A number of commentators (including my co-bloggers) have pointed out that both sides in Heller took an originalist approach to whether the Second Amendment guarantees an individual right. Does this mean that originalism is on the rise? That we are all originalists now, as Dale suggests?

  I'm not so sure. In Heller, there were essentially no precedents on the books, and there were plausible originalist arguments on both sides. (I think the majority's view was more persuasive, to be clear, but I think the dissent's was at least plausible.) In that setting, it seems inevitable that both sides would focus a lot on originalist claims. If the original public meaning is up in the air, and there isn't much else to go on among accepted legal materials, you would expect the legal opinions to battle over the only available legal ground to fight.

  The hard question is what happens as precedents accumulate, and the pool of accepted judicial authorities therefore expands. Judges and Justices soon can pick and choose from among the accepted authorities, and after awhile originalism becomes just one of the many possible tools out there. Even originalist arguments often become only partial originalist claims in that settting. That is, an judge purporting to make an originalist claim will often accept some of the precedents in the area as inviolate and will then make an originalist claim only within a narrowed scope that is still considered unsettled (an approach Justice Thomas took in his Rothgery dissent this week --more on that later).

  If you're an originalist, the real challenge is pushing judges to rely on original public meaning when it's not the only game in town. Otherwise you'll have pockets of originalism and no more. So you might have a 5-4 battle over original public meaning in Heller , but on the same day the Court will hand down a 5-4 battle over campaign finance in Davis v. FEC in which none of the Justices assert any originalist arguments.