Is Heller an Original Meaning Decision?

Slate's blog on legal issues.
July 2 2008 9:39 AM

Is Heller an Original Meaning Decision?

Many commentators, including my good friends Randy Barnett and Larry Solum , have praised Justice Scalia’s opinion in Heller v. District of Columbia as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure.

I do not doubt that Scalia uses original meaning methodology at the beginning of the opinion. Rather, the crucial move that decides the case—and that separates the majority from the dissent—is not an argument from original meaning. Let me explain.

Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.

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