Saul Cornell on Heller

I may not agree with him on everything, but he is pretty bang on in the American Constitution Society blog post History and 'Heller': The Past as a Two-Edged Sword. I thought about excerpting it, but it's pretty good:

In District of Columbia v. Heller, Justice Scalia engaged in a revisionist exercise, rewriting history to further his ideological agenda. If you have any doubts about this proposition, just consider the following: according to Heller’s logic, it would have been okay for the first Congress to pass a law making muskets illegal in the District of Columbia, but Congress would have been prohibited from banning dueling pistols. Such a conclusion is pretty hard to reconcile with the Amendment’s text and history.

Scalia’s majority opinion is an example of the new originalism. Following the wacky logic of this theory, Scalia argues that the Founding era would not have treated the Amendment’s preamble as the “key to open the mind of the makers” of the text. Instead, Justice Scalia believes that the average competent speaker of eighteenth-century American English would have looked at the text and said, “Yep, we should read this backwards.” (Just try to find a John Marshall decision where he reads a text backwards.) Where does the evidence for this novel technique come from, you may ask? The answer: from legal treatises written in the middle of the 19th century. Either Justice Scalia does not understand that legal thought changed in the tumultuous decades after ratification or he believes in time travel. (I hope it is the latter, since that would be crazy but interesting. The former claim is just intellectually embarrassing.)

 

Heller’s misuse of history borders on the scandalous, but we are pretty much stuck with it. The decision also points to history as the starting point for evaluating gun laws. Of course, this raises the thorny question about which history matters most when seeking to understand the meaning and scope of the right: Founding era, Reconstruction, the last century (or the future—Heller already assumes the existence of time travel—why not)?

 

Some gun rights advocates interpret Heller’s assertion that “constitutional rights are enshrined with the scope they were understood to have when the people adopted them" to mean only laws on the books in 1791 count. This claim about original meaning is seriously flawed. The original meaning of a text is not the same as the original expected application of the text. Indeed, Scalia’s opinion mocks the idea that the right to bear arms would only apply to Revolutionary era muskets; so, if that it is true, it is hard to see how only laws regulating muskets are legal from a constitutional perspective.

 

Finally, gun rights champions ought to be a bit more careful about what they wish for, because sometimes wishes come true. If we froze the Second Amendment’s meaning and scope as of 1791, it would mean no right to stand your ground; no right to carry, in most cases; required government inspection of privately owned firearms; and a host of other regulations. Perhaps we should turn the clock back to 1791 and give gun rights extremists the real historical Second Amendment they crave.

I trust Saul Cornell on this subject far more than some asshole in the internet.