Kagan, finding liability for Mexican gun violence mis-pled, cited AR-15s as the “most popular rifle” and “widely legal,” echoing Kavanaugh and Thomas.⁵

But in a more apt decision, Thomas, noting “judge-made doctrines” tend to distort and confuse, invited review of a “framework that lacks any basis in text and proved difficult to apply.”⁶ That echoed Scalia, who had urged that a “judge-invented doctrine” and “mess I helped make” be overruled, its error “glaringly obvious.”⁷ Difficulty applying Heller’s inventions doubtless explains the court’s sidestep, as increasingly fraught issues force a reckoning with its glaring errors. Properly argued, they can result only in a blockbuster returning the amendment to its real meaning, before Heller created today’s gun crisis.

A justice’s pressing question

Heller’s validity is a vital issue. Dissenting Justice John Paul Stevens, later decrying its contribution to “slaughter caused by the prevalence of guns,” warned Heller’s “radical change,” the “worst self-inflicted wound in Court history,” “desperately needs to be overturned.”⁸

Conservatives shortlisted for the court like J. Harvie Wilkinson, who wrote for the Fourth Circuit in Snope, assailed Heller’s “unprincipled activism” that “tossed overboard” federalism and the clause that “set the context in which the amendment was to be read.”⁹ Another, the Seventh Circuit’s Richard Posner, scorned its “faux originalism” and “snow job.”¹⁰ A nominee who could have changed its outcome, Robert Bork, said the amendment “guaranteed the right of states to form militia, not individuals to bear arms” as the National Rifle Association “is always arguing”—a notion former Chief Justice Warren Burger denounced as a “fraud.”¹¹

Even gun rights scholars criticized Scalia’s opinion. Nelson Lund, NRA-endowed professor at George Mason University’s Antonin Scalia Law School, wrote: “At crucial points, he simply issued ipse dixits unsupported by any historical evidence, and at other[s], misrepresented historical facts,” stating “Scalia invented” the common-use test. Lund derided key rationales as “so defective” and “transparently non-originalist,” that Heller “should be seen as an embarrassment to all those who signed the majority opinion.”¹²

Two years later, in McDonald v. Chicago, a split plurality expanded Heller nationwide, doubling down on its “flawed” history over Breyer’s dissent that it “misunderstood a key historical point.”¹³

Barrett’s question is notable coming from a former Scalia clerk, who assured at confirmation she would not be another Scalia and has displayed increasing independence from today’s supermajority. Rebutting Thomas in the last Second Amendment decision, U.S. v. Rahimi, Barrett disputed that “history and tradition” are substitutes for law. “As I have explained elsewhere,” she wrote, “evidence of ‘tradition’ unmoored from original meaning is not binding law” and “history may have little bearing,” citing her disapproval of Thomas’ non-“discriminating” use of history and notion that “history and tradition” settle a constitutional question, calling it “wrong twice over.”¹⁴

The short answer is: Heller was wrong, many times over. Mis-argued as individual rights that ignored existing law and the real meaning—the longtime state right—it should be an embarrassment for all involved.

Guesswork leaves the real Second Amendment invisible

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. — U.S. Const. amend. II

For 200 years, we Americans have struggled to understand our Second Amendment. Though it made perfect sense at founding—a different world transitioning from monarchial to popular sovereignty and militia to armies—scholars, mystified by its obsolete terminology, syntax, and seeming contradictions, call it “baffling,” insisting to claim otherwise is “blowing smoke.”¹⁵ In Heller, as the dissents noted, the majority “strained” to justify its “dramatic upheaval in the law.”¹⁶

Everyone has missed the legal forest for the historical trees. No one in Heller—justice, party, or six dozen amici—interpreting an amendment about militia and bearing arms, addressed the thousand-year Anglo-American militia system. “As old in America as each colony,” each had laws “to organize and discipline the colonists” in that system, which obligated them to bear arms in defense of the state.¹⁷ Despite unanimous recognition in 1939, in U.S. v. Miller, that “‘as in England, the militia system was based on the principle of the assize of arms’”—an 1181 English militia statute whose elements “‘appear in all the important enactments’”—no one, as Miller directed, “interpreted and applied the amendment with that end in view.”¹⁸

Nor did anyone consider the most important enactment—the Articles of Confederation—the first constitution that governed the amendment’s drafting and most of its terms. Or existing law, despite uniform 20th-century holdings, as one summarized, it was “solely to protect the right of the states to keep and maintain armed militia,” and preserved their right “to continue this practice.”¹⁹ Or even its full text, a failure so extraordinary it raises another question: whether Heller has binding effect.

Worse, all were guessing over a “dangerous freedom,” as described by Joyce Malcolm, the historian on which Heller relied, to possess “characteristically dangerous” firearms—designed for a “dangerous” purpose, “whose mere display instills fear in the average citizen,” as another unanimous court recognized—long known to “turn a quarrel into a bloody affray,” according to commentary Heller cited from 1832, already speculating over the amendment’s meaning.²⁰

Worse still, all guessed badly. Each side asked the court to choose between illusory individual rights—to serve in the militia or to self-defense—undebated at founding, contradicted by the age-old duty to serve and James Madison’s draft, and called absurd, respectively, by the majority and dissents.

The right of gun advocates—to possess and use firearms in self-defense—claimed as the “standard right model” in largely NRA-sponsored articles, ignored the militia system, organic law, and even key texts. For text they did address they cited little more than dictionaries, and what Georgetown law professor Randy Barnett and others extolled as “the definitive historical treatise on the right to arms,” by Malcolm, another NRA-funded professor at the Scalia Law School and an “inner circle” proponent of the self-defense model—deplored by Burger as the “fraud.”²¹

Control advocates’ right—to-serve in militia, a “sophisticated collective right” theory “popular among historians” today,²² that also ignored the militia system and key text, had even less support. Conceived as a “civic right” like jury service, as then-Judge Barrett noted, citing historian Saul Cornell,²³ there is no right to serve on a jury, only a “duty, honor, and privilege” as the court has held, subject to selection.²⁴ D.C.’s argument in Heller that the right was “invocable in court” ignored a militia decision rejecting civil suits as “subversive of all discipline.”²⁵ The theory recast the long-ingrained duty to serve—subject to fines, imprisonment, even “lopping off of limbs”—as a farcical “right to a gun…to fulfill the duty to serve.”²⁶ Confusing the courts or themselves, collective right theorists, wandering outside of constitutional channels, make the “great error” of assuming the people collectively can be anything less than “the body politic called the state.”²⁷

Deriding each other’s right but offering little evidence for their own, each constructed narratives upon “snippets” torn from the founding record, as historian Jack Rakove said of “individual right theory,” explaining in a Heller historians’ brief the “academic controversy has been forced to squeeze so much interpretive blood from so few evidentiary turnips.”²⁸ Unsurprisingly, each hollow narrative was, to use today’s idiom, “coherent nonsense” that sounds authoritative but derives from low-quality, incomplete, or inaccurate content.

The Heller majority dismissed the right to serve, an “odd outlier” based on “little more than overreading the prefatory clause,” as “a right to be a soldier—an absurdity.” Presented no other option, Scalia defaulted to the right of self-defense—the “fraud.” Straining to prove it, he implied, largely from dictionaries, an “ancient right” to arms—“unconnected” to militia service—to protect “citizens’ militia”—individuals—and civilian firearms—not “most useful in military service”²⁹—turning the militia system and amendment on their head.

Stevens, later deriding the majority’s right as “really quite absurd,” could pay only lip service to the right to serve, writing, “Surely the Amendment protects a right that can be enforced by individuals,” unable to support it. But he added, it “was designed to protect the right of the States to maintain a well-regulated militia,” reiterating in McDonald, “It was the States on whose behalf the Amendment was adopted” that served “the structural function of protecting them from encroachment by an overreaching Federal Government”—not attempting to prove it.³⁰

Apart from passing references, the actual state right, under which control advocates never lost on appeal last century—when there was no gun epidemic—has all but disappeared.

Turning a gun problem into an epidemic of gun violence and civil disorder

This is serious business. We do not wish to be minutely responsible for some unspeakably tragic act of mayhem because in the peace of our chambers we miscalculated as to Second Amendment rights. — U.S. v. Masciandaro (4th Cir. 2011) (Wilkinson, J.)

For those of us in marbled halls, guarded by a dedicated police force, the guarantees might seem antiquated…. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. — Peruta v. California (2017) (Thomas, J., joined by Gorsuch, J., dissenting)

Aware of what it called the “problem of handgun violence” the Heller majority held its dangerous right “takes policy choices off the table,”³¹ curtailing the first responsibility of government to protect public safety. After McDonald extended Heller nationwide, gun proliferation and deaths surged in tandem, turning a “problem” into a declared “Gun Epidemic” by 2015, and, with Bruen’s extension to public carry, a “Public Health Crisis” last June.³²

Guaranteeing all “law-abiding citizens” a gun—disregarding that “‘Most murders are committed by law-abiding citizens in spontaneous violence generated by anger, passion or intoxication’” as Breyer warned³³—Heller effectively turned citizens with poor impulse control into criminals, and their homes, schools, and communities into killing fields.

As thousands of lower courts struggled to apply its new right, Heller turned the court itself into what observers call a “National Review Board,” or “Death Panel” deciding “‘who is disposable and who is not.’” And it turned Americans, making split-second decisions or trigger-happy, into judge and jury, their common law right of self-defense with limits on deadly force, a freedom to use a gun whenever they “perceive a threat.”³⁴

Heller’s inventions threaten not just public safety, but civil order. Its endorsement of “citizens’ militia” to resist tyranny when “order broke down”³⁵ inspired a doubling of private militia—Three Percenters (2008), Oath Keepers (2009), Boogaloo Boys (2012), Proud Boys (2016)—and threats of political violence, including at Charlottesville, Lansing, even the U.S. Capitol. Last month, the day Minnesota legislators and spouses were shot, media reported a Proud Boys chapter’s meme: “Shoot a couple, the rest will go home,” and a tutorial in advance of nationwide protests captioned: “Riot season again.”³⁶ A recent poll indicates a quarter of Americans now believe “true patriots may have to resort to violence to save our country.”³⁷

Similarly, threats against judges “tripled the past decade,” as reported yearend by Chief Justice John Roberts, prompting the creation of “Supreme Court Police”—the “dedicated police force” (U.S. marshals) Thomas touted as recently as 2017 no longer sufficient.³⁸ In its report the court blamed the “epidemic of misinformation,” not the gun epidemic, seemingly unaware how Heller’s inventions are jeopardizing public safety and its own.

Even before Heller’s pending extension to AR-15s, the consequences in gun violence and mass shootings, as recounted by Wilkinson in Snope, have been “horrific.”³⁹

Joyriding with AR-15s: a foregone result unless Heller is overruled

We add to the ever-growing chorus of courts that have implored the High Court to answer many questions Bruen left unresolved—or even reconsider its path entirely. Our Nation is gripped by deadly gun violence our founders never could have conceived, and, respectfully, some of the Court’s actions have done little to quell the legitimate fears of “the people.” … We cannot help but wonder (and fear, really): What’s next? — Barris v. Stroud Twp. (Pa. 2024)

After the court’s decade-long reluctance to revisit Heller, the supermajority began actively reviewing gun laws and presumptive exceptions it left for later decision. The first to fall were public carry restrictions in Bruen, a 6-3 opinion by Thomas, emphasizing the amendment is not “‘a second-class right.’”⁴⁰ In Snope, the court was poised to revisit another exception and decide whether weapons “most useful in military service—M-16 rifles and the like—may be banned.”⁴¹

At issue was not the amendment’s text or stated purpose, but rather Heller’s inventions. In particular, its fiction that the amendment protects not weapons of war but civilian firearms in “common use”—a test, Lund noted, Scalia “conjured from misreadings of history and precedent” and “invented to justify bans on machine guns and short-barreled shotguns.”⁴²

The Fourth Circuit en banc split three ways. A 9-1-5 majority, by Wilkinson, reaffirmed its prior decision upholding Maryland’s ban under Heller’s exception, finding AR-15s are, “in essence, military-style weapons designed for combat operations that are disproportionate to self-defense.” An Army veteran, Wilkinson detailed their destructive force—“‘organs shattered,’ bones ‘exploded,’ and ‘soft tissue absolutely destroyed’”—like their military M-16 counterpart, identical apart from its automatic mode. He read Heller and Bruen to protect weapons “‘in common use today for self-defense’” and not “‘dangerous and unusual’”—not all bearable weapons, which would lead to “absurd consequences” like civilian machine guns. One concurring judge read them to protect all bearable arms, including weapons of war, but not AR-15s as “dangerous and unusual.” Five dissenting judges, dismissing that AR-15s are particularly dangerous as “fearmongering,” maintained all bearable arms are protected if in “common use” for lawful purposes under Heller’s test.⁴³ Other circuits are similarly divided.

Several justices consider Heller’s “invented” test dispositive. Alito, joined by Thomas in Caetano v. Massachusetts, held “relative dangerousness…irrelevant” to weapons “commonly used for lawful purposes.”⁴⁴ And then-Judge Kavanaugh questioned why, if semi-automatic handguns are protected under Heller’s test, it would not protect America’s most “popular semi-automatic rifle,” concluding there is “no meaningful constitutional distinction.”⁴⁵

Raising the stakes, the Trump administration recently overturned a Bureau of Alcohol, Tobacco, Firearms classification of “forced reset triggers” as machine guns, making them now legal.⁴⁶ Two federal decisions, applying Heller and Bruen, have held machine guns to be protected bearable arms.⁴⁷ And in Snope, Thomas disparaged Wilkinson’s concern over “absurd consequences,” stating: “Our Constitution allows the American people—not the government—to decide which weapons are useful for self-defense”—not at the ballot box, but through gun sales.

Absent a serious challenge to Heller, the court almost certainly will extend Heller to AR-15-style rifles, now owned by 25 million Americans and comprising one-fourth of all firearm sales.⁴⁸ Despite the supermajority by Kavanaugh citing concerns over “potential risks and side effects” to children in upholding a puberty blocker ban,⁴⁹most appear to have no concerns over how often AR-15s are actually used to obliterate them, like 20 first-graders at Sandy Hook Elementary, that prompted the Maryland ban in Snope.⁵⁰ Or the 19 fourth-graders at Robb Elementary, where 400 police waited 77 minutes, fearful of the shooter’s AR-15 “battle rifle.”⁵¹ Allowing Americans to joyride with AR-15s would make Heller’s already horrific consequences unimaginably worse.

Meanwhile, both sides still peddle poppycock. Rights supporters assert the “fraud,” even as Heller fictions exposed by AR-15 issues give a few buyer's remorse. Lund long criticized Heller’s doctrine that “citizens’ militia” cannot use military weapons, as “making no sense.”⁵² Last year Robert Leider, a Scalia Law School colleague, noting Scalia’s “divorce of the amendment from the militia is warping legal doctrine,” wrote AR-15 bans violate the amendment “because they eviscerate the core of the right to keep and bear arms for military purposes,” i.e. “to perform temporary military service and engage in public defense.”⁵³ Reworking the majority’s “core lawful purpose of self-defense,”⁵⁴ Leider conjoined it to the dissent’s right to arms for militia service—a farrago of individual rights each had found absurd.

Control advocates persist with their “absurdity,” blind to its futility and the consequences of having no credible alternative in Heller, and of pressing a distraction that delayed focus on the real right for decades. In Bruen, a few amici, finally challenging Heller, simply restated the empty right to serve, still without support. In Rahimi, scholar Carl Bogus and others, with Jon Lowy, former Brady chief counsel and counsel in the Mexico case, repeated in passing that right “to participate,” but added the amendment “was solely concerned with protecting state authority from federal infringement”—a farrago of individual and sovereign rights.⁵⁵

It cannot be both. Only one is not absurd, provable, and the real right.

Skimming the law: assuming away text, rules, and the state right

The fault lies not with the legal, but with the scholarly community. For if the crux of the controversy is the construction of the Second Amendment, the key to that construction is …the English Bill of Rights from which much of the American Bill of Rights was drawn. — Joyce Malcolm, The Right of the People to Keep and Bear Arms (1983)

Four decades after Malcolm’s pronouncement, scholars are no closer to explaining the English Bill of Rights—another mystery—much less the amendment, which Malcolm described as “wholesale confusion.”⁵⁶ In McDonald, Breyer noted “historians now tell us Heller misunderstood a key historical point” in finding an ancient right to arms, disputing Malcolm “8 to 1.”⁵⁷ Not construing either enactment, all nine historians were wrong.

“Have arms” (English Bill of Rights, 1689). Malcolm, contradicting Heller, conceded there was no “ancient” right to arms, only a duty from “time out of mind” to bear arms for the state, and that the English declaration was expressly a “reaffirmation of existing rights.”⁵⁸

But Malcolm speculated that its phrase, Protestants may have arms, “seems to have,” “very likely” created a new right nonetheless, though it “seems empty rhetoric” given militia and game laws, and is “no longer a right of Englishmen,” “so gently teased from use most Britons have no notion of when it came to be withdrawn.” A few years afterwards, a rider to the Game Act of 1693 “to enable every Protestant to keep a musket in his House for his defence,” opposed as “arm[ing] the mob” and “not very safe for any government,” was soundly defeated 169 to 65. Yet Malcolm claimed this rhetorical, rejected, and vanished English right was adopted a century later in the amendment.⁵⁹

This rank guesswork is what rights advocates advance as “definitive,” Scalia declared “excellent,” and Thomas cited for its “impressive array of historical evidence.”⁶⁰

Opposing historians offered their own nonsense: a dual right of individuals “to possess arms to take part in defending the realm” and of Parliament to resist “should the sovereign usurp the laws.” Or as Breyer summarized: “the right of the people ‘to take part in the militia to defend their political liberties,’ and to the right of Parliament (which represented the people) to raise a militia even when the King sought to deny it that power.”⁶¹

While Malcolm claimed the “key to construing” the amendment is the English declaration’s right to arms—“gently” withdrawn, unconstrued by any English court—that she purported to “construe” three centuries later, its meaning has never been clearly and finally established because no scholar or court ever applied rules of construction to unlock its mystery.

The futility of understanding both enactments is due to thinking that historians should construe law. Scalia fueled the notion—saying it’s “exceedingly difficult to plumb the original understanding of an ancient text,” a “task sometimes better suited to the historian than the lawyer”—and today’s discord among Barrett, Thomas, and others over whether law or history matters most.⁶² Lawyers and judges, awed by a founding record Scalia called “enormous,” defer to freewheeling opinions of historical “experts,” unsupported by rules it is a lawyer’s “business to know,” as Oliver Wendell Holmes said, advising they also study history.⁶³ To a surprising degree, gun law is being determined by those who George Wythe, the first professor of “Law and Police” (Government), who taught Thomas Jefferson and Chief Justice John Marshall, deplored as “mere skimmers of the law.”⁶⁴

Applying ordinary construction, the English declaration on its face asserts grievances against the deposed Catholic James II for “extirpat[ing] the Protestant religion and laws and liberties of this kingdom,” and reasserts corresponding “ancient rights and liberties” against the incoming Protestant William I. The first military grievance (“keeping a standing army…without consent of Parliament”), and remedy (“unless it be with consent of Parliament, is against law”), plainly restored a parliamentary right over armies. The next (“causing good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law”), and remedy (“subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”)—superficially assumed to be a personal right—plainly restored Parliament’s right over militia.

As Justice Holmes reminded lawyers, meaning is found “not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.”⁶⁵ The grievance—Catholics armed and employed contrary to law—means armed and essentially, in modern parlance, deployed, as used throughout Anglo-American militia laws, even the Constitution.⁶⁶ It referred to James I’s employment of Catholics in the militia at a time when many were barred by law. The remedy—Protestants (90-98% of the population)⁶⁷ may have arms (common usage in 17th-century militia acts)—restored Parliament’s right to regulate militia. The phrase suitable to their conditions and as allowed by law (also from militia acts)⁶⁸, reinforced that meaning. Even Malcolm recognized: “For generations, citizens had been required to contribute arms to the militia according to their condition, that is, their rank and income.”⁶⁹

Unmistakably, this war powers grievance and remedy reasserted Parliament’s right against the Crown, and Protestants’ duty, not right, under the militia system. Initial drafts to the same effect—It is necessary to the publick Safety that…Protestants, should provide and keep Arms for the common Defence: And that the Arms, which have been seized from them be restored⁷⁰—were fortified with requirements of suitability and parliamentary regulation. As should have been obvious, this was all part of the English conception, as historians otherwise recognized, of the “rights and powers” of “Parliamentary sovereignty that triumphed in the Glorious Revolution” and English Bill of Rights.⁷¹

Skimming law, Malcolm neither construed the grievance (employing Catholics), nor remedy (have arms). Her opinions—the “clear language” provides an individual right that “makes no mention whatsoever of the militia”—were doubly wrong. And in dismissing as “zeal” a legal analysis that “grafted a nonexistent militia clause onto the English right” (applying “historical context,” not legal construction), she masked her own.⁷²

Opposing historians, rightly concluding, as Breyer said, the right had “everything to do with the militia” and there was no “reason to believe the Framers had something different in mind,”⁷³ were wrong in conjuring a farrago of individual and sovereign rights (like Bogus and Lowy a decade later in Rahimi).

Deferring to their opinion, Breyer asked in McDonald: “If history alone matters, why would the Court not now reconsider Heller?” The plurality responded, nothing “persuades us to reopen” a question so “thoroughly explored,”⁷⁴i.e. the empty “right to participate” in militia—the “absurdity.”

“Keep and bear arms” (Second Amendment, 1791). Like the English arms provision, the amendment arose from a war powers dispute. The proposed Constitution—empowering Congress to “provide for organizing, arming, and disciplining Militia”—left the States’ right to arm militia implied, subject to federal tyranny should Congress not arm them. In ratification conventions exemplified by Virginia’s, Federalist leaders like Madison assured: “I cannot conceive that this Constitution, by giving the general government the power of arming the militia, takes it away from state governments.” Marshall, later chief justice, argued: “If Congress neglects our militia, we can arm them ourselves. Cannot [Virginia] put them into the hands of her militiamen?” But Antifederalists like Patrick Henry rejected assurances “states have the right of arming” militia, warning “implication will not save you, when a strong army” comes. “If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it?”

In Heller, all agreed the ratification debate concerned “the institution of the state militia,” but assumed it “found expression” in an unadopted “structural” amendment to allow States to organize, arm, and discipline their militia—not recognizing the Second Amendment had that purpose, too.⁷⁵

A generation later, with the institution fading, Justice Joseph Story speculated that the amendment “may not be thought to have any important bearing,” but “if it have, it confirms” “the States have authority to organize, arm, and discipline their own militia.” He cited the concurrence of one of my brethren,”⁷⁶ doubtless his mentor Marshall, who, with Madison, assured “If Congress neglects our militia, we can arm them”—the right Antifederalists demanded and the amendment confirmed.

Heller rewrote the Second Amendment into constitutional artifice

Historical claims based on conjecture are nothing more than historical fiction. One historical fiction can beget another, and another, to the point that myth consumes fact, particularly if it is given the imprimatur of this Court. — Amicus brief of Patrick Charles, NYSRPA v. Bruen, 20 (July 19, 2021)

The Heller court, asked to choose between historical fictions, gave its imprimatur to one. It never addressed the amendment’s real origins, purpose, or meaning.

Origins. No one addressed the amendment’s pertinent origins. Instead, Scalia declared its “predecessor” and “central component” to be the “ancient” English right to arms for self-defense, that was “clearly an individual right” having “nothing to do with” militia.⁷⁷ But he never construed it, ignored Malcolm’s admission that it wasn’t ancient, and borrowed her guesswork, which was doubly wrong. Without its “central component,” Heller begins to unravel.

Purpose. Scalia recognized the amendment’s “prefatory clause announces the purpose for which the right was codified”—well regulated militia for the security of a free State—but held the clause “does not limit” the right, misciting rules for construing a detached “preamble” (like “We the people”), not a clause in the sentence. (Even Stevens mislabeled it a “preamble.”)⁷⁸ Scalia also did not to adhere to rules in his own treatise, Reading Law, that “the purpose of the text is a vital part of its context,” “a primary determinant of meaning,” and that meaning is found “‘in all the parts together and their relation to the end in view’”⁷⁹—the announced purpose. The court has held a similar preface to the Patent and Copyright Clause a “limitation” that “may not be ignored.”⁸⁰

Meaning. Not construing its “predecessor,” Heller never construed the amendment either, at least under ordinary rules. For example, no one compared it to the constitution that governed its drafting and supplied most terms—“copied almost verbatim” Scalia once said⁸¹—ignoring the rule that organic laws be read together. The Articles of Confederation preserved the States’ right to “keep” “well-regulated” “militia” in “arms,” as the “security of their Liberties,” and their “legislative right” (over internal affairs) not to be “infringed” by Congress. Madison warned, “it can never be supposed that when copied into this constitution, a different meaning ought to be attached” to wording taken from the original.⁸²

Further, though Scalia recognized “context is everything,” or as Barrett notes, “To strip a word from its context is to strip that word of its meaning,”⁸³ he never considered the militia system and its quintessential usages. Citing Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia, Scalia overread its discussion of “‘arms of defence and peace’”—against external and internal threats—as arms for personal defense and self-preservation.⁸⁴ He ignored its explanations of “the right of Englishmen to have arms” (that “the laws of England always required the people to be armed” under the militia system, with “proper arms for defence,” which “signifies arms, or instruments of war”), and of the system’s duty (“the obligation for every man to have arms…‘ACCORDING TO THE LAW OF ANCIENT TIMES,’” and “‘keep them always ready for defense of the kingdom’”), and individual right: to vote (“each freeman that bears arms was allowed his right of suffrage…, his share of legislative influence” to “regulate the service”)⁸⁵. Scalia also disregarded the main tract, entitled—much like the prefatory clause—“A General Militia, Acting by a Well-Regulated Rotation, Is the Only Safe Means of Defending a free People.” Even Malcolm recognized the Tracts appeared “inextricably bound to the institution of the militia.”⁸⁶ Recounting “ordinary,” “ancient usage confirmed by statutes,”⁸⁷ the Tracts’ usages—have arms, militia, well-regulated, keep, bear arms—all controvert, like the Articles, what Heller implied from dictionaries.

In addition, Scalia’s treatise warns “no interpretative fault is more common” than disregarding the “full text canon”—that “no word be rendered superfluous”⁸⁸—a common fault Scalia and everyone else repeated in Heller, never construing key terms: security, right, and infringed.

Ignoring more rules, the majority rewrote the rest into constitutional artifice:

• A well-regulated Militia. Scalia dismissed well-regulated in one sentence, writing it “implies nothing more than...discipline and training,” citing a dictionary.⁸⁹ But the Articles required that States “keep up a well-regulated and disciplined militia”—an organized and disciplined force. Equating “well-regulated” and “disciplined,” he reduced the first constitution to disciplined and disciplined militia, an impermissible imbecility.⁹⁰ Similarly, overreading Virginia’s constitution, he overlooked its “Act for regulating and disciplining the Militia,” and other state militia acts, reducing them to imbecility, too.
• Heller’s next glaring mistake was that militia meant “citizens’ militia”—individuals—not organized forces, citing nothing at all.⁹¹ That misnomer is not found in any reported decision until a 1980 Oregon case involving billy clubs, that misread authorities and conflated age-old concepts of “citizen soldiers” and “militia” into an oxymoron.⁹²

Citing no support for both fictions, Scalia adopted the “consensus” of rights advocates. According to Barnett, “‘in eighteenth century military usage, well regulated meant properly disciplined, not government controlled,’” but he quoted Lund, who cited an NRA advocate, who cited a dictionary.⁹³ All ignored the Articles’ usage, which forecloses equating “well regulated” and “disciplined,” and Madison’s further explanation that “regulation of the Militia naturally appertain[s] to the authority charged with the public defence.”⁹⁴ Alexander Hamilton, a former militia captain and aide to General George Washington, likewise explained: “If a well-regulated militia be the most natural defense of a free country,” it “ought certainly be under the regulation” of government, meaning, as “requires no skill in war to discern[,] uniformity in organization and discipline” for “the public defense.”⁹⁵ Pull on these two threads—“disciplined,” “citizens’ militia”—without which Scalia recognized a self-defense right “fits poorly,”⁹⁶Heller’s entire fabric unravels.

Another fiction, Heller’s “citizens’ militia as a safeguard against tyranny”—the oxymoron—if “constitutional order broke down,”⁹⁷ ignored the “axiom of our political system” that Hamilton also explained: “the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority,” not citizens in “their courage and despair.” Madison agreed the “subordinate governments” “would be able to repel the danger.” Jefferson, miscited by Heller, showed France lost republican government for lack of “provincial organizations,” unlike our “States rising in mass, under regular organization,” “obstacles to an usurper as forever to stifle ambition.”⁹⁸ The English jurist William Blackstone, misread by Heller for a “right of resistance,” repudiated as “over-zealous” the notion individuals had “the right of determining” when order is endangered as a “doctrine productive of anarchy.”⁹⁹ Influenced evidently by Heller’s irresponsible endorsement of myth, Oath Keepers’ founder Stewart Rhodes determined the 2020 election “unconstitutional” and called for “armed rebellion” and “bloody civil war,” while another asserted his “constitutionalist” right.¹⁰⁰

Heller’s constitutional artifices only get worse.

• Necessary to the security of a free State. Violating his own “surplusage canon” that “every word and every provision is to be given effect,” “none should be ignored,”¹⁰¹ Scalia and everyone else ignored the next term, security, its origins, idiomatic meaning, and why Madison substituted it for “defence.”
• Construing only free State, as a “free polity,” Scalia did not address the polity secured, determined by context, or the axiom of federalism Hamilton emphasized, that the States ensure “security against invasions of the public liberty by the national authority.”
• Right of the people. Nor did Scalia or anyone address the term right, or whether it referred to that of the States.
• Instead, reading right of the people mechanically with the First, Fourth, and Ninth Amendments, all assumed the Second connoted an individual right. But the “rights…retained by the people” in the Ninth—another mystery—have polysemous meanings that include state rights, as Bork and others have concluded.¹⁰² John Adams cautioned that the people is “a confusion of words and ideas,” as are the “people collectively…the States” as Madison explained, whose “true sense can be collected with certainty” from context.¹⁰³ The court often recognizes that “the same words, in different contexts, sometimes mean different things.”¹⁰⁴

Applying the “specific context,” Vermont’s Supreme Court has unanimously disavowed Heller’s reading of its constitution, finding the people meant in part a right “exercised by the body politic,” like “regulating the internal police.” But rather than find a state right as was obvious and Stevens also posited, it adopted his lip service to the collective right to serve—the “absurdity.”¹⁰⁵

Last year, the Pennsylvania Supreme Court in Barris, noting the “sizeable role” in Heller of its constitution (copied by Vermont), deferred decision on whether Heller properly found it “‘secured an individual right to bear arms for defensive purposes.’”¹⁰⁶

Hawaii’s Supreme Court, citing the “traditional interpretation” in 1950 when the amendment was copied into its constitution, held it “‘was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia’”—“what they were thinking about long ago, not someone packing a musket to the wigmaker just in case.”¹⁰⁷ But in criticizing Heller, originalism, and the “fuzzy ‘history and tradition’ test”—like Barrett—it conflated that state right with “a collective right to bear arms in service”—the “absurdity.”

• Keep and bear arms. Overlooking other terms of art, Heller rewrote keep and bear arms as “possess and carry weapons in case of confrontation,” citing largely dictionaries, stitching together three more fictions that Stevens derided as made “of whole cloth.”¹⁰⁸
• Addressing keep, Scalia dismissed militia acts that required militiamen to maintain specified arms, like Virginia’s (“constantly keep the aforesaid arms, ready to be produced whenever called”), as having “little occasion to use” the term “except in discussions about the militia”¹⁰⁹—the very context and “announced purpose” he found, that ordinary construction required be applied.
• Scalia claimed bear arms “unequivocally bore” a military meaning “only when followed by the preposition ‘against,’” citing a dictionary. He dismissed contrary examples in state constitutions (North Carolina: “bear Arms for the Defence of the State”; Massachusetts: “bear arms for the common defence”) and Madison’s draft (“no person religiously scrupulous of bearing arms, shall be compelled to render military service”), despite admitting another proposal (“bear arms in his stead”) “refers, by reason of context, to compulsory bearing of arms for military duty”¹¹⁰—the context of all. Dissenting Justice David Souter once described Scalia’s constructs as “the work of a gladiator, but he thrusts at lions of his own imagining,” “as blind to history as to precedent.”¹¹¹
• Scalia rewrote arms—and Miller’s reference to “ordinary military equipment” “in common use at the time” as founding laws “show plainly”¹¹²—as “weapons typically possessed by law-abiding citizens for lawful purposes.” Originalist Lund called Heller’s rewrite “bizarre,” having “zero historical support,” a “test Justice Scalia invented.”¹¹³Heller cited no support except to quote the billy club case for its notion militia and personal weapons were “‘one and the same,’” which miscited a swords encyclopedia that contradicts it.¹¹⁴

This “common use” fiction, used to overturn handgun bans in Heller and McDonald, and a stun gun ban in Caetano, is what Thomas, Alito, and Kavanaugh cite as dispositive of AR-15 bans.

• Shall not be infringed. Worst of all, Heller never construed the verb on which the amendment rests. Scalia, in passing, transposed infringed to “abridged,” though not even synonyms, and impermissible in constitutional construction.¹¹⁵Abridged was used in the First Amendment (the Senate correcting the House’s substitution of infringed), and all since that guarantee personal rights. Infringed was used in organic laws like the Articles (“the legislative right of any state...be not infringed”), to protect public rights. Correcting a related longtime misconception, a 7-2 court, by Thomas, reaffirmed patent infringement involves not a private but “public right”—still overlooking the significance of infringe.¹¹⁶

Heller is not just wrong many times over. Neglecting ordinary construction, laws, legal principles, and text, and distorting the text it did address, Heller got virtually everything wrong.

More remarkably, Heller can have no legal effect, since overlooking text is “probably the strongest reason for not following a decision,” as one high court said of a 140-year oversight, holding its decision “cannot stand.”¹¹⁷ Another held that its opinion, which did not “even consider the words...we now recognize to be pivotal,” has “nothing to contribute.”¹¹⁸

And in taking public safety measures “off the table,” in misplaced fidelity to an artifice—following Holmes’ dictum, “If my fellow citizens want to go to Hell,” it was his job to “help them”—Heller turned their Constitution into a “suicide pact” never intended at founding.¹¹⁹

Considered by Scalia a “legacy opinion” and “best example” of his textual originalism,¹²⁰Heller is a monument to that dictionary-centered methodology’s oversimplifications, superficial assumptions, and erosion of legal analysis.

Fraught AR-15 issues compel a reappraisal of Heller and both individual rights

In Kiowa, this Court expanded judge-invented doctrine…. I am now convinced Kiowa was wrongly decided; that its error…has grown more glaringly obvious; and… rather than insist Congress clean up a mess that I helped make, I would overrule [it]. — Michigan v. Bay Mills Indian Cmty. (2014) (Scalia, J., dissenting)

That candor remains to be applied to Heller, a far more serious mess. Heller and the warped debate have reduced the Constitution, whose example America had the “high honor” of giving the world,¹²¹ to coherent nonsense and “America’s shame”—what British media called its “obscene proliferation of guns” after yet another mass shooting.¹²²

Like the court’s past historic blunders, Heller “was wrong the day it was decided.”¹²³ And without even addressing the full text, much less its long interpretation, Heller decided nothing at all. The Second Amendment remains tabula rasa, its meaning undisturbed and undecided.

Barrett’s question of Heller’s validity is also undecided. It remains unbriefed since Bruen extended Heller’s inventions to joyriding with handguns, overturning 150 years of concealed and other carry bans. The prospect of Americans joyriding with AR-15s doubtless explains the pause in Snope, by Roberts and Barrett, as ever-more fraught issues percolate up. Another Fourth Circuit decision last month by Wilkinson, upholding restrictions on handgun sales to immature 18-20 year olds—legally “infants” at founding, today largely responsible for the leading cause of teen deaths—sets up a conflict with the Fifth Circuit and likely review next term.¹²⁴

Unlike Kiowa, involving a mess over statutory meaning Congress could clean up, Heller involves a constitutional issue only the court can resolve. And unlike Kiowa’s consequences, in jurisprudence that has “gotten worse over the years” as Thomas laments,¹²⁵Heller’s consequences will be more carnage and mayhem.

Underlying this mess is the debate over whether law, or 'history and tradition' matter more. It has intensified since Heller took “an originalist approach,” as Barrett noted, described in McDonald as “history alone” by Breyer, and by Stevens as picking one’s friends out of history’s crowd.¹²⁶ The current liberal justices all joined Barrett’s criticism of “history and tradition” as “wrong twice over,” with Justice Sonja Sotomayor adding the “back-and-forth highlights the indeterminacy of the court’s history-and-tradition inquiry,” later decrying the “myopic focus on history and tradition” in today’s gun jurisprudence.¹²⁷ As Stevens summarized, quoting Justice William Brennan, “Scalia remains ‘oblivious that [tradition] can be as malleable and as elusive as liberty itself.’”¹²⁸ Nothing is as malleable as “the public understanding of a legal text”—the originalist standard Scalia emphasized,¹²⁹ never identifying the “public,” as divided then as today—and as elusive as when that interpretative method ignores, inter alia, founding laws that defined it.

The tendency to construe the amendment through history, not law or legal principles, has stymied its resolution for centuries, just like the English declaration. A seminal treatise often cited by the court, Benjamin Schwartz, The Bill of Rights: A Documentary History, noting that “one must know something” of the history of that declaration, asserts—without construction—it provided a “rudimentary statement of the right to bear arms” and “model” for the amendment.¹³⁰ Scalia echoed that approach in Heller, writing “once one knows the history,” as did Alito in McDonald, citing Schwartz for the purported English right—likewise not construing it.¹³¹

Scholars who “remain more or less firmly attached to the states’ rights reading,” like “Jack Rakove, Carl Bogus, Paul Finkelman, and others,”¹³² fall into the same trap of relying on historical narrative. For example, in an article, Poor History, False Originalism, and A Very Confused Court, Finkelman writes that Scalia “turned history upside down” and “rewrote the history of the Founding, carefully editing texts and sources to eliminate embarrassing material,” like the court’s “Dred Scott and Plessy disgraced relics of the past.”¹³³ But battling over history, “important to understand meaning,” Finkelman could not prove, as he rightly concluded, the amendment was “a simple guarantee the states will be allowed to provide arms for their ‘well-regulated’ militias if Congress failed to” do so.

Lost in the endless historical debate are legal concepts and terms that explain the amendment. To settle the debate and finally prove its meaning requires a deeper commitment to law, as Barrett advocates. Just as ordinary construction provides a key that unlocks the mystery of the English declaration, it helps unlock the amendment, too.

The meaning becomes clearer still with significant overlooked evidence, much of it in plain sight. Schwartz found it “surprising commentators have overlooked” the origins of the constitution’s “most significant provision—the Due Process Clause.”¹³⁴ It is just as surprising that commentators, even Schwartz, missed the meaning of the English declaration, and the origins, purpose, and meaning of the amendment.

Myopia has reigned since the Bush administration in 2001 abandoned the state right, and an appeals court dismissed it in dicta on superficial, unexamined assumptions,¹³⁵ with both sides arguing individual rights—the “fraud” and “absurdity”—from “snippets” and “turnips.” Few even mention the actual right today, much less attempt to unearth, as Barrett put it, “‘truffles buried’” in the record that substantiate it.¹³⁶

Misfocused on individual rather than public rights, both sides simply assume have arms connotes an individual freedom, like security, right, people, keep, bear arms, and infringe. And despite Brennan’s warning about “liberty,” most are oblivious that the founding “was a rhetoric of public liberty,”¹³⁷ focused as Hamilton emphasized on “invasions of the public liberty.” Fixated on personal liberty, Scalia dismissed as “contrary to virtually all authorities” a case that read the right to arms as a “‘protection of the public liberty’”¹³⁸—exactly what it is.

Heller needs to be recognized for the travesty it is and overruled. If the court were to extend its inventions to AR-15s, it would act at the country’s worsening peril, and its own. The prudent and only responsible course is to recognize that neither the Heller court nor parties ever addressed the full amendment or state right, order rebriefing, and decide what the amendment means.

As AR-15 issues force a reckoning at the court, they should also compel a reappraisal by both sides of their own miscalculations over the last two decades. To still argue, upon little construction and support, an “absurdity” and “fraud” is to argue an absurdity and fraud. Only a seismic shift back to original understanding—the state right—will undo the resulting horrific gun violence.

All of the views and opinions expressed in this article are those of the author and not necessarily those of The National Law Review.

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[1] Peruta v. California, 582 U.S. 943, 946 (2017) (Thomas, J., joined by Gorsuch, J., dissenting).

[2] D.C. v. Heller, 554 U.S. 570, 597, 599, 635 (2008).

[3] Snope v. Brown, 2025 U.S. LEXIS 2172, *1-3 (June 2, 2025) (Kavanaugh, J., concurring).

[4] Id. at *8-11 (Thomas, J., dissenting) (citing Bondi v. VanDerStok, 145 S. Ct. 857 (2025)).

[5] Smith & Wesson Brands, Inc. v. Mexicanos, 145 S. Ct. 1556 (2025) (Kagan, J.).

[6] Ames v. Ohio Dep’t of Youth Servs., 145 S. Ct. 1540 (2025) (Thomas, J., joined by Gorsuch, J., concurring).

[7] Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 814 (2014) (Scalia, J., dissenting).

[8] John Paul Stevens, The Making of a Justice 484-85 (2019).

[9] J. Harvie Wilkinson, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L.R. 253, 264, 274 (2009).

[10] Richard A. Posner, In Defense of Looseness, The New Republic (Aug. 27, 2008); Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic (Aug. 24, 2012).

[11] Constitutional Accountability Ctr., “Where Will the Second Amendment Revolution Lead?,” 1 nn.2-3 (May 31, 2012); Warren Burger, “The Right to Bear Arms,” Parade Magazine, 4 (Jan. 14, 1990).

[12] Nelson Lund, No Conservative Consensus Yet: Douglas Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment, 13 Fed. Soc’y Rev. (June 6, 2012); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1345, 1356-67 (2009).

[13] McDonald v. Chicago, 561 U.S. 742, 914 (Breyer, J., dissenting).

[14] U.S. v. Rahimi, 602 U.S. 680, 738 (Barrett, J., concurring); Samia v. U.S., 599 U. S. 635, 656-57 (2023) (Barrett, J., concurring in part); Vidal v. Elster, 602 U.S. 286, 311 (2024) (Barrett, J., concurring).

[15] Michael Dorf, Fresh Looks: What Does the Second Amendment Mean Today?, 76 Chi.-Kent L. Rev. 291, 304 (2000); Mark Tushnet, Out of Range, xv (2007).

[16] 554 U.S. at 639 (Stevens, J., joined by Souter, Ginsburg, Breyer, dissenting).

[17] J. Whisker, Arms Makers of Colonial America 15-19 (1992).

[18] 307 U.S. 174, 178-79 (1939) (citations omitted).

[19] Hickman v. Block, 81 F.3d 98, 101-02 & n.8 (9th Cir. 1996).

[20] Joyce Malcolm, To Keep and Bear Arms, x (1994); McLaughlin v. U.S., 476 U.S. 16, 17-18 (1986) (Stevens, J.); Heller, 554 U.S. at 610, 666 n.33 (citing Benjamin Oliver, The Rights of an American Citizen 177-78 (1832)).

[21] Randy Barnett, Don Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139, 1187 (1996); Carl Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309, 376 & n.317 (1998); Garry Wills, To Keep and Bear Arms, N.Y. Review (Sept. 21, 1995).

[22] William Merkel, The Second Amendment and the Constitutional Right to Self-Defense, 70 (Colum. U. thesis, 2013).

[23] Kanter v. Barr, 919 F.3d 437, 462 (7th Cir. 2019) (Barrett, J., dissenting) (citing Saul Cornell, ‘Don't Know Much About History’ The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L. Rev. 657, 679 (2002)).

[24] Powers v. Ohio, 499 U.S. 400, 409 (1991).

[25] Martin v. Mott, 25 U.S. 19, 30-31 (1827).

[26] Michael Waldman, The Second Amendment, A Biography, xiii (2014).

[27] Wells v. Bain, 75 Pa. 39, 53 (1873); Silveira v. Lockyer, 312 F.3d 1052, 1086-87 (9^th Cir. 2002) (reaffirming Hickman but intermixing “collective” as referring both to state right and right to serve).

[28] Jack Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 109 (2000); Amicus brief of Jack Rakove, Saul Cornell, et al., D.C. v Heller, 4 (Jan. 11, 2008).

[29] 554 U.S. at 582, 586, 599, 603, 627.

[30] John Paul Stevens, Six Amendments 132 (2014); 554 U.S. at 636, 667 (Stevens, J., dissenting); 561 U.S. at 897 (Stevens, J., dissenting).

[31] 554 U.S. at 636.

[32] See https://americanenlightenmentproject.org/.

[33] 554 U.S. at 694 (Breyer, J., dissenting) (citing Am. J. of Psychiatry).

[34] J. Michael Luttig & Richard Bernstein, If the Supreme Court Claims Power Over Gun Carry Laws, It Wil Be Making a Grave Mistake (N.Y. Times Nov. 3, 2021); Mary Franks, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs, 98 N.Y.U.L. Rev. 1881, 1882-83 (2023) (emphasis in original).

[35] 554 U.S. at 599.

[36] B. Smith, C. McWhither, Far-Right Groups Buzz with Violent Talk Ahead of Rallies (WSJ, June 14, 2025).

[37] S. Ellison, Y. Sanchez, Minn. Killings show depth of nation’s political fractures (Wash. Post, June 16, 2025).

[38] Chief Justice John Roberts, 2024 Year End Report on the Federal Judiciary, 5, 7.

[39] Bianchi v. Brown, 111 F.4^th 438, 463 (4th Cir. 2024) (Wilkinson, J.) (renamed Snope v. Brown); id. at 474 (Diaz, C.J., concurring).

[40] N.Y.S. Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 70 (2022) (quoting McDonald, 561 U.S. at 780)).

[41] 554 U.S. at 627.

[42] Lund, 56 UCLA L. Rev. at 1366-67.

[43] Bianchi, 111 F.4^th at 441, 453, 455-56, 460 (Wilkinson, J.) (citations omitted); id. at 477-78 (Gregory, J., concurring in judgment); id. at 531-32, 535 (Richardson, J., dissenting).

[44] Caetano v. Massachusetts, 577 U.S. 411, 418 (Alito, J., with Thomas, J., concurring) (citing Heller).

[45] Heller v. Dist. of Columbia, 670 F.3d 1244, 1269 (D.C. Cir. 2011) (“Heller II”) (Kavanaugh, J., dissenting).

[46] Dept. of Justice Press Release No. 25-520 (May 16, 2025).

[47] See U.S. v. Brown, 764 F. Supp. 3d 456, 462-63 (S.D. Miss. Jan. 29, 2025) (finding “740,000 machine guns lawfully possessed”); U.S. v. Morgan, 2024 U.S. Dist. LEXIS 152562 (D. Kan. Aug. 26, 2024).

[48] T. Gibbons-Neff, “At Gun Stores, Accessories and Lifestyle Gear Are Driving Sales,” N.Y. Times (Mar. 2, 2025).

[49] U.S. v. Skrmetti, 222 L. Ed. 2d 136, 170 (2025) (Kavanaugh, J.).

[50] Bianchi, 111 F.4^th at 473 (Diaz, C.J., concurring).

[51] Uvalde cops admit they were too scared of school shooter’s AR-15 ‘battle rifle’ (N.Y. Post, Mar. 21, 2023).

[52] Lund, 56 UCLA L. Rev. at 1365-66.

[53] Robert Leider, The Individual Right to Bear Arms for Common Defense, 3, 48 (Aug. 02, 2024) (emphasis in original), available at SSRN:https://ssrn.com/abstract=4918009.

[54] 554 U.S. at 630.

[55] Amicus brief of Global Action on Gun Violence, U.S. v. Rahimi, 21, 22 n.74 (Aug. 21, 2023).

[56] Malcolm at 136.

[57] 561 U.S. 914 (Breyer, J., dissenting).

[58] Malcolm, To Keep and Bear Arms at 1, 9, 115, 120.

[59] Id. at 119-20, 126-27, 165.

[60] Barnett, 45 Emory L.J. at 1187; Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 136-37 n.13 (1997); Printz v. United States, 521 U.S. 898, 939 (1997) (Thomas, J., concurring).

[61] Amicus Brief of English/Early American Historians, McDonald v. Chicago, 2-3 (Jan. 6, 2010); 561 U.S. 915-16 (Breyer, J., dissenting) (emphasis added).

[62] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 856-57, 861 (1989).

[63] Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).

[64] See https://en.wikipedia.org/wiki/George_Wythe.

[65] Gompers v. U.S., 233 U.S. 604, 610 (1914) (Holmes, J.).

[66] E.g., Art. I, sec. 8. cl. 16 (“Militia…as may be employed in the Service of the United States”).

[67] Bogus, 31 U.C. Davis L. Rev. at 380.

[68] E.g., Charles II, 1662 (“a Musqueteer is to have a Musquett the Barrell whereof is not to be under three Foot”); Massachusetts, 1632 (“have…a sufficient musket or other serviceable peece for war…for himself and each man servant he keeps able to beare arms”); Connecticut, 1650 (“shall have in continuall readiness, a good muskitt…fit for service”) (emphasis added).

[69] Malcolm, To Keep and Bear Arms at 120.

[70] Id. at 117.

[71] Bernard Bailyn, The Ideological Origins of the American Revolution 201 (1992).

[72] Id. at 137 (citing Roy Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hast. Const. L. Q. 961, 973-74 (1975)); Joyce Malcolm, The Right of the People to Keep and Bear Arms, 10 Hastings Const. L.Q. 285, 306 (1983).

[73] McDonald, 561 U.S. at 915-16 (Breyer, J., dissenting) (emphasis in original).

[74] Id. at 916 (Breyer, J., dissenting); id at 788 (Alito, J.).

[75] 554 U.S. at 613.

[76] Houston v. Moore, 18 U.S. 1, 52-53, 76 (1820) (Story, J., dissenting).

[77] 554 U.S. at 593, 599, 608.

[78] Id. at 578 & n.3, 599 (Scalia, J.); id. at 642-43 & n.6 (Stevens, J., dissenting).

[79] Antonin Scalia, Bryan Garner, Reading Law: The Interpretation of Legal Texts 33, 167-68 (2012) (emphasis in original, citing McCulloch v. Md., 17 U.S. 316 (1819) (Marshall, C.J); Panama Ref. Co. v. Ryan, 290 U.S. 388, 439 (1935) (Cardozo, J., dissenting)).

[80] Graham v. John Deere Co., 383 U.S. 1, 6 (1966); Eldred v. Ashcroft, 537 U.S. 186, 212 (2003).

[81] Printz, 521 U.S. at 920 n.10 (Scalia, J.).

[82] Art. Confed., Arts. III, VI, IX; James Madison, Report on the Virginia Resolutions (Jan. 7, 1800).

[83] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37 (1997); Biden v. Nebraska, 600 U.S. 477, 511 (2023) (Barrett, J., concurring).

[84] 554 U.S. at 594 (citing Granville Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782) (emphasis in original)).

[85] See, e.g., Sharp at 10n, 11-14, 17, 19n, 42 (emphasis in original, citations omitted).

[86] Malcolm, To Keep and Bear Arms at 132-33 & n.55 (citing Sharp at 17-18, 27).

[87] Sharp at 75, 79, 85.

[88] Reading Law at 167-68.

[89] 554 U.S. at 597.

[90] Joseph Story, Story on Rules of Constitutional Interpretation 190 (1833) (words must “receive a reasonable interpretation” and not reduce the Constitution “to a state of imbecility”).

[91] 554 U.S. at 596, 599-600.

[92] State v. Kessler, 289 Ore. 359, 364-65 & n.7, 367 & n.12 (1980).

[93] Randy Barnett, Don Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139, 1208 (1996), quoting Nelson Lund, The Second Amendment, Political Liberty and the Right to Self-Preservation, 39 Ala. L. Rev. 103, 107 n.8 (1987), citing David Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv. J.L. & Pub. Pol'y 559, 626 n.328 (1986), citing 2 Compact Edition, Oxford English Dictionary 2473 (1971).

[94] 2 The Records of the Federal Convention 332 (M. Farrand, ed., Aug. 18, 1787).

[95] Federalist 29.

[96] 554 U.S. at 580-81.

[97] 544 U.S. at 599.

[98] Federalist 28, 46; 554 U.S. at 595-96; Letter to Destutt de Tracy (Jan. 26, 1811), The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975).

[99] 1 Blackstone 244.

[100] R. Weiner et al., Oath Keepers leader Rhodes sentenced to 18 years (Wash. Post, May 26, 2023); T. Jackman et al., Rhodes Testifies in Jan. 6 trial (Wash. Post, Nov. 6, 2022); S. Hsu, Prosecutors in Jan. 6 trial introduce raft of defendant’s boasts (Wash. Post, Mar. 4, 2022).

[101] Reading Law at 174.

[102] E.g., Kurt Lash, Inkblot: The Ninth Amendment as Textual Justification for Judicial Enforcement of the Right to Privacy, 80 U. Chi. L. Rev. Dialogue 219, 220-23 (2013) (citations omitted); Robert Bork, The Tempting of America: The Political Seduction of the Law 185 (1990).

[103] Madison, Report of 1800.

[104] E.g., Yates v. U.S., 574 U.S. 528, 537 (2015).

[105] State v. Misch, 2021 Vt. 10, 27-29 (2021).

[106] Barris v. Stroud Twp., 310 A.3d 175, 180 n.4 (Pa. 2024) (citing Heller).

[107] State v. Wilson, 154 Haw. 8, 19-21 (2024) (quoting U.S. v. Tot, 131 F.2d 261, 266 (3d Cir. 1942)).

[108] 554 U.S. at 582-84, 592; id. at 646 (Stevens, J., dissenting).

[109] 554 U.S. at 582-83, 587-88, 650, n.12 (emphasis in original).

[110] 554 U.S. at 598 n.13.

[111] Board of Educ. v. Grumet, 512 U.S. 687, 708-09 (1994) (Souter, J.).

[112] 307 U.S. at 178-79.

[113] Lund, 56 UCLA L. Rev. at 1364, 1366-67.

[114] 554 U.S. at 624-25 (citing Kessler, 289 Ore. at 368).

[115] 554 U.S. at 599, 606.

[116] Oil States Energy Servs., LLC v. Greene's Energy Grp., LLC, 584 U.S. 325, 334-36 (2018).

[117] Fluor Corp. v. Super. Ct., 354 P.3d 302, 304, 333 (Cal. 2015).

[118] State v. Sandoval, 156 P.3d 60, 64 (Ore. 2007).

[119] Terminiello v. Chicago, 337 U.S. 1, 37 (Jackson, J., dissenting).

[120] Bruce Murphy, Scalia, A Court of One, 390 (2014); Reading Law at 400-02.

[121] Thomas Paine, “To the Citizens of Pennsylvania on the Proposal for Calling a Convention” (1805).

[122] The Independent, “America’s Shame” (editorial, Jun. 19, 2015).

[123] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 863 (1992) (O’Connor, Kennedy, Souter, JJ.).

[124] McCoy v. BATFE, 2025 U.S. App. LEXIS 15056 *12-17 (Jun. 18, 2025).

[125] Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 401 (2023) (Thomas, J., concurring).

[126] 561 U.S. at 916 (Breyer, J., dissenting); id. at 908 (Stevens, J., dissenting) (citing Roper v. Simmons, 543 U.S. 551, 617 (2005) (Scalia, J., dissenting)).

[127] Vidal, 602 U.S. at 311 (Barrett, J., joined by Sotomayor, Kagan, Jackson, concurring); id. at 327 (Sotomayor, J., joined by Kagan, Jackson, concurring); Rahimi, 602 U.S. at 706 (Sotomayor, J., joined by Kagan, concurring).

[128] McDonald, 561 U.S. at 907 (Stevens, J., dissenting) (citation omitted).

[129] Heller, 554 U.S. at 605 (emphasis in original).

[130] 1 Benjamin Schwartz, The Bill of Rights: A Documentary History 41, 43 (1971).

[131] Heller, 554 U.S. at 593-94, 598; McDonald, 561 U.S. at 815-16.

[132] Merkel at 70.

[133] Paul Finkelman, The Living Constitution and the Second Amendment: Poor History, False Originalism, and A Very Confused Court 37 Cardozo L. Rev. 623, 632, 649, 654, 659, 661-62 (2015).

[134] 2 Schwartz at 855-56.

[135] U.S. v Emerson, 270 F.3d 203, 220, 227-28 (5^th Cir. 2001).

[136] Murthy v. Missouri, 603 U.S. 43, 67 n.7 (2024) (Barrett, J.) (citation omitted).

[137] Rakove, 76 Chi.-Kent L. Rev. at 110.

[138] 554 U.S. at 613 (citing Aymette v. State, 21 Tenn. 154, 158 (1840)).