49 Pages Posted: 31 Jul 2008
Date Written: July 30, 2008
The first of these companion essays, Heller and the New Originalism, forthcoming in the Ohio State Law Journal, argues that the new originalism, as exemplified in Heller, does not avoid the general kinds of difficulties associated with the old originalism, at least to the extent that the new originalism is defended as providing, in Justice Scalia's terms, a solid, rock-hard Constitution. It describes several difficulties with the new originalism as displayed in Heller, including the assumption that meanings are stable over long periods of time, the possibility that meanings of constitutional terms are contested at the time the terms are inserted into the Constitution, and the difficulty that meanings are necessarily indexed to the conditions under which words are used.
The second essay, Heller and the Perils of Compromise, forthcoming in the Lewis & Clark Law Review, describes the ways in which the absolutist rhetoric about the appropriate method of constitutional interpretation that predominates in Justice Scalia's majority opinion in Heller is in tension with the asserted presumptive constitutionality of numerous gun regulations, and argues that interest-balancing of the sort Justice Scalia criticizes is inevitable in constitutional interpretation, even within Justice Scalia's assertedly non-balancing approach. It speculates that the compromises embedded in Heller make it likely that the decision will unravel, leading either to quite robust restrictions on gun regulation or, more likely, a quite weak Second Amendment. I suggest that the Heller decision may be for the Second Amendment what early decisions were for the so-called Federalism and Takings Revolutions: decisions that promised real change in prevailing constitutional doctrine, but that failed to deliver on the promise.
Keywords: Second Amendment, District of Columbia v. Heller, originalism, constitutional interpretation
Suggested Citation: Suggested Citation
Tushnet, Mark, Two Essays on District of Columbia v. Heller (July 30, 2008). Harvard Public Law Working Paper No. 08-17. Available at SSRN: https://ssrn.com/abstract=1189494 or http://dx.doi.org/10.2139/ssrn.1189494