Academic

Shaman on District of Columbia v. Heller

By Lawrence Solum

Jeffrey M. Shaman (DePaul University - College of Law) has posted The Wages of Originalist Sin: District of Columbia v. Heller on SSRN.  Here is the abstract:

This essay analyzes and critiques District of Columbia v. Heller, in which the Supreme Court ruled by a 5-4 vote that the Second Amendment of the Constitution protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for self-defense within the home. Justice Scalia's majority opinion in Heller strictly adheres to his belief that the Constitution should be interpreted by ascertaining its original meaning at the time it was adopted. Scalia believes that the Constitution has a static meaning and that changes in the world around us are of no relevance to constitutional interpretation. His exposition of the Second Amendment in Heller is bad history--simplistic analysis that ignores the complexities of historical research. And his refusal to examine any policy considerations regarding the Second Amendment renders its application a desultory matter, haphazard in function and cabined by outmoded notions.

Justice Scalia's extreme version of originalism is based on the misguided belief that the original meaning of the Constitution is fixed in history and can be objectively determined by searching historical records. It is incorrect to believe that the Constitution can be interpreted simply by reference to the original understanding of the document. Blindly following the presumed meaning of constitutional provisions formulated in reaction to past conditions and attitudes that have long since changed does not, in the end, effectuate the original understanding. Nor is it very likely to be an effective means of dealing with contemporary problems. Justice Scalia's brand of originalism is dysfunctional, an instance of cultural lag whereby the meaning of the Constitution is left dormant while the world changes around it.

The balancing approach advocated by Justice Breyer in Heller offers a more effective means to interpret the Second Amendment. Balancing is a realistic method of interpretation calling for informed decision-making that affords transparency and purposefulness to constitutional adjudication. While balancing does require judgment, the nature of the balancing process circumscribes judicial discretion by requiring careful identification of the relevant interests and an evaluation of the law's effect upon them. Above all, balancing is a purposive means of constitutional interpretation.

Full post as published by Legal Theory Blog on July 24, 2008 (boomark / email).