Josh Blackman (George Mason University - School of Law) has posted Originalism for Dummies, Pragmatic Unoriginalism, and Passive Liberty: An Originalist Critique of the Heller Dissents and Judges Posner's and Wilkinson's Unoriginalist Assault on the Liberty to Keep and Bear Arms on SSRN. Here is the abstract:
In a 5-4 opinion written by Justice Antonin Scalia, District of Columbia v. Heller was a landmark case that recognized the individual right to keep and bear arms under the Second Amendment. This case generated vast waves of controversy. In addition to vigorous dissents from Justices Stevens and Breyer, Judges J. Harvie Wilkinson III and Posner also wrote stinging rebukes of this case. The purpose of this article is not to dissect Heller, or anticipate how future Second Amendment cases will be resolved after Heller. Rather my aim is to explore the jurisprudential archetypes exemplified in the Heller dissents, as well as in the articles from Judges Posner and Wilkinson, and analyze how these philosophies fail to protect our liberty.
The article proceeds as follows. In Part I, I provide a brief sketch of the majority and dissenting opinions in District of Columbia v. Heller, as well as the articles from Judges Posner and Wilkinson. Next I explain the relevance of focusing on common law history when deciding Constitutional cases, and introduce the jurisprudence of originalism.
In Part II, I focus on Justice Stevens's dissent in Heller. Justice Stevens fails to consider the history behind the Second Amendment, including centuries of common law history from the Magna Carta, through the English Bill of Rights, until the Revolutionary War. Further, Justice Stevens fails to recognize the recent outpouring in original scholarship on the history of the Second Amendment. Rather than ascertaining the original public meaning, he focuses almost exclusively on the drafting history, and improperly attempts to guess the intentions of our framers. Relying on what I have termed the Seven Dirty Words of Intentionalism leads his analysis astray. His opinion is guilty of what I have dubbed, tongue-in-check, Originalism for Dummies.
In Part III, I trace the history of our fundamental liberty to keep and bear arms from the dawn of our Republic, through the Antebellum South. The right to keep and bear arms was a vital protection for freedmen in the face of the Klan and the Jim Crow South, and was an essential element of debates surrounding the ratification of the Fourteenth Amendment. The individual rights interpretation of the Second Amendment persisted until the mid-twentieth century. This break in history created the line of precedents that led up to Heller.
In Part IV, I discuss Justice Breyer's dissent. Applying his own active liberty framework, I will show that Justice Breyer should be eager to protect the right to keep and bear arms and the second amendment, much like he does many other ancient liberties. Yet, based on his unbalanced and skewed balancing test, he unsurprisingly does not deem the liberty to keep and bear arms worthwhile for judicial enforcement. I explore this inherent contradiction to reveal that in many cases, active liberty is a codeword for mere opportunism.
In Part V, I analyze Judge Posner's pragmatically unoriginalist critique of Heller. Judge Posner fails to properly grasp the original public meaning branch of originalism. Rather, he seeks to redefine originalism based on his own "loose construction" version of pragmatism. Further, Judge Posner argues that the Second Amendment should mean one thing in an urban area, and a different thing in a rural area. Such an arbitrary definition of liberty does not comport with the nature of our Constitution. Finally, Judge Posner disregards originalism as a jurisprudence because judges are not historians, and can only engage in "law office history." However, this discounts the impact that professional historians have on originalist analyses. In addition, in many other contexts judges are forced to reply on experts (intellectual property, securities cases, etc.). Originalism should be no different.
In Part VI, I focus on Judge Wilkinson's more nuanced critique of Heller. I take on his argument that the political process should be responsible for protecting the right to keep arms, and show how this view does not comport with modern Constitutional jurisprudence, and Footnote Four of Carolene Products in particular. Further, I disagree with Judge Wilkinson about the Second Amendment being an "ambiguous" right, and argue that it deserves the same protections as other liberties in the Bill of Rights. I conclude with a brief discussion of liberty and the right to arms.
My take on Heller and originalist theory can be found here.
