Owning Heller

Abstract

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – even if that means rejecting Heller? One thing this new research makes abundantly clear: the Second Amendment is in the Court’s hands. How it develops—for good or ill—will be a function solely of the wisdom with which the Court articulates its mandates.

Keywords: originalism, Heller, second amendment, constitution, constitutional law, firearms, precedent, stare decisis, arms, appeals