Carlton F. W. Larson (University of California, Davis - School of Law) has posted Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit on SSRN. Here is the abstract:
This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller. Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: laws disarming felons; laws disarming the mentally ill; laws prohibiting the possession of firearms in sensitive places; and laws regulating the commercial sale of firearms. The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ. The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny. Accordingly, some lesser standard of review of firearms regulation must apply.
And from the paper:
Originalists have also emphasized a distinction between constitutional interpretation, which uses originalist methods to determine the linguistic meaning of constitutional text, and constitutional construction, which employs other methods to generate operative meaning in situations in which the text is unclear.14 As Professor Lawrence Solum, a leading proponent of this distinction, has emphasized, the Heller Court may well have used originalist methods of interpretation to determine the core meaning of the Second Amendment, while leaving the issues addressed by the exceptions to the more challenging task of constitutional construction.15 Under this view, there is little conflict between the bulk of the Court’s opinion and the exceptions, because they can be justified under different, although complementary, methodologies.
This is an intriguing and fascinating argument. I am not persuaded, however, that this explains exactly what the Court had in mind in Heller. The Court’s claim about the need to “expound upon the historical justifications for the exceptions”16 in a later case seems inconsistent with a stark interpretation/construction dichotomy. Moreover, Justice Scalia, the author of the opinion, has not generally embraced such a distinction; his methods are much closer to identifying “original expected applications,” working at a very specific level of detail.17 Accordingly, this Part analyzes the exceptions as a Scalian originalist would, by seeking to identify historical predicates and justifications for the exceptions announced in Heller.
As I understand it, Larson's observation is that Scalia's opinion in Heller suggests that Scalia believes that historical analysis could be used to determine what regulations are consistent with the "right to keep and bear arms." Here is the paragraph that Larson quotes:
Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment , one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879) , our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
I'm not quite sure what Scalia meant here, but I agree with Larson that this passage suggests that Scalia may believe that an originalist methodology could resolve issues like the consistency of restrictions of gun ownership or possess by felons. And I agree that Justice Scalia sometimes seems to rely on "original expectations" in a way that is inconsistent with his emphasis on "original public meaning." One possibiity is that Scalia's position might be reconstructed as an attempt to develop an originalist approach to constitutional construction--where type-type identity relationships between contemporary practices and historical practices would operate as a constraint on constitutional construction. This would make historical practice a key factor in constitutional construction. (I hope readers will forgive me for not elaborating on remarks that are undoubtedly too sketchy and perhaps cryptic.)
Read Larson! Highly recommended.
