Heller as Hubris, and How McDonald v. City of Chicago May Well Change the Constitutional World as We Know It

41 Pages Posted: 14 May 2010  

William G. Merkel

Charleston School of Law

Date Written: May 13, 2010

Abstract

This article critiques the jurisprudential philosophy underlying Justice Scalia’s opinion in District of Columbia v. Heller, in which the Supreme Court for the first time enforced a private right to weapons possession under the Second Amendment. The article anticipates the likely incorporation of that newly minted right against the states in McDonald v. City of Chicago, a case heard by the Supreme Court in the spring of 2010, and argues that the original understanding of the Second and Fourteenth Amendments cannot easily be reconciled with a judicially enforceable right to weapons possession unrelated to service in the lawfully established militia. In the process, the article calls into question glib popular and judicial assumptions believed to legitimize judicial review, and suggests that judicial veto of legislatively determined policy choices requires a far more cogent theoretical foundation than that provided by Justice Scalia’s fetishistic and idolatrous adherence to caricatured visions of an “original public meaning” that allegedly held sway when constitutional text was proposed and ratified.

Keywords: constitutional interpretation, constitutionalism, bill of rights, Second Amendment, incorporation, Heller, McDonald v. City of Chicago, guns, original meaning, original intent, Scalia, Privileges and Immunities, substantive due process, Civil War and Reconstruction, Fourteenth Amendment

Suggested Citation

Merkel, William G., Heller as Hubris, and How McDonald v. City of Chicago May Well Change the Constitutional World as We Know It (May 13, 2010). Santa Clara Law Review, Vol. 50, No. 4, 2010. Available at SSRN: https://ssrn.com/abstract=1607092

William G. Merkel (Contact Author)

Charleston School of Law ( email )

Charleston, SC 29402
United States

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