Everything that can be said about DC v. Heller was probably said yesterday, and will probably be said again today, so I’m not sure why I’m bothering with this post. That said:
First off, I am neither enormously pleased nor enormously disappointed with the decision—I’m a flaming liberal, but I also like guns, so my gut reaction to the actual result averages out to “meh.” I’m more interested in the argument itself, and in the spectacle of 157 pages of opinions (on top of untold volumes of academic articles and polemics and amicus briefs and—shudder—blog posts) trying to make sense of one short sentence.
I agree completely with Publius that Scalia and Steven’s dueling opinions, both allegedly originalist, are a great argument against originalism. In this case (as, I imagine, in many other less angry-making ones) I don’t see any reason to think there was any original intent—my takeaway from the existence of more explicit drafts of the 2A was that the result was a compromise specifically intended not to settle issues just like this—and insofar as there was one it’s no longer meaningful, being inextricably grounded in long-since abandoned notions, e.g. that standing armies are bad, that militias composed of more or less all able-bodied men are good, and that those able-bodied men are responsible for providing their own guns. The question “WWJD?”—What Would James Madison Do?—has no answer.
So what we get is, as Jack Balkin writes, “living constitutionalism” pretending to be “originalism.” Actually, I’d be less kind than Professor Balkin: what we get is Justices’ personal preferences pretending to be the results of impartial originalist reasoning. And of course Justices make lousy historians, cherry-picking only the bits that support their (necessarily ahistorical, see above) positions from a large, ambiguous, and confusing historical record. As Sandy Levinson writes:
If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia.