Second Amendment Case Comment 122 Harv. L. Rev. 191

Dead or Alive: Originalism as Popular Constitutionalism in Heller



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 forebears. 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.