D.C. v. Heller: Will Originalism Matter, or Will the Court Misfire?

While deducing from the calendar who is likely to write an opinion from any given sitting is a matter of considerable speculation, there is reason to believe that Justice Scalia may be writing D.C. v. Heller . Should that prove to be true, it is worth recalling Justice Scalia’s own definition of originalism, and his particular “originalist” understanding of the Second Amendment, at the time of the oral argument?

First, the general theory:

The theory of originalism,” explains Justice Scalia, “treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. … I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

Next, the particular:

Observed Justice Scalia, at the oral argument, “I don’t see how there’s any, any contradiction between reading the second clause as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State-managed. But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

“[Without the Second Amendment] s o long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could disband the State militias.”

What does this mean for Heller? At the very least, if originalism matters, it should mean that the gun-possession right whether thought to be individually held or collectively held is at the very least militia-related.  Because:

1.  As understood at the time of ratification, the purpose and meaning of the Second Amendment was as a federalist check upon the feared abuse of Congress’ Article I militia power as well as the historical risks associated with a standing army. The Second Amendment like the original understanding of the Establishment Clause in the First Amendment, and the unenumerated rights retained by the Ninth, or the power reserved in the Tenth is as a protection of the state, or the people within a state, as against the federal government. The Second Amendment has no application to the laws and ordinances of the District of Columbia, which are promulgated pursuant to the plenary power of Congress as delegated to the District.

2.  Were the District a state, the Second Amendment would limit the ability of the federal Congress to interfere with the right described therein. What the scope of that right may be is not before the court, however, in this case. While, as indicated, militias at the time of the ratification of the Second Amendment were not all state-managed or -directed, all existing militias nevertheless did depend upon militia-eligible individuals possessing weapons in their homes that would then be made available for purpose of militia service.   

3.  Besides not residing in a state, Mr. Heller is beyond the militia-eligible age as it was understood at the time of ratification, and so he lacks standing to raise a claim in which the court is called upon to define the scope of the Second Amendment.

4.  The court also should not address the question prematurely because the claim presents a difficult issue of constitutional obsolescence. There is no modern equivalent to the state or other militias that existed at the time of the founding where it was either required, or at least expected, that an individual would bring a personal weapon for use during militia service. 

5.  The court should if possible write consistently with the court’s prior decision in Miller and the overwhelming body of case precedent that has assessed the Second Amendment right in terms of whether a militia-eligible person was asserting a right with respect to a class of weapons that would be useful or reasonably expected to be supplied by an individual for militia service.

6.  The opinion should also be written consistently with Justice Scalia’s longstanding admonition that where the court is called upon to enforce implied rights, or describe the contours of a right inferred from the more general or ambiguous language of constitutional text, that it be stated at the most specific level of generality. Said Scalia: “We must always start from the proposition that “the asserted liberty interest [must] be rooted in history and tradition,” and then assess a claim from “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”

Will this judicially restrained result actually be the opinion? Consider one last colloquy:

JUSTICE BREYER [to Heller’s lawyer, Alan Gura]: But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA [to Heller’s lawyer]: You want to say “yes.” That’s your answer.

This is clever oral argument banter, but, of course, unless history is rewritten, the founders cannot be supposed to have justified individual gun possession in support for draft-readiness for a draft that would not exist until the Civil War. And since the historical justification for gun possession bears no relevance to any modern analogue of the actual founding justification (the support of a “well-regulated militia”) that cannot really be Justice Scalia’s answer, can it?


Again, let Justice Scalia speak in his own voice: “Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.  Scalia, 57 U. Cin. L. Rev. 849, 864 (.1989).

That’s all the American people ask for Heller , a judicial result and an opinion faithful to text and history that is “conceptually quite separate from the preferences of the judge himself.”