33 Pages Posted: 18 Jun 2009
Date Written: June, 18 2009
This Essay weighs Justice Scalia's Heller opinion in the balance, and finds it wanting. Rather than being a garden variety case of originalism manqué, i.e. an effort to pin point a single original understanding when in fact meaning was hotly contested at the time constitutional text was created, Heller emerges as an act of (self?)-deception or conscious fraud. Few of the historical assumptions that underlie Justice Scalia's analysis withstand scrutiny. The majority holding-that the Second Amendment was originally understood to protect the right to possess any commonly held weapon for purposes unrelated to militia service such as self-defense and hunting-requires misreading, misunderstanding, or ignoring the bulk of relevant evidence such as the debates on the pending Amendment in the House of Representatives and the common meaning accorded bearing arms in newspapers and pamphlets of the day. Rather than using historical source material to inform his analysis, Justice Scalia operates with the faith-based assumption that the framers must have intended to protect a private right to gun possession, and then manipulates outlying evidence to dress up his claim in ill-fitting pseudo academic garb. In the process he demonstrates conclusively that the originalist methodology he trumpeted in A Matter of Interpretation as the surest remedy against judicial injection of subjective values into constitutional adjudication is in fact nothing more than a hollow sham.
Keywords: Antonin Scalia, Second Amendment, right to arms, firearms possession, gun control, arms control
Suggested Citation: Suggested Citation
Merkel, William G., The District of Columbia v. Heller and Antonin Scalia's Perverse Sense of Originalism (June, 18 2009). Lewis & Clark Law Review, Vol. 13, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1422048