Misfire: The Supreme Court, the Second Amendment, and Our Right to Bear Arms

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United States Supreme Court decisions have interested me since my twenties. My primary interest has been in the cases decided by split votes. If the nine Court justices voted 9 or 8–0 (sometimes a justice’s seat was vacant or a justice did not vote), or even 7 or 8–1, I have generally given such cases little thought, assuming that those decisions were probably reasonable.  That assumption was based on the fact that given the different backgrounds, training and philosophies (think Democrats v. Republicans) of the justices, when they all, or almost all, agree on a case, they probably reached a fair decision. Of course, there have been bad unanimous Supreme Court decisions, depending on whom you ask, but they seem to have been few over the years. Conversely, when I see a 5–4 decision, as in the Second Amendment case of District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller), the subject of this book, I tend to take notice.

The 5–4 (or the occasional 4–3) decisions bring up questions of why there would be such a split vote. Given that all the justices are said to be accomplished attorneys, and that they all have presumably read and heard the same facts and law of a case, why did their conclusions differ? It should be so simple. The justices should just read the law, absorb the facts, listen to the oral arguments, and make the right decision.

That, of course, isn’t life, given laws and facts are often imprecise, if not in dispute, and that humans, with all our differences, are involved in the analysis and voting.

This brings me to the raison d’etre of this work: the 5–4 vote of the consequential 2008 Supreme Court Heller decision. That decision found in the Second Amendment an individual right to arms for self-defense in the home, unconnected with the militia. Prior to that decision, no Supreme Court decision had ever found an individual right to arms in the Amendment.

I examined the decision and researched, with others helping, Colonial and founding-era documents, firearms laws and related material surrounding that decision. That examination and research culminated in this book showing why the Heller decision was not supported by the facts presented in its Opinion.

Steven C. Markoff is a native of Los Angeles, California, and a graduate of Los Angeles City College in 1964 with an Associate Arts degree. Markoff is a successful entrepreneur. He has had an interest in business since he was six and in business law since his teens.

Misfire is a compelling read and includes an interesting amicus brief filed by linguists. This is a book that should be on every Justice’s desk when the next gun case comes around.”
Darren Smith, attorney

Misfire is an impressive, path-breaking feat of original historical research about colonial America’s legal treatment of firearms regulation leading up to the adoption of the Second Amendment in 1791. Historian Steve Markoff has rendered a genuine public service by meticulously collecting and deftly analyzing the record in the 13 colonies, demonstrating the utter lack of any evidence for the personal right of individuals to firearms. ... Misfire offers a timely opportunity for the Justices to revisit Heller.”
Pierce O’Donnell, Author of In Time of War: Hitler’s Terrorist Attack on America

Misfire is an exhaustive examination of the historical sources contemporaneous with the Second Amendment’s passage. No matter how much you think you know about the Second Amendment, you’re guaranteed to learn something from this well-researched book.”
—California State Assemblyman Mike Gatto (ret.)

“In Misfire, Steve Markoff and his research team take the reader on a fascinating in-depth journey through a mosaic of colonial laws and regulations in order to construct the true underlying historical foundation upon which the 2nd Amendment was birthed and then apply and contrast this milieu with that espoused in Heller–all with surprising results.”
Robert V. Madden, attorney at law

“The book is a thought-provoking critique of the Second Amendment, particularly analyzing the 2008 Heller decision by the U.S. Supreme Court. Markoff challenges the decision’s foundation, arguing that it diverges significantly from historical context and documentation. … the book’s subject is highly relevant. Markoff provides a fresh perspective on a well-trodden topic, which is valuable for readers seeking a deeper understanding of the Second Amendment.”
James Bryan, Esq.

“The main thesis of the book, that historical evidence provides no basis for an individual right to firearms, is proven by the arguments and historical documents that you explore in the book.”
Trina Madison, lawyer

“I think the book was, overall, well written. I was surprised at the thorough, technical research that went into this, referencing early writings I was wholly unaware of, and documents I was otherwise not this familiar with as applied to firearms/the 2nd Amendment.”
Joe Ranvestel, civil rights attorney and former public defender