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Court hints originalism may be doomed

By Noah Feldman

Antonin Scalia

Antonin Scalia

The late Supreme Court Justice Antonin Scalia was best known for his philosophy of originalism, a method of interpreting the Constitution that relies on analyzing the original meaning of the text. On March 21, the court gave its first hint about the fate of originalism on the post-Scalia court: Its survival isn’t assured.

In a two-page, unsigned opinion, the court unanimously reversed a ruling by the top court of Massachusetts that stun-gun ownership isn’t protected by the Constitutional right to bear arms. The Massachusetts Supreme Judicial Court had taken the originalist view that stun guns aren’t covered by the Second Amendment because they didn’t exist when the amendment was enacted and aren’t weapons used by the militias mentioned in the famously eccentric text.

The Supreme Court’s rejection of that interpretation suggests a turn toward an approach that focuses more on following legal rules laid down by previous opinions than on drawing analogies from historical research, the essence of originalism. It was the latter analytic method that led Scalia to his landmark 2008 gun-rights opinion, District of Columbia v. Heller, which established an individual’s right to own guns.

To see the significance of Monday’s two-pager, you have to turn back to Heller. In announcing and defining a right to own handguns, Scalia self-consciously emphasized the original history of the Second Amendment. He performed what he called a “review of founding-era sources,” and analyzed each clause of the amendment in its historical context.

In deciding which weapons should be considered “arms” — the question at issue in the stun-gun case — Scalia also used originalist history. Quoting an earlier decision that was itself relying on a history book, he wrote: “In the colonial and revolutionary war era, weapons used by militia men and weapons used in defense of person and home were one and the same.” From this Scalia distilled a rule, namely that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

In its stun-gun decision, the Massachusetts court quoted this language from the Heller opinion, and inferred from it that “the questions whether a weapon is ‘unusual’ and whether the weapon was ‘in common use at the time’ of enactment are interrelated.” It concluded that because “there can be no doubt that a stun gun was not in common use at the time of enactment,” that “it is not the type of weapon that is eligible for Second Amendment protection.”

In Monday’s order, the Supreme Court made short work of this interpretation. It quoted a single sentence from Heller: “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” In this passage, Scalia was rejecting the argument that only weapons that existed in the 18th century were protected by the Second Amendment — an argument he called “bordering on the frivolous.”

Based on the single sentence from Heller, the court said that “the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent.”

The effect of the court’s holding is to ignore the main body of the Heller opinion, which engaged in detailed historical analysis of the meaning of the Second Amendment, and to focus instead on the rule that Scalia derived from that analysis.

That’s significant. After all, Scalia did say in the Heller opinion that the limitation of the amendment’s reach to weapons “in common use at the time” was “fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” In contrast to this rather nuanced formulation, the Supreme Court rejected the idea that unusualness could be defined by reference to 18th-century use.

Even the separate concurrence by Justice Samuel Alito, joined by Justice Clarence Thomas, used Heller as a place to find rules to apply.

Lest you think that the only explanation for the opinion is that the court wants to protect weapons, notice that no justice dissented. Liberals as well as the conservatives were ready to say that the Massachusetts court had flouted precedent. That conclusion makes sense insofar as both liberals and conservatives were focused on Heller’s rule, not Scalia’s originalist logic.

It’s possible that the justices meant only to say that the Massachusetts court was doing simplistic originalism, maybe even originalism in bad faith, in concluding that a stun gun was an unusual weapon because it didn’t exist in the 18th century. In this view, the court’s weak or pseudo-originalism was so close to the view Heller rejected as near-frivolous that even the court’s liberals were happy to vacate it.

My answer to that is simply to ask what test the Massachusetts court was supposed to use? As written, Heller would seem to call for some kind of an originalist analysis of whether a stun gun is comparable to weapons “in common use at the time” of the amendment.

True, that analysis requires analogy, not simply asking whether the stun gun had been invented. But the Supreme Court didn’t say so in rejecting the Massachusetts court’s holding. It just said the court had failed to follow precedent, strongly implying that it should use a rule-based analysis rather than an historical, originalist one. It seems probable that a similar fate awaits other originalist opinions. The court won’t announce openly that originalism is bunk, in the way that Justice Oliver Wendell Holmes once did. But it can gradually abandon originalism by treating originalist holdings as ordinary doctrinal rules.

On the current court, only Thomas is a committed originalist. For the rest of the justices, this aspect of Scalia’s constitutional legacy may be sloughed off and forgotten.


  1. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

  2. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about.

    The States still retain their rights to this day to defy the federal judiciary, which has become an oligarchy. We just need strong statesmen as governors and legislatures to make that stand! The people will get behind those that will take the stand, but we must first seek out those willing to put all they are on the line for the sake of freedom, not necessarily a political future.
    “Perhaps even more disturbing is that the voters who feel strongest about overriding the federal courts – Republicans and conservatives – are those who traditionally have been the most supportive of the Constitution and separation of powers,” reports Rasmussen. “During the Obama years, however, these voters have become increasingly suspicious and even hostile toward the federal government.”

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

    Freedom Outpost

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