UCLA Law Professor Adam Winkler interviewed on the Heller Case's "Fallout"
Q: Much of the literature on Heller talks about this case being a triumph for "originalism" or an originalist interpretation of the Constitution. Can you talk a little bit about the concept of originalism and how it applies in this case?
Winkler: Well, originalism is basically the idea that you'll define the meaning of a constitutional provision by reference to the original public understanding of the provision -- what the ordinary person would have understood that provision to mean in its time -- in contrast with living constitutionalism, the idea that these provisions evolve and keep up with changes in the underlying society.
Certainly, in one sense this case marks the triumph of originalism. There were over 70 amicus briefs filed in the case. Almost all of them employed originalist methodology to define what the right protected by the Second Amendment was. The Supreme Court goes on for pages and pages and pages parsing the history of the Second Amendment and what the framers and the American people might have understood the provisions to mean at the time. And even the dissent talks in originalist terms about what the intention of the framers was.
However, I think that the majority opinion by Justice [Antonin] Scalia departs radically from originalism where it really counts and where it really matters. The real question about the Second Amendment is what laws are prohibited and what laws are allowed under that constitutional provision. That's where the Second Amendment rubber hits the road. And on this question the court eschews originalism and focuses on what seems to me like living constitutionalism. The court says, 'Well, we don't mean to call into question longstanding bans on felons in possession of firearms or bans on guns in sensitive places or restrictions relating to the purchase and sale of weapons.' And the court also refers to an earlier opinion that bans on dangerous and unusual weapons are not barred by the Second Amendment. But all of these things are stuff that comes not from the original public meaning of the Second Amendment but from the traditions of American law since then. These kinds of laws are products of later generations, not of the founding generation.
And the court, even with regards to this handgun ban... says the ban involved in the District of Columbia case was unconstitutional in part because this was a very commonly used weapon, in contrast to, say, a machine gun, which is not commonly used or commonly possessed. But that's completely a function of changes in society, not the original public meaning. Handguns are popular because they've not been banned in very many places. Machine guns have been banned almost everywhere in America, so they are much more unusual. It's the very fact that law has restricted the market for machine guns that makes them so unusual. So, what is common and what is unusual is not a function of the original public meaning for Scalia, but a function of what America has allowed in the years since.
I guess that I always wondered what the people who wrote the Second Amendment would have to have written if they really meant the phrase "shall not infringe."