District of Columbia v. Heller and Originalism
Lawrence B. Solum
Georgetown University Law Center
October 28, 2009
Northwestern University Law Review, Vol. 103, No. 2, 2009
Illinois Public Law Research Paper No. 09-14
On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents from Justice Stevens and Justice Breyer. Collectively, the opinions in Heller represent the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court.
This Article investigates the relationship between originalist constitutional theory and judicial practice in the context of the United States Supreme Court's decision in District of Columbia v. Heller. Part I introduces Heller and the role of originalism in the opinions of the Justices. Part II contextualizes Heller by tracing the evolution of contemporary originalist theory. Part III examines the reasoning of the Heller majority and identifies the unarticulated assumptions that would be required to square the result in Heller with a fully articulated originalist theory of constitutional interpretation. Part IV examines the role of intentionalist and teleological reasoning in Justice Steven's dissenting opinion. Part V considers the implications of Heller's originalist theory for the question whether the Second Amendment will be applied to the states via the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment. Part VI considers the relationship of the Heller to the distinction between constitutional interpretation and constitutional construction that has emerged from contemporary originalist theory. Finally Part VII draws conclusions about the implications of Heller for the relationship between originalist theory and originalist practice.
This is the final version of "District of Columbia v. Heller and Originalism" with pagination and citation information. The final draft version is available on SSRN as a working paper.
Number of Pages in PDF File: 61
Date posted: October 30, 2009