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Justice Scalia's Living Constitution

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One of the most intriguing aspects of Justice Scalia's opinion in District of Columbia v. Heller, the landmark Second Amendment decision handed down Thursday, is its use of living constitutionalism to justify the decision to invalidate D.C.'s handgun ban. On first look, the opinion appears to be an ode to originalism: the Court goes on for page after page detailing why and how the framers drafted the Second Amendment to protect an individual right to bear arms. But when it comes to deciding why the handgun ban is unconstitutional, Scalia, the most famous proponent of interpreting the Constitution strictly according to its original meaning, argues that handguns are the most popular weapons chosen by Americans for self-defense. But why should that matter? Since when does an originalist look to today's choices -- or the choices of recent generations -- to determine the scope of a constitutional right? If people had chosen machine guns as their weapon of choice, presumably they would be protected too. Sounds like the Constitution is evolving to fit current circumstances after all.

A true originalist approach might look to the weapons preferred by the Founding generation to determine what is protected. That's not what the Court did, perhaps fearing the logical consequence that a handgun ban might be permitted in light of the Founding generation's preference for the more reliable and accurate long gun.

So what is protected and what is not protected? That is where the Second Amendment rubber hits the road. The real meaning of the Second Amendment is in what the Court reads that Amendment to prohibit or allow. But here the opinion does not provide tremendous guidance, failing to articulate a standard of review to help the lower courts soon to face numerous Second Amendment suits. More importantly, the guidance it does give is not grounded in original meaning at all.

The Court says that it is not calling into question longstanding prohibitions on possession by felons and the mentally incompetent, bans on guns in sensitive places, and restrictions on sales and purchase. In another passage, the Court suggests that "dangerous and unusual" weapons and concealed weapons can be banned. Why doesn't the Second Amendment call those laws into question? The Court provides no answer other than that they are "longstanding." But this is not the same as "part of the original public meaning" of the Second Amendment. Indeed, many of these types of laws are modern inventions and - while reasonable and appropriate - had no analogy in the Founding era. The Founders didn't require background checks, require sellers to be licensed, or ban guns in schools. Mental incompetence was not even something recognized in the law until the 19th century. Meanwhile, the types of gun control laws the Framers did have would be unacceptable: requirements that all able-bodied men turn up for mandatory musters or that all gun owners take an oath of loyalty to the state.

Maybe a good originalist argument could be made to support the exceptions recognized in Justice Scalia's opinion. But Heller only stated the exceptions and cites no historical evidence whatsoever that the Founding generation understood the right to self-defense to be subject to these particular exceptions.

So what explains the reasonable regulations that Scalia's opinion recognizes? America's living tradition of the right to bear arms. Americans have enjoyed the right to bear arms in most states for most of American history and they have always accepted a wide array of reasonable gun control measures, including the very types of laws Scalia lists. In the end, the list is a product of that lived experience and development of the right to bear arms, not originalist interpretive method.