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ARTICLE

The Second Amendment, Heller, and Originalist Jurisprudence
Nelson Lund* 
56 UCLA L. Rev. 1343

[PDF]:
[TEXT]: Westlaw | LexisNexis | HeinOnline |

District of Columbia v. Heller gave the Supreme Court an opportunity to apply a jurisprudence of original meaning to the Second Amendment’s manifestly puzzling text. Notwithstanding the Chief Justice’s decision to assign the majority opinion to Justice Scalia, the Court squandered the opportunity.

In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result. But the Court’s reasoning is at critical points so defective—and so transparently non-originalist in some respects—that Heller should be seen as an embarrassment for those who joined the majority opinion. It may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial exponents.


* Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law.

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Issue 56:5
Gun Control After Heller: Threats and Sideshows From a Social Welfare Perspective
Philip J. Cook
Jens Ludwig
Adam M. Samaha

Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss”
Saul Cornell

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson
Alan Gura

The Heller Paradox
Dennis A. Henigan

A Modern Historiography of the Second Amendment
Don B. Kates

The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data
Gary Kleck
Shun-Yung Kevin Wang

Why The Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America
David Thomas Konig

The Second Amendment, Heller, and Originalist Jurisprudence
Nelson Lund

The Supreme Court and the Uses of History: District of Columbia v. Heller
Joyce Lee Malcolm

The Right to Know: An Approach to Gun Licenses and Public Access to Government Records
Kelsey M. Swanson

Heller & Originalism’s Dead Hand — In Theory and Practice
Reva B. Siegel

Permissible Gun Regulations After Heller: Speculations About Method and Outcomes
Mark Tushnet

Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda
Eugene Volokh

Heller’s Catch-22
Adam Winkler



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