Professor Solum’s New Article on Heller Agrees with my Originalism for Dummies Article

Professor Solum just posted his long-awaited article to SSRN, titled District of Columbia v. Heller and Originalism.

I encourage you to read the entire article, but I would like to focus on one area, where Professor Solum agrees with my reading of Heller.

In his article, Professor Solum wrote:

This disagreement between Justices Scalia and Stevens about the relationship between the prefatory and operative clauses points to a larger disagreement. While Justice Scalia inquired into the semantic content of the operative clause, Justice Stevens focused on the purpose or teleological meaning of the Second Amendment. In a rough way, this disagreement corresponds to the difference between original intentions originalism and original meaning originalism.

In an unpublished paper I wrote in December 2008 for Professor Malcolm’s Common Law & American Rights class, titled Originalism for Dummies, I wrote something along very similar lines. Profssor Solum linked to this article back in December 24, 2008 on the Legal Theory Blog.

[In contrast to Justice Scalia’s original public meaning approach], by focusing almost exclusively on the drafting history, Justice Stevens fails to appreciate the rich common law history of the right to keep and bear arms, and how this history would have informed the original public understanding to an observer in the late eighteenth century. Words derive meaning from what they mean in context . . . Curiously, Justice Stevens rebukes Justice Scalia for “dwelling” on historical sources, including the English Bill of Rights and Blackstone’s Commentaries, proclaiming they only shed “indirect light” on the topic. However [Justice Stevens’s] application of originalism leaves much to be desired. Perhaps Justice Stevens did not properly undertake such [an original public meaning] excursion, because to look at this history paints a very strong picture in favor of an individual right to keep and bear arms.In FCC v. Pacifica Foundation, the Supreme Court analyzed George Carlin’s famous “seven dirty words” that cannot be repeated over the airwaves. Similarly, I have put together the seven dirty words of intentionalism that should not be used in an originalist analysis. This list focuses on words which seek to ascertain the framer’s intent, rather than what the original public meaning of a text is. The words, in no particular order are: (1) wished; (2) contemplated; (3) recognized; (4) intended; (5) motivated; (6) assumed; and (7) considered. Throughout Justices Stevens’s and Breyer’s dissents, they are both guilty of relying on these concepts to try to paint a picture what was on the Framer’s mind. Keep a keen eye open for these words, because they reveal a sneaky attempt to conflate original intent, a discredited form of originalism, with original public meaning originalism, an essential method of historical analysis.

I think Professor Solum is dead-on. Scalia’s opinion is closely tied to an original public meaning inquiry, or semantic originalism as Professor Solum refers to it. Stevens’s opinion utilizes an original intent approach.  I’m pretty content with myself for independently coming to the same conclusion about such as seminal case as a preeminent theorist like Professor Solum. Gratefully, I heavily relied on Professor Solum’s theoretical work when writing this paper.

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