Originalism and Multiple Narratives in the Court’s Gun Case

Advance warning: I will be using a picture of Mal Reynolds in all my future gun-related posts. Now, to the issue…

First, I’d like to re-emphasize that Heller, the Supreme Court opinion that codified what we already knew about the second amendment, is not a big deal. As Judge Kozinski said, in happier times, “the parties are advised to chill.” Anyone who ranks Scalia’s Heller opinion above his opinion in R.A.V. v. City of St. Paul either doesn’t know their constitutional law, or doesn’t think that defining the first amendment is that important. For God’s sakes, based on Obama’s reactions, the case isn’t even going to be a campaign issue. Scalia crafted a well-written, but uneventful tract on guns in America, incorporating into the U.S. Reporter what politicians (outside of D.C. and San Fransisco) already knew. Move on!

I’ll say this much about the decision: Heller does show us one interesting thing, but it’s not about guns. It’s about about law and constitutional decisionmaking in general. Scalia approached the decision from a textualist, and originalist perspective, breaking down the second amendment line-by-line, and then putting each part of it in historical context. It’s a very good textual decision from that perspective. It’s also a very good originalist decision. In fact, it may be one of the best originalist decisions ever written. The problem is, that doesn’t say much.

Originalism is hailed by conservatives as the best canon of constitutional interpretation, because it is allegedly “objective.” It freezes a moment in time and uses it to govern all future moments. Thus, an originalist judge, ideally, isn’t interpreting so much as mechanically channeling history and applying it to a given fact set. In theory, there can be no “legislating from the bench,” since an originalist judge is bound to the historical narrative. For the originalist judge, the story goes, personal feelings never enter into the picture.

By relying upon history, and calling it “objective,” originalism presumes that there is only one historical narrative. But there are always competing historical narratives. Judges have read the second amendment’s history in precisely the opposite manner that Scalia did – legitimately, too. [1] And academics have never been able to agree on how the historical records speaks. [2] In the (scant) legislative history of the second amendment, one can reach different conclusions by selecting or emphasizing different historical facts. Scalia wasn’t being objective by falling back upon “original meaning”: he was just being less obviously subjective. Thus, at best, originalism is still subjective, because a judge still must choose the historical narrative to credit.

At best. At worst, the historical confusion is so all-encompassing as to make originalism completely useless in constitutional interpretation. In the first amendment context, falling back on originalism would eviscerate the modern understanding of “free speech”: most states banned blasphemy at the founding, and about half of the Founding Generation thought speaking against the government should get you deported. Neither of these perspectives jive with our modern values; they ought not control our society today, and, since all admit that originalism is useless when touching the first amendment, they don’t.

All of this is to say that, essentially, Scalia wrote a good, moderate, political opinion. But let’s put to bed the myth that he, and other originalist judges, make law by objectively channeling the Founders.

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[1] See Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (concluding, after extensive historical review, that the second amendment did not confer an individual right).

[2]: See Akhil Reed Amar, Enduring and Empowering: The Bill of Rights in the Third Millennium: Second Thoughts, 65 Law & Contemp. Probs. 103 (2002).