Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America


This Article seeks to historicize the meaning of the Second Amendment as well as the constitutional debate now swirling about it in the wake of District of Columbia v. Heller. This Article takes seriously the interpretive significance of the concept of “original public meaning” that figures so prominently in that decision; it seeks to examine—and even to apply—that concept more broadly to the discourse struggling to come to terms with the meaning of the Second Amendment and “the right of the people to keep and bears arms” in 1791. This discourse, like that of the drafting of the Amendment itself, is taking place at a particular historical point in time, and the articulation of original public meaning reflects the contested nature of today’s discourse as much as it does that of any “original” discourse, which was no less contested. This Article therefore will draw not only on the continuing debate about original meaning, but also will attempt to recognize and accommodate the present-day constitutional dialogue that has brought the role and authority of judicial review into question. In addition, it recognizes and applies the significant advances in scholarship on the Founding and the early Republic by scholars outside the legal academy studying the role of the public in constitutional politics and print culture. By bringing those discourses into a common dialogue, this Article finds a common ground of meaning shared by the public at the Founding, and on that common ground, it finds a structure of public meaning sharply at odds with the majority opinion in Heller.

About the Author

Professor of History and Professor of Law, Washington University in St. Louis

By uclalaw