Document Type

Article

Publication Date

2009

Abstract

Has originalism won? It's easy to think so, judging from some of the reaction to the Supreme Court's recent decision in District of Columbia v. Heller.1 The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court's history that a gun control law violated the Second Amendment, Justice Scalia's opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he has helped to popularize. More surprising to most observers, the dissenting opinion of Justice Stevens also seemed to be in the originalist tradition. 2 Hence the claim advanced by some in the decision's wake that "we are all originalists now."3

If that claim is true, it is profoundly important to the future of constitutional law. Originalists believe that judges generally should prioritize the original understanding of constitutional provisions over contemporary understandings that avail themselves of social and intellectual progress. Since this is not how constitutional law has been made for much of our history, a serious commitment by the Supreme Court to originalism would destabilize some of our most familiar and cherished political traditions. If the claim is not true, then constitutional lawyers, particularly progressives, must take care to separate the rhetoric of originalists from the impact of originalism on actual constitutional cases.

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