The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller

The Second Amendment, Heller, and Originalist Jurisprudence

148 Z Z Z Z The Second Amendment, Heller, and Originalist Jurisprudence Nelson Lund Z Z Z Z District of Columbia v. Heller gave the Supreme Court an opportunity to apply a jurisprudence of original meaning to the Second Amendment’s manifestly puzzling text. Notwithstanding the chief justice’s decision to assign the majority opinion to Justice Scalia, the Court squandered the opportunity. 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 non-originalist in some respects—that Heller should be seen as an embarrassment for those who joined the majority opinion. 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 exponents. INTRODUCTION District of Columbia v. Heller1 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. The challenged statute The Second Amendment, Heller, and Originalist Jurisprudence 149 prohibited almost all D.C. residents from possessing handguns, and required that all firearms be kept in an inoperable condition. This effort to disarm the citizenry had been in place for over thirty years, and was the most restrictive gun control law in the country. By a vote of five to four, the Court held that both the handgun ban and the safe-storage regulation violated the Second Amendment, which protects at least the right to keep a handgun in one’s own home and to make it operable for purposes of immediate self-defense. 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 had the opportunity to apply a jurisprudence of original meaning to the Second Amendment’s manifestly puzzling text. The Chief Justice seized this opportunity when he assigned the majority opinion to Justice Scalia. In recent decades, Antonin Scalia and other legal conservatives have used the principles of originalism as a powerful weapon for criticizing decisions that effectively amended the Constitution through judicial fiat.2 But this has provoked counterattacks alleging that originalism gets deployed primarily as a weapon for selectively attacking decisions that political conservatives find objectionable on policy grounds.3 This raises an important question: Can originalism truly offer a principled alternative to “living constitutionalism”— one that constrains judicial willfulness and preserves the distinction between law and politics? In Heller, the lawyers who initiated the litigation won their test case, but Justice Scalia flunked his own 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 have 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. I should note at the outset that I will give the Heller majority opinion the respect that I think it is due by treating it as what it purports to be, namely, a legal opinion that presents the reasons for the decision. Accordingly, I will not speculate about compromises that the justices may have reached among themselves in order to achieve consensus. For all I know, some of them may have said to themselves, in the manner of a U.S. senator, “I’m joining this opinion, although it contains elements with which I disagree, because the good outweighs the bad.” But none of them said so publicly. Nor did any member of the Heller majority follow the common practice of writing a separate opinion concurring in part and concurring in the judgment. Justice Scalia’s 150 nelson lund opinion is presented as a reasoned interpretation of the law by a court, not as a political compromise, and I will leave others to speculate about logrolling and secret deals. 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 in some respects so transparently non-originalist—that Heller should be seen as an embarrassment for those who joined the majority...