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COMMENT:
DEAD OR ALIVE: ORIGINALISM AS POPULAR CONSTITUTIONALISM IN HELLER
by Reva B. Siegel [ Full Text
] |
| 122 Harv. L.
Rev. 191 (2008) |
| The
Court’s announcement in 2008 that the Second Amendment, ratified in 1791, protects
an individual’s right to bear arms against federal gun control regulation was long
awaited by many, long feared by others. What produced this ruling and what might it
reveal about the character of our constitutional order? For many, constitutional law
changed because the Court interpreted the Second Amendment in accordance with the
understandings of the Americans who ratified it: Heller marks the “Triumph
of Originalism.” Others saw the case very differently, observing that the Court had
interpreted the Second Amendment in accordance with the convictions of the
twentieth-century gun-rights movement and so had demonstrated the ascendancy of the
living Constitution. The two accounts of the decision stand in some tension. One views
Heller’s authority as emanating from the deliberations of eighteenth-century
Americans, while the other views the constitutional debates of twentieth-century
Americans as decisive. |
| What kind of
authority did the Court exercise when it struck down the District of Columbia’s
handgun ban as violating the Second Amendment? On the originalism view, the Court is
merely enforcing the judgments of eighteenth-century Americans, who, in an epochal act of
constitutional lawmaking, ratified a Bill of Rights that forbids handgun bans such as the
District of Columbia’s. On the popular constitutionalism view, the Court
itself is deciding whether handgun bans are consistent with the best understanding
of our constitutional tradition; the determination is made in the present and responds to
the beliefs and values of living Americans who identify with the commitments and
traditions of their forbears. In the first case, the Court stands above the fray,
disinterested, merely executing the commands of Americans long deceased. In the second
case, the Court is normatively engaged in matters about which living Americans
passionately disagree, enforcing its own convictions about the best understanding of a
living constitutional tradition to which Heller contributes. On this account,
Heller, through its originalism, participates in what Justice Scalia refers to in
his Lawrence dissent as “the culture war.” |
| Relating
these two competing accounts of the opinion, this Comment shows how Heller’s
originalism enforces understandings of the Second Amendment that were forged in the late
twentieth century through popular constitutionalism. It situates originalism’s
claim to ground judicial decisionmaking outside of politics in the constitutional
politics of the late twentieth century, and demonstrates how Heller respects
claims and compromises forged in social movement conflict over the right to bear arms in
the decades after Brown v. Board of Education. |
| The
Court’s judgment in Heller will exert authority as law, to the extent that
its account of the original understanding can sustain intergenerational identification.
As the rift in the Heller Court testifies, struggle over the meaning of
constitutional memory is a medium through which community in disagreement is forged. Long
public struggle endowed memories of the founding with significance for living Americans
and assembled a Court to recover them; but that Court and the nation to which it speaks
remain, visibly, riven. In 2008, the Supreme Court, the Republican Party platform, and
the Democratic Party platform all recognize that the Second Amendment confers some form
of individual right. Yet, at the dawn of the twenty-first century, the scope of this
right and its constitutional implications remain to be decided. [ More ] |
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