The Supreme Court and the Uses of History: District of Columbia v. Heller


The Second Amendment is unusual in that until District of Columbia v. Heller, the Supreme Court had never interpreted the core meaning of the right. But it is that core meaning that, in recent years, has been in dispute. The issue is whether the Amendment was intended to protect a right for individuals to keep and bear arms, as the operative clause implies, or merely a right for states to have a militia and for members of that militia to be armed. In light of this ambiguity, the justices necessarily employed an originalist approach in order to recapture the intent of the Founders and the understanding of “the people” whose right it was meant to protect. History is essential to revealing that meaning, and all the justices tried their hands at employing historical inquiry. This Essay examines how their use of history accords with the basic rule for historical writers: Do not invent convenient facts and do not ignore inconvenient facts. Using that yardstick, I evaluate the justices’ use, abuse, and avoidance of history, focusing on three aspects of the opinions in Heller: the analysis of the Amendment’s language, the question of the right to be armed as a pre-existing right, and the Amendment’s drafting history. The majority opinion is a model of rigorous historical inquiry, while the dissents fall short.

About the Author

Professor of Law, George Mason University School of Law

By uclalaw