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ARTICLE

Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss”
Saul Cornell* 
56 UCLA L. Rev. 1095

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

District of Columbia v. Heller has been hailed by its supporters as a model of “new originalism,” a methodology that focuses on original public meaning and eschews any concern for original intent. The decision and its methodology have drawn fire from legal scholars from across the contemporary ideological spectrum. The “public meaning” approach employed by the Heller majority rests on a flawed methodology that is antithetical to Founding-era interpretive practices. The problems with this method are evident in Justice Scalia’s interpretation of the Second Amendment’s preamble. Scalia uses a “Cheshire Cat rule of construction” in which he reads the text of the Second Amendment backwards. In this bizarre approach, the Second Amendment’s preamble vanishes during the process of interpretation and only reappears at the very end when it is used to confirm Scalia’s interpretation. This rule has no foundation in Founding-era practice and violates the Blackstonian method favored by most judges in the Founding era. The problems with new originalism are also evident in post-Heller commentary, particularly criticism of Justice Stevens’ dissent. Gun rights advocates have been especially outraged by Stevens’ discussion of St. George Tucker. Yet, when Tucker’s earliest writings on the Second Amendment are examined with a Blackstonian interpretive method, they lend additional weight to Stevens’ argument. Indeed, Tucker’s earliest comments on the Second Amendment challenge Scalia’s ahistorical claim that the Founders believed that the English Bill of Rights established a broad right to have arms. In contrast to Scalia, Tucker thought that the scope of the English right to arms was so limited that it was virtually non-existent.


* Professor of History, Ohio State University.

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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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