The early reaction to District of Columbia v. Heller has focused (as it should) on the the implications of the decisions. Because Heller did not adopt a "test" or "standard of review," its implications beyond the few city ordinances (Chicago & San Francisco, for example) that may be the functional equivalent of the DC ordinance are uncertain. But in addition to the speculation and tea reading, many commentators have observed that Heller may have broader implications for constitutional theory in general and originalism in particular. The Heller majority explicitly endorsed "original public meaning originalism" (or the "New Originalism," as it is sometimes called.
This is the first in a series of posts that address the relationship between Heller and originalism. As each post is added to the series, I will update this post with the titles of and links to the various parts.
Heller and Originalism, Part I: An Introduction to the Series
Heller and Originalism, Part II: The Emergence of the New Originalism
Heller and Originalism, Part III: Interpretation and Construction
Whatever you think about the opinions and outcome in Heller, one think is clear. Heller is a decision that will be studied, debated, and discussed for decades. The opinion of the Court by Justice Scalia provides the clearest expression of public meaning originalism to be found in a Supreme Court decision. Justice Stevens opinion provides both a defence of constitutional stare decisis and a development of original intentions originalism. Justice Breyer's opinion provides a model of the post-realist interest-balancing approach to constitutional practce. Add to this, the obvious fact that Heller represents the very rare circumstance of the Court making its first major pronouncement on a constitutional provision some two-hundred years after its adoption, and you have the recipe for a case that is sure to enter the canon of decisions that are the focal points for constitutional theory. Heller, like Brown v. Board, Lochner v. New York, The Slaughterhouse Cases, and Roe v. Wade, is the kind of case upon which every major constitutional theory and theorist must take a position. Undoubtedly, judgments about the significance and substance of Heller will change in each generation. There may come a day when it is considered obviously correct, or even a time when it is considered the paradigm of a bad decision, but unless it is overruled in short order, it seems unlikely that Heller will ever be viewed as trivial or insignificant.
