Nelson Lund has just uploaded to SSRN a new and important criticism of Justice Scalia's opinion in DC v. Heller: The Second Amendment, Heller, and Originalist Jurisprudence. While praising Justice Scalia for his originalist analysis that the Second Amendment protects an individual right to arms for purposes of personal and collective self-defense, the article mainly considers the exceptions to this right identified by Justice Scalia in dicta--which Lund quite reasonably fears will be followed by lower courts in future cases that the Supreme Court will then refuse to review. I will not summarize Lund's evaluation of each exception but simply recommend that you read it. The paper is clearly written and accessible to anyone interested in this topic.

Of most interest to me was Lund's assessment of where Justice Scalia went wrong and how he should have approached the problem. Justice Scalia contends that the exceptions he lists are historically grounded limits on the right, but as Lund demonstrates, Justice Scalia fails to establish this in the opinion, and these claims are unfounded.

In my view, and very briefly, I think that one reason why Justice Scalia approaches the subject this way is because (a) he views constitutional rights as trumping any cost-benefit calculations and (b) he objects to judicial second-guessing of legislative cost-benefit calculations. So if a constitutional right is "absolute" in this respect, it must be narrowly tailored so as to remove any "exceptions" from its scope. And to be "originalist," in Justice Scalia's view, this narrow tailoring must be a product of historical inquiry. Lund shows why Justice Scalia's efforts fail on their own terms to do this. And Lund also explains why such inquiries are typically problematic:

The fundamental problem with the Heller opinion is its failure to admit that some questions about the original meaning of the Constitution cannot be answered on the basis of a bare textual and historical inquiry. The logic of Justice Scalia's theory that the Second Amendment codified a pre-existing right would render virtually all modern gun control regulations unconstitutional because such regulations did not exist in 1791 (and everyone therefore had a right to do anything that was not forbidden) and there is no historical record indicating which unenacted regulations would have been generally considered to be permissible at that time.

Instead, Lund proposes the following approach (which I am truncating for purposes of a blog post):

The core of originalism is the proposition that text and history impose meaningful binding constraints on interpretive discretion, but that does not mean that every question can be answered by identifying (or guessing at) the "original expectations" of the lawmakers. Unless one rejects originalism in favor of living constitutionalism or judicial deferentialism, some recourse to the purposes or principles of the Constitution's provisions is unavoidable. [snip]

[T]he Second Amendment [does not] require the virtual absence of regulatory restrictions on firearms that existed in 1791. New regulations do not violate the Constitution just because they are new. In order to faithfully apply the Second Amendment to contemporary circumstances, the courts must instead evaluate restrictions on the right to arms in light of the purpose of the constitutional provision, which is to protect what its enactors considered the inherent or natural right of self defense. And contrary to the position Justice Scalia tried to take in Heller, that cannot be done without comparing the burdens of a challenged regulation on the individual's right to self defense with the regulation's benefits in promoting public safety. This balancing of burdens and benefits can be done overtly or covertly, but it cannot be avoided.

Justice Scalia showed one way to do it in Heller. Just announce the result. Or, what may be worse, announce that a handgun ban is unconstitutional because a large number of Americans have weighed the costs and benefits of keeping handguns in their homes, and decided to keep them. I think this approach is self-evidently wrong, at least in the sense that it is indistinguishable from living constitutionalism.

Justice Breyer's approach in Heller also seems to me to be wrong, at least to the extent that it resembles what I described earlier as judicial deferentialism. He performs an explicit cost/benefit analysis, but one that is shaped by deference to the judgments of elected officials. The entire analysis is thus conducted in the shadow of a strong presumption of constitutionality, and one that could easily become an effectively irrebuttable presumption. This is how judges repeal constitutional rights that they dislike.

The approach most consistent with the original meaning of
the Constitution would reverse Justice Breyer's presumption, and require the government to provide an extremely strong public-safety justification for any gun control law that significantly diminishes the ability of individuals to defend themselves against criminal violence.

In performing that analysis, doctrinal labels like "strict scrutiny" or "reasonable regulation" would be less important than judicial respect for the value of the inherent right of self defense and a correlative judicial skepticism about the wisdom of government officials who want to restrict the people's ability to exercise that right.

"Using this approach," he writes, "it does not seem to me that the D.C. handgun ban presents an especially close question."

In my writings, I have defended a Presumption of Liberty as is a method of constitutional construction for the protection of individual liberty to be used when constitutional interpretation to discover the original meaning of the text is insufficient to resolve a particular constitutional controversy. In A Libertarian Constitution, Lund's review of my book, Restoring the Lost Constitution: The Presumption of Liberty, he criticized my applying a Presumption of Liberty to protect "any of an open-ended class of natural rights unless the government can demonstrate that the law meets stringent criteria of necessity and propriety." But in this paper he acknowledges the usefulness of a Presumption of Liberty at least to protect the enumerated right to keep and bear arms. I won't pursue this disagreement further here, except to note that he accepts the approach as practical with respect to evaluating the right to keep and bear arms by its purpose of facilitating the (unenumerated) natural right of self-defense.

One final note: Especially because I largely agree with Lund's analysis, I find it unfortunate that the paper repeatedly employs a harsh rhetoric towards Justice Scalia. In contrast, although Lund's 2005 review of my book is unremittingly critical, it remains respectful. I am myself a major critic of Justice Scalia's "faint-hearted" approach to originalism in which he leaves himself sufficient "outs" to enforcing original meaning as to undermine the conclusion that he is really an originalist. (See Scalia's Infidelity: A Critique of Faint-Hearted Originalism.) And I will always be saddened by his vote in Raich. Nevertheless, I think Justice Scalia is among the most thoughtful Justices in our history and he is certainly among the most forthright in articulating and defending his view of the proper judicial role. And even before he was a Justice, he pioneered the "new originalism" with his early rejection of original framers' intent in favor of original public meaning--the approach he skillfully employs in Heller to identify an individual right to bear arms in the Second Amendment. The tone of Lund's piece is neither necessary nor constructive. All of his insightful substantive criticisms could have been made without it, and might have stood a much better chance of moving Justice Scalia himself to reconsider the way portions of his Heller opinion were constructed. This is, however, a pre-publication draft and I sincerely hope that Nelson revises it in this regard before publication.

Update: The post above was corrected to reflect the fact that Professor Lund does NOT see the unconstitutionality of the DC gun ban as a "close question" under the approach to constitutional construction that he recommends.