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.
