Document Type


Publication Date

July 2008


This article analyzes and critiques the Supreme Court’s recent decision in District of Columbia v. Heller, which ruled that that the Second Amendment protects an individual right to possess firearms unconnected with service in a militia. The focus of the article is on Justice Scalia’s majority opinion in Heller, which adheres strictly to an extreme view of originalism holding that the Constitution should be interpreted by ascertaining its original meaning at the time it was adopted. Justice Scalia believes that the Constitution has a static meaning, and that changes in the world around us are of no relevance to constitutional interpretation. His exposition of the Second Amendment in Heller is bad history--simplistic analysis that ignores the complexities of historical research.

Justice Scalia’s extreme version of originalism is based on the misguided belief that the original meaning of the Constitution is fixed in history and can be objectively determined by searching historical records. It is incorrect to believe that the Constitution can be interpreted simply by reference to the original understanding of the document. Blindly following the presumed meaning of constitutional provisions formulated in reaction to past conditions and attitudes that have long since changed does not achieve the original understanding. Nor is it likely to be an effective means of dealing with contemporary problems. Justice Scalia’s brand of originalism is dysfunctional, an instance of cultural lag whereby the meaning of the Constitution is left dormant while the world changes around it.

In Heller, Justice Scalia flatly refuses to take a balancing approach to determine the permissible limitations that may be placed on the right to bear arms. His refusal to examine any policy considerations regarding the Second Amendment renders its application a desultory matter, haphazard in function and confined by outmoded notions. In contrast, the balancing approach advocated by Justice Breyer in his dissenting opinion offers a more realistic means to interpret the Second Amendment that affords transparency and rationality to constitutional adjudication.

Justice Scalia’s reasoning in Heller is reminiscent of the reasoning in Lochner v. New York, which took a similar formalistic approach to limit state authority. In both Lochner and Heller, the Court erects formal categories to delineate the scope of a constitutional right and the authority of the state to enact laws that limit the right. In Lochner the category was based on “common understanding,” while in Heller it is based on “common usage.” In both instances, the Court ignores empirical evidence demonstrating a compelling need for the laws in question.

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