Working Paper No. 09-01:
The Second Amendment, Heller, and Originalist Jurisprudence

Author(s):

Nelson Lund

Date Posted: January 2009

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Abstract:

District of Columbia v. Heller was a Second Amendment test case, brought by a group of libertarian lawyers on behalf of plaintiffs with respectable backgrounds and appealing reasons for seeking relief from the District of Columbia's extremely restrictive gun control regulations. Heller turned out to be a test case in a different sense as well. With almost no relevant precedent to constrain its analysis, the Supreme Court was given the opportunity to apply a jurisprudence of original meaning to the Second Amendment's manifestly puzzling text. The Chief Justice ensured that this would be a pretty fair test of originalism when he assigned the majority opinion to Justice Scalia.

In Heller, the lawyers who initiated the litigation won their test case. Justice Scalia and his colleagues, however, flunked their test. This was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration. Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment.

In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result. But the Court's reasoning is at critical points so defective-and so transparently defective in some respects-that Heller should be seen as an embarrassment for those who joined the majority opinion. I fear that it may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial defenders.