Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss”


District of Columbia v. Heller has been hailed by its supporters as a model of “new originalism,” a methodology that focuses on original public meaning and eschews any concern for original intent. The decision and its methodology have drawn fire from legal scholars from across the contemporary ideological spectrum. The “public meaning” approach employed by the Heller majority rests on a flawed methodology that is antithetical to Founding-era interpretive practices. The problems with this method are evident in Justice Scalia’s interpretation of the Second Amendment’s preamble. Scalia uses a “Cheshire Cat rule of construction” in which he reads the text of the Second Amendment backwards. In this bizarre approach, the Second Amendment’s preamble vanishes during the process of interpretation and only reappears at the very end when it is used to confirm Scalia’s interpretation. This rule has no foundation in Founding-era practice and violates the Blackstonian method favored by most judges in the Founding era. The problems with new originalism are also evident in post-Heller commentary, particularly criticism of Justice Stevens’ dissent. Gun rights advocates have been especially outraged by Stevens’ discussion of St. George Tucker. Yet, when Tucker’s earliest writings on the Second Amendment are examined with a Blackstonian interpretive method, they lend additional weight to Stevens’ argument. Indeed, Tucker’s earliest comments on the Second Amendment challenge Scalia’s ahistorical claim that the Founders believed that the English Bill of Rights established a broad right to have arms. In contrast to Scalia, Tucker thought that the scope of the English right to arms was so limited that it was virtually non-existent.

About the Author

Professor of History, Ohio State University

By uclalaw