Dead or Alive: Originalism as Popular Constitutionalism in Heller

Abstract

The Court's announcement in 2008 that the Second Amendment, ratified in 1791, protects an individual's right to bear arms against federal gun control regulation was long awaited by many, long feared by others. What produced this ruling and what might it reveal about the character of our constitutional order? For many, constitutional law changed because the Court interpreted the Second Amendment in accordance with the understandings of the Americans who ratified it: Heller marks the "Triumph of Originalism. '' Others saw the case very differently, observing that the Court had interpreted the Second Amendment in accordance with the convictions of the twentieth century gun-rights movement and so had demonstrated the ascendancy of the living Constitution. The two accounts of the decision stand in some tension. One views Heller's authority as emanating from the deliberations of eighteenth-century Americans, while the other views the constitutional debates of twentieth-century Americans as decisive.