Heller As an Advertisement for Originalist Methodology

Eric Posner has posted a few comments on our first class on originalism, including his thoughts on Heller:

It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the Court does not resolve the ambiguity one way or the other. A general preference for allowing voters to make up their own mind, the absence of any allegation or evidence of political failure, a relevant precedent if not a strong one, and a very long history of gun control legislation across the country all point to upholding the statute. Both Scalia’s and Stevens’ opinions are horrible messes. Scalia’s parsing of the text is wooden and ludicrous. Both of them select the evidence they like and interpret it tendentiously. Neither show any feeling for history. The opinions are tedious, pompous anti-models of judicial writing, no advertisement for the method of originalism.

It will probably be no surprise to readers that I have a different view. It is true that the opinions in Heller are very long, and go into much more historical detail than Supreme Court opinions usually do. The length and density of the opinions is unfortunate in one sense. It makes the historical questions seem much harder, or much more intractable, than they really are if you sit down and go through the materials carefully. On the other hand, shorter more engimatic opinions have costs too, because then the Court is accused of going too fast, not explaining itself, etc.

(I also wish that the Heller opinions had been shorter because then it might have been feasible to assign Larry Solum’s excellent article on Heller and interpretive methodology.)

In any event, it seems to me that most of the work in Heller is done by an interpretive claim that is as much legal or theoretical as it is historical. This is the majority’s claim that “the Second Amendment was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors,” and that even if self-defense was not the primary purpose of “the right’s codification; it was the central component of the right itself.” The idea here is to see the Second Amendment as framed against a vast pre-existing backdrop of non-constitutional legal rules, including the right to keep and bear arms. The Second Amendment plucks one of those pre-existing rules and codifies it against future change.

Now one could certainly disagree about that move. Some people think that legal rules should be limited to the paradigm cases or purposes that motivated their enactment. But I think the move is correct. If the Takings Clause began by telling us that it was primarily motivated to stop the uncompensated impressment of horses and guns by the army, we should still read “private property” consistent with its natural and traditional scope. In any event, once that move is established, most of the history described by the dissent is beside the point.

This is a recurring theme in originalism debates. Often what seems like an intractable historical debate is really solved by a legal or interpretive question about what kind of history matters. Consider also the debate between Justices Scalia and Stevens in Citizens United about the First Amendment and corporations. Justice Stevens argues that the Framers’ negative views about the role of corporations in society makes it unlikely that corporations have full First Amendment rights. Justice Scalia responds that Founding-era attitudes towards corporations are irrelevant if the text does not incorporate them, or at least that we would need specific evidence that corporations were thought to be excluded from the freedom of speech. Again, the important dispute is not really a historical one so much as an interpretive one, about what kind of historical evidence is relevant to legal meaning.

All of this is why I think originalism today is best learned in law schools, and practiced by legal scholars, rather than in other academic departments. But that is a much longer discussion for another day.