[Marty Lederman]
Because surely not enough has yet been written about the Heller case … I thought I’d weigh in with three fairly discrete observations about it. These remarks in certain respects complement what Akhil Amar and Kenji Yoshino have recently posted.
1. First , there has almost certainly been more textualist and originalist writings-in the briefs, the blogosphere, the law reviews, etc.-about this case than about any other in recent memory. (This is largely a function of the fact that there is so little Supreme Court doctrine on point, and thus an argumentative void that could easily be filled by appeals to text and original meaning.) Yet in my unscientific small survey, I’ve yet to find even one observer of the court who thinks that textualist and/or originalist arguments will have the slightest effect on the vote of even a single justice in the case … just as in most other constitutional cases (such as the Sixth Amendment right to counsel case argued this morning), in which such arguments are window dressing, at best.
Now, of course this would not be the case if the text or original intent (or original “meaning”) pointed unequivocally in one direction or the other. But as Mark Tushnet’s terrific, concise volume demonstrates, they don’t. Or, in any event, and as Akhil Amar emphasizes, the text and original understanding surely do not unequivocally point in the direction of securing an individual right to own a handgun for purposes of self-defense against other private parties . (That’s why, as Doug Kmiec notes , Heller supporters such as Nelson Lund (see Part IV of his brief ) so quickly fall back upon fairly vague and very general Blackstonian notions of a natural right of self-defense.)
I therefore agree with Akhil that the justices are much more likely to decide the case not upon evidence from text or original understanding of the Second Amendment (although such matters will undoubtedly pepper their various written opinions), but instead based upon whether they are persuaded that (in Akhil’s words) “Americans have established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected; basic rights [that] are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low.”
As noted below, however, I’m less certain than Akhil which way such a consideration will (or should) cut with respect to D.C.’s restrictions in the Heller case, because it turns out the district does not prohibit the use of all firearms for self-defense in one’s home.
