The Second Amendment, Heller, and Originalist Jurisprudence


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.

About the Author

Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law

By uclalaw