The “originalist” decision in D.C. v. Heller did not hinge on the “original meaning” of the Second Amendment.
Photo: Barack Obama, John Roberts, John Paul Stevens, Ruth Bader Ginsburg, Clarence Thomas, Stephen Breyer and Joe Biden.
(Courtesy of Pete Souza/The White House)
- The doctrine of originalism
- Madison and the Second Amendment’s original meaning
- Originalism in judicial practice
- Originalism in D.C. v. Heller
- Politics of originalism
- Shrouding the politics of judicial decision-making
There were 310,000,000 registered guns in the United States in the year 2009, almost one for every resident. In that same year, there were 11,078 homicides-by-gun and 19,392 suicides-by-gun., Guns and gun policy in the U.S. are divisive political issues that face extremist ideological pressures from gun owners, gun manufacturers and public health advocates. Decisions, both legislative and judicial, are political, and even incidents of mass gun violence have not incentivized policymaking solutions to said violence. In 2012, twelve people died and 58 were injured, including a Navy sailor and six-year-old girl, when a gunman opened fire in an Aurora, CO movie theater. Twenty young children and six adults, many educators, were killed in the December 2012 Sandy Hook Elementary School shooting.
In 2008, the Supreme Court decided on District of Columbia v. Heller, which affected gun law and policy in the U.S.; the author of the majority opinion was Justice Antonin Scalia, the first ‘originalist’ confirmed to the Supreme Court, and the opinion overturned decades of precedent that supported gun regulation. The core issue was the petitioner’s charge that the effective ban on handguns in Washington, D.C. amounted to the government’s usurpation of an individual’s Second Amendment rights. The final section of the majority opinion states: “Handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
The retail cost of an “inexpensive, low-caliber” handgun is often $75 or less. Since D.C. v. Heller determined that the Second Amendment provides lawful citizens the right to purchase a handgun, any lawful citizen has the right to buy a lethal weapon for less than 100 dollars. According to a 2011 study by the City of New York, 40 percent of U.S. gun sales occur through unlicensed ‘private’ sellers, or “those who are not ‘in the business’ of selling firearms,” at gun shows and online. These ‘private’ sales often occur without background checks or government regulation.
The “original meaning” of the Second Amendment does not provide an individual right to purchase and ownership of a handgun. I use Scalia’s definition of originalism. I conduct a historical review of a reasonable “original meaning” of the Second Amendment using research by Cass Sunstein and Saul Cornell, and James Madison’s writings from the 1780s and 1790s. I examine originalism in judicial practice, particularly concerning D.C. v. Heller. I explore the politics of originalism and the context of its judicial ascendance.
The doctrine of originalism
Originalism is an ideology of constitutional interpretation and judicial decision-making prevalent on the federal bench, including with some justices of the Supreme Court. The Court decides major cases using the doctrine of originalism, such as Citizens United v. Federal Election Commission, NFIB v. Sebelius, McDonald v. Chicago, and, particularly, District of Columbia v. Heller.,
The first major proponent of originalism on the Supreme Court was Antonin Scalia. Appointed in 1986, Scalia continues to champion originalism on the Court, writing majority opinions from an originalist perspective. Clarence Thomas, appointed in 1991, is another originalist on the Court, more conservative than Scalia, and, according to NPR, the most conservative justice since the 1930s. His voting record shows that he has a clear direction for the Supreme Court, and it is conservative: he supports allowing states to establish official religions; believes campaign contribution disclosure is unconstitutional; and wants to return to the Lochner era of judicial invalidation of business and labor regulation. He also draws all of these opinions from what his defenders see as “the original meaning of the Constitution when it was adopted in 1789.”
Scalia, in 1996, stated that judicial originalism “gives [the Constitution] the meaning that its words were understood to bear at the time they were promulgated. [Originalists] take the words as they were promulgated to the people, and… the fairly understood meaning of those words.”
James Madison and the original meaning of the Second Amendment
The wording of the Second Amendment is ambiguous; it states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The first clause refers to a “well regulated Militia,” and the second clause is dependent on the first for existence. The “original meaning” of the Second Amendment is to protect the right of the people to bear arms when they form a regulated militia.
According to Cass Sunstein, “Many historians have concluded… that the Second Amendment did not create an individual right to use guns.” This is essential because historians must be the final arbiters of original meaning. If the constitutional historians, many of who have read the writings of the Founding Fathers, find that the original meaning of the Constitution did not create an individual right to bear arms, then originalist justices must follow that proscription. For example, a key protection touted by defenders of gun rights is for hunting, however, Saul Cornell finds that, originally, the “[Second Amendment] ‘did not cover… hunting’ at all.” The Court did not originally protect core modern-day protections of the Second Amendment in the 1790s through original meaning, which means that at least some of the case law on the Second Amendment is not originalist. While the original meaning of the Second Amendment did not protect an individual’s right to hunt with a firearm, the D.C. v. Heller decision focused on self-defense.
Saul Cornell shows that the original meaning of the Second Amendment was not to enshrine an individual constitutional right to self-defense, but a civic duty for the common defense. Cornell states:
[The] original understanding of the Second Amendment was neither an individual right of self-defense or a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.
This understanding can only be gleaned from historical and contextual readings of the writings of the congress proposing the Bill of Rights and those of the Founding Fathers. The Annals of Congress and Madison’s writings show that Madison took hundreds of proposed amendments from the several states and condensed them into the Bill of Rights. The proposals that became the Second Amendment came from a fear of a standing federal army and a need for civil defense, not a need for individuals to be able to prevent federal tyranny or provide for their self-defense.
James Madison compiled the Bill of Rights from proposals of the several states, and, in his speeches and writings, he never refers to a right of an individual right to self-defense by firearm. In James Madison’s speech “Proposed Amendments to the Constitution,” he outlines the summation of his proposed changes to the Constitution. About halfway through the speech, Madison arrives at what we call the Bill of Rights. The second item in the list begins, “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country” however, it continues, “but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” This indicates that Madison’s understanding of the right to bear arms occurred when an individual was compelled to “military service.” He initially provides a religious exception to what would become the Second Amendment. If there were an individual right to bear arms, then the religious individual would make the choice not to bear arms, and a religious exception would be unnecessary.
In “Federalist No. 46,” Madison addresses the fear of a standing federal standing army before the creation of the Bill of Rights. He suggests that, if the U.S. government created a “regular army,” that the state governments with the people on their side “would be able to repel the danger.” He draws up a comparison, stating that the U.S. Army would have no more than twenty-five or thirty thousand men, and would be opposed by a militia “amounting to near half a million of citizens with arms in their hands…united and conducted by governments possessing their affections and confidence.”Even before the Bill of Rights, Madison was defining the right to keep and bear arms as one derived from membership in and duty to a state militia, and not as an individual right to self-defense. The contemporary debate in 1789 was one of federal versus state power, not a diminishing of the freedom of the individual. The original meaning of the Second Amendment may have been to place the right to bear arms with the states and their militias in order to protect against a standing army. Nevertheless, with the U.S. in possession of the largest standing military in the world, this context does not apply to modern debates.
Originalism in judicial practice
Originalism often appears early in majority opinions to define the theory, and then the writer defines or implies original meaning and uses that to justify legal decisions. For example, Scalia writes in D.C. v. Heller that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary… meaning.” This is an exceptionally complicated method of legal justification, and includes a deterministic definition of “normal and ordinary meaning” that could not possibly be uniform across all of the Founding Fathers, never mind every single voter in 1789. As many actors interpret the normal meaning of modern legislation in many ways, the normal meaning of the Constitution was not uniform. By applying a uniform idea of “normal meaning” to the Constitution, originalist judicial practice attempts to advocate for modern political outcomes by naturalizing their interpretation of the Constitution as the “original meaning” of the document.
In addition, in that same decision, Scalia excludes “secret or technical meanings” because the ordinary citizens in the founding generation would not have known them. However, the U.S. legal system and interpretations of the Constitution have gotten increasingly technical, and U.S. laws often surpass the thousand-page mark. The technical meaning may be the truest interpretation of the intent of the Founders, but that is lost to original meaning as interpreted by the ordinary citizens of the time, many of whom were unable to vote, uneducated and illiterate.
Originalism in D.C. v. Heller
Originalism was the judicial basis for the District of Columbia v. Heller decision that overturned the Washington, D.C. ban on handguns. In D.C. v. Heller, Scalia, writing for the majority, states that the law “totally bans handgun possession in the home” and requires a trigger lock, which renders the gun inoperable. He then immediately moves to state, “The inherent right of self defense has been central to the Second Amendment right.”  Throughout his opinion, Scalia provides little historical evidence that the “original meaning” of the Second Amendment includes any individual right to self-defense, and then he states that the entire reason to overturn the handgun ban is to protect that right. Scalia may be correct; court precedent may show that the right of self-defense has been essential to the Second Amendment, but court precedent and original meaning of the Constitution are radically different. If self-defense is inherent to the Second Amendment right, then that is due to stare decisis, not original meaning.
A conservative talking point finds that D.C. v. Heller and McDonald v. Chicago incorporated an unlimited right to individual gun ownership from the Second Amendment to the states. However, Scalia takes pains in D.C. v. Heller to implore that there are many limits on the individual right to gun ownership. This may be the core misunderstanding of guns and judicial decisions today. While Scalia and Thomas do not agree, many conservative pundits and voters bloviate that these latest decisions, and worse, the original meaning of the Second Amendment provides an unlimited individual right to bear arms in the U.S. From this debate, it is clear that conservatives citing Heller as evidence of an unlimited right have not read the case law. Scalia explicitly states in the third section of the majority opinion, “Like most rights, the right secured by the Second Amendment is not unlimited.” Instead of citing original meaning as proof, Scalia cites precedent “from Blackstone through the 19th-century cases,” which shows that Scalia did not use original meaning, but again used stare decisis.
A major assertion that Scalia did not use true originalism in the D.C. v. Heller decision comes from Cass Sunstein, who states, “But the subtlety, nuance, acknowledgement of counterarguments, and (above all) immersion in Founding era debates, characteristic of good historical work, cannot be found in Heller.” “Immersion in Founding era debates” is the core tenet of originalist judicial doctrine because without it there is no way to determine the original meaning of the Second Amendment. As Sunstein stated, the “good historical work” is nowhere to be found in Heller. Historians in favor of both the petitioners and respondents submitted amici curiae briefs to the Supreme Court for theHeller case, but that historical context was lost in the formulation of the majority opinion.
Politics of originalism
With all of this discussion of judicial theory, originalism as a theory uses political means to justify political ends. Judicial decisions, which many Americans believe are impartial, are usually political decisions made for political reasons. When Ronald Reagan nominated Scalia for associate justice in 1986, the New York Times reported that Scalia was a “favorite” of the Federalist Society. The Times continued to say that the, “Federalist Society provides a good opportunity for us to get to know people who share the conservative constitutional perspective of the AG and the president.” Reagan appointed Scalia to the D.C. Circuit in 1982 and then appointed him to the Supreme Court in 1986. Reagan also appointed Stephen Markman to head the Department of Justice’s Office of Legal Policy (OLP).
Markman’s work continues to perpetuate originalist judicial doctrine in the federal courts. He wrote two official OLP reports titled “The Right to Keep and Bear Arms” and “Original Meaning Jurisprudence,” which are sourcebooks for conservatism on the Second Amendment and original meaning. Markman has stated, “Reagan had certain judicial values he wanted institutionalized on the bench.” And Reagan got what he wanted: Scalia, Thomas and Samuel Alito, appointed by Bush in 2006, perpetuate originalism on the bench and in 5-4 majority opinions during each session of the Court. To an extent, Chief Justice John Roberts, appointed in 2005 by Bush, has perpetuated the theory of originalism in opinions and through case selection, as he is the one who pushed D.C. v. Heller and Citizens United v. FEC to the top of the agenda in 2008 and 2010, respectively.
According to the OLP’s Guidelines on Constitutional Litigation, originalism justifies changing years of precedence and established constitutional law. The document states: “The inclusion of an original meaning section in government briefs will help focus judges on the text of the Constitution and away from their personal preferences or from incorrectly reasoned court precedent as the appropriate basis for decisionmaking.” This statement strongly implies that almost 200 years of court precedent has been incorrectly reasoned on the basis that it did not account for the original meaning of the Constitution. The political motivations for this are clear: through originalism, conservatives can expunge decades of court precedents that favor government regulation of guns, the economy, business, campaign finance and many of the core policy issues that face a modern industrialized nation. In fact, Siegel states that, while the majority presents the individual right of self-defense as the Second Amendment’s original meaning, the majority opinion “draws upon evidence that may incorporate understands that emerged long after the founding.” As Scalia states in his opinion,Heller does not cast doubt on prohibitions on possession by felons or the mentally ill, nor in sensitive places, nor on the conditions for commercial sale, but these prohibitions were never an original public meaning of the Second Amendment. Scalia incorporates modern political theory and public opinion throughout Heller, which, when backed up by scholarly analysis, shows that originalism often ignores or modifies original meaning.
Shrouding the politics of judicial decision-making
Originalism attempts to shroud ideological judicial decision-making by naturalizing it through the doctrine of “original meaning.” It replaces precedent, common law and case law with judicial interpretation of the textual meaning of the Constitution, and many originalist theorists argue that nearly 200 years of court precedent has been “incorrectly reasoned.” Originalism is a plain attempt to institutionalize conservative judicial theory in the legal system and Constitutional interpretation.
With 30,000 gun deaths per year and nearly one gun per capita in the U.S., gun policy is a major policy issue facing the federal government and the states. The doctrine of originalism purports to give the Constitution the public meaning it had at the time of its ratification in 1789. Supreme Court justices like Antonin Scalia and Clarence Thomas are avowed originalists, and use originalist judicial doctrine to write opinions for the court, such as Scalia’s majority opinion in the D.C. v. Heller decision. However, these decisions often do not include an adequate historical analysis of the writings of the Founders or of the Founding era and many historians find that the “original meanings” used by Scalia and other originalists are not the contextually accurate “original meanings” of the Constitutional articles or the several amendments. An analysis of James Madison’s writings shows that the Second Amendment’s meaning derived more from a civic duty to state militias than from any individual right to self-defense by firearm. Much of the ascendance of originalism as judicial theory comes from the Reagan administration’s mandate through the Office of Legal Policy of “original meaning sections” in all government briefs, which shows a clear political motive for normalizing the doctrine of originalism.
Barnett, Randy E. “The Gravitational Force of Originalism.” Fordham Law Review 82 (2013): 411-32. Web.
City of New York. “Point, Click, Fire: An Investigation of Illegal Online Gun Sales.” New York City. December 2011. Web.
District of Columbia v. Heller, 554 U.S. 570. Supreme Court of the United States. 2008. Cornell University Law School. Web.
Hamilton, Alexander, John Jay, and James Madison. 1788. The Federalist Papers. Comp. Kathleen M. Sullivan. Chicago, IL: ABA, 2009. Print.
Johnson, Amanda D. “Originalism and Citizens United: The Struggle of Corporate Personhood.” Rutgers Business Law Journal 7 (2010): 187-210. Web.
Krouse, William J. “Gun Control Legislation” Congressional Research Service. Congressional Research Service, 14 Nov. 2012. Web.
Siegel, Reva B., Nelson Lund, and Cass Sunstein. The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller. Ed. Saul Cornell and Nathan Kozuskanich. Amherst & Boston: University of Massachusetts, 2013. Print.
Totenberg, Nina. “Clarence Thomas’ Influence On The Supreme Court.” All Things Considered. NPR, 11 Oct. 2011. Web.
 Krouse 2012, 8
 CDC. “FastStats: Homicide.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, 30 May 2013.
 CDC. “FastStats: Suicide.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, 30 May 2013.
 CBS/AP. “The Aurora Shooting Victims.” CBSNews. CBS Interactive, 23 July 2012.
 District of Columbia v. Heller 2008, 58
 Krouse 2012, 9
City of New York 2011, 2
 Johnson 2010, 187
 Barnett 2013, 412
 Totenberg 2011, 1
 Ibid., 1
 Scalia, “A Theory of Constitution Interpretation,” speech at Catholic University, 10/18/96
 US Constitution, Second Amendment, 1789, Print
 Sunstein 2013, 262
 Ibid., 262
 Sunstein 2013, 262
 Annals of Congress, 1789, 1st. Cong., 1st sess., 451
 Madison 1788, “Federalist No. 46”
 With the Whiskey Rebellion, for example, it is clear that the federal government was opposed to the use of arms and violence to achieve political goals. The Whiskey rebels were not a “well-regulated militia.”
 District of Columbia v. Heller 2008, 3
 District of Columbia v. Heller 2008, 3
 It was difficult to determine an exact figure for illiteracy in the 1790s, but an estimate by Kenneth Lockridge in Literacy in Colonial New England (1974) put the figure for New England, the area of the country with the highest level of public education, at 90 percent for men and 48 percent for women.
 District of Columbia v. Heller 2008, 56
 Ibid., 56
 District of Columbia v. Heller 2008, 54
 Ibid., 54
 Sunstein 2013, 263
 Siegel 2013, 100
 Ibid., 100
 Ibid., 100
 Siegel 2013, 101
 Ibid., 82
 District of Columbia v. Heller 2008, 54