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
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