Fake originalism

Adam Winkler's Gunfight is a potboiler of constitutional interpretation and is both a vital history and an intellectually satisfying, emotionally rewarding tale of a great case. The backbone of his book is District of Columbia versus Heller, a landmark gun-control case decided by the US Supreme Court in 2008. As a contest of constitutional principles, Heller tested the question of whether the famously ambiguous 2nd Amendment ("A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed") protected militias and reached individuals only derivatively or whether it guaranteed every American the right to own a firearm. No decision of the Supreme Court had ever reached the latter conclusion, and others had tipped the other way, upholding, for instance, the right of the government to restrict machineguns. But Heller is more than a case. Dick Heller was a Washington DC security guard who lived across the street from a crime-ridden abandoned housing project. He was allowed to carry a firearm at work, but when he applied for a permit to bring one home to defend himself, he was barred under district law from getting one. Winkler, a law professor at UCLA, could certainly be forgiven if he chose to concentrate on Heller the case, and ignore Heller the person. Constitutional theory is intentionally impersonal, but cases also are human stories, with suffering and conflict, drama and history. Winkler recognises that. As Winkler plumbs the historical record, he follows it with curiosity and intellectual honesty. His book climaxes in the Heller ruling, which he examines with the same even-handedness that characterises the rest of Gunfight. The majority opinion in Heller was written by Justice Antonin Scalia and was hailed as a triumph of originalism, the shady legal doctrine that has many adherents but little to show for itself as a method of constitutional interpretation. In this case, Scalia bolstered his conclusion that the 2nd Amendment did protect an individual right by scouring history; his more important triumph may have been that he coaxed the dissenters to do the same, seeming to validate the method even though the sides reached opposite conclusions. But once the dust had settled on Heller, it was conservatives who lit upon the vacuity of Scalia's method and opinion. Most damning was the critique of Nelson Lund, a conservative law professor with deep knowledge of the 2nd Amendment and admiration for originalism. Lund spotted the sleight of hand in Scalia's work: The real question for originalists was not whether the 2nd Amendment protected the right to bear arms but whether the District of Columbia's ban on handguns violated that right. In answering that question, Scalia had written that handguns today "are the most popular weapon chosen by Americans for self-defence in the home, and a complete prohibition of their use is invalid". But that is not originalism. Scalia's observation about the prevalence of handguns today may support striking down the DC law, but it says nothing about the founders' views. Moreover, the majority went on to allow for a number of exceptions to the individual right it was announcing. But none of those exceptions existed when the 2nd Amendment was written, so where did Scalia discover the originalist support for them? The obvious answer is that he didn't. He wrote an opinion that supported his policy preference and then draped it in constitutional authority. Winkler's analysis of all this is delivered with panache and clarity. His book is an antidote to so much in the gun debate that is one-sided and dishonest. Jim Newton is the Los Angeles Times' editor-at-large and the author of Eisenhower: The White House Years. Gunfight: The Battle Over the Right to Bear Arms in America By Adam Winkler, WW Norton, 361 pages, $27.95