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ARTICLE

The Supreme Court and the Uses of History: District of Columbia v. Heller
Joyce Lee Malcolm* 
56 UCLA L. Rev. 1377

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

The Second Amendment is unusual in that until District of Columbia v. Heller, the Supreme Court had never interpreted the core meaning of the right. But it is that core meaning that, in recent years, has been in dispute. The issue is whether the Amendment was intended to protect a right for individuals to keep and bear arms, as the operative clause implies, or merely a right for states to have a militia and for members of that militia to be armed. In light of this ambiguity, the justices necessarily employed an originalist approach in order to recapture the intent of the Founders and the understanding of “the people” whose right it was meant to protect. History is essential to revealing that meaning, and all the justices tried their hands at employing historical inquiry. This Essay examines how their use of history accords with the basic rule for historical writers: Do not invent convenient facts and do not ignore inconvenient facts. Using that yardstick, I evaluate the justices’ use, abuse, and avoidance of history, focusing on three aspects of the opinions in Heller: the analysis of the Amendment’s language, the question of the right to be armed as a pre-existing right, and the Amendment’s drafting history. The majority opinion is a model of rigorous historical inquiry, while the dissents fall short.


* Professor of Law, 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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