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Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L. Rev. 246 (2008).

Abstract: District of Columbia v. Heller is the most explicitly and self-consciously originalist opinion in the history of the Supreme Court. Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning. It would be possible, in this light, to see Heller as a modern incarnation of Marbury v. Madison, at least as that case is understood by some contemporary scholars, and to a considerable extent as Chief Justice John Marshall wrote it. In Marbury, the Court also spoke on behalf of what it took to be the text, structure, and original meaning of the Constitution. On one view, Heller represents the full flowering of the approach that Chief Justice Marshall imperfectly inaugurated – one that has been abandoned at crucial periods in American history. To its defenders, Heller speaks honestly and neutrally on behalf of the original meaning, and it should be appreciated and applauded for that reason. But there is a radically different reading of Heller. The constitutional text is ambiguous, and many historians believe that the Second Amendment does not, in fact, create a right to use guns for nonmilitary purposes. In their view, the Court’s reading is untrue to the relevant materials. If they are right, then it is tempting to understand Heller not as Marbury but as a modern incarnation of Lochner v. New York, in which the Court overrode democratic judgments in favor of a dubious understanding of the Constitution. On this view, it is no accident that the five-Justice majority in Heller consisted of the most conservative members of the Court (who were all Republican appointees). Perhaps Heller is, in the relevant sense, a twenty-first-century version of Lochner-style substantive due process, and perhaps it marks the beginning of a long series of confrontations between the Supreme Court and the political branches. On a third view, this characterization badly misses the mark. Heller is more properly characterized as a rerun of the minimalist ruling in Griswold v. Connecticut. In Griswold, the Court struck down a Connecticut law banning the use of contraceptives by married couples, under circumstances in which the Connecticut law was plainly inconsistent with a national consensus. The Court worked hard to support its decision by reference to the standard legal materials, but the national consensus probably provides the best explanation of what the Court did. Perhaps Heller is closely analogous. The Court spoke confidently in terms of the original meaning, but perhaps its ruling is impossible to understand without attending to contemporary values, and in particular to the fact that the provisions that the Court invalidated were national outliers. In this Comment, the author contends that the third view is largely correct, and that Heller will, in the fullness of time, be seen as embracing a kind of Second Amendment minimalism. Notwithstanding the Court’s preoccupation with constitutional text and history, Heller cannot be adequately understood as an effort to channel the document’s original public meaning. The Court may have been wrong on that issue, and even if it was right, a further question remains: why was the robust individual right to possess guns recognized in 2008, rather than 1958, 1968, 1978, 1988, or 1998? And notwithstanding the possible inclinations of the Court’s most conservative members, Heller is not best seen as a descendent of Lochner. In spite of its radically different methodology, Heller is far closer to Griswold than it is to Marbury or to Lochner. No less than Griswold, Heller is a narrow ruling with strong minimalist features. And if this view is correct, then the development of the gun right, as it is specified over time, will have close parallels to the development of the privacy right. As the law emerges through case-by-case judgments, the scope of the right will have as much to do with contemporary understandings as with historical ones. This point has general implications for constitutional change in the United States, even when the Court contends, in good faith, that it is merely channeling the original meaning or other established sources of constitutional meaning.