Inspired by Eric Segall’s glowing review of the book, I recently read legal historian Edward Purcell’s chapter on Heller from his book Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon, released earlier this year. Purcell is not kind to Justice Scalia’s opinion (the chapter heading, “An Arbitrary Jurisprudence: Heller,” signals much of the content). He criticizes the opinion as much for Justice Scalia’s seeming abandonment of jurisprudential principles he has espoused elsewhere as for its uncertain historical and textual support. The chapter is interesting because it forms part of a broader look at Scalia’s jurisprudence and assesses how Heller fits into that mold.
Purcell starts the chapter with a quotation from Scalia describing the Heller opinion as “the best example of the technique of constitutional interpretation, which I favor: that is to say it is a good example of originalism.” Heller, thought Scalia, was the archetype of originalist methodology; it was one of the clearest self-consciously originalist Court opinions. But Scalia also thought it was good originalism, an example of how to narrow judicial discretion and simply apply the rules the Founders themselves set out. Purcell joins a chorus of other scholars finding reasons to doubt that conclusion.
Purcell says (p. 164) that, since Heller, scholars have amassed evidence that justifies four conclusions: (1) the original meaning of the Second Amendment is underdetermined by the historical record, (2) even so, Justice Scalia’s interpretation was “most likely wrong,” (3) the evidence is well short of that necessary to so confidently announce a new constitutional right, and (4) views on the Second Amendment’s meaning tend to correlate strongly with ideology and political affiliations. Purcell argues that history does not support Scalia’s conclusions, but that Scalia’s own personal history—a childhood filled with happy memories of guns, an avid appreciation for hunting and gun culture, a commitment to Republican policy positions—was instead doing the bulk of the work.
Purcell also argues that Heller conflicts with several of Scalia’s broader jurisprudential commitments. For example, Purcell observes that, in finding the strongest protection for handguns, Scalia jettisoned an original public meaning approach and instead turned to a focus on what weapons are now commonly held. “That was a highly elastic bit of originalism, one that was adaptive, evolutionary, politically expedient, and hardly shaped by anything the Founders had prescribed.” (p. 171). He also argues that Heller contradicts Scalia’s prior commitment to judicial restraint and local authority, aversion to aggressive judicial power, deference to the police power of the states in an area of traditional local concern, focus on structural analysis and constitutional design, and disdain for creation of new constitutional rights.
Stepping back from the details, Purcell highlights four reasons (p. 173) that Heller sheds light on Scalia’s jurisprudence: the decision (1) shows how textualism and originalism could be manipulated, (2) rests on contested and questionable constitutional judgment, (3) demonstrates that a judge’s belief in her own objectivity could mask subjective values and goals, and (4) illustrates that “originalism was essentially a method of constitutional change and, consequently, a tool of political movements that sought to bring about that change” (p. 177). In other words, the opinion demonstrates much of what Scalia spent his career fighting against. Purcell concludes (p. 182),
If it was Scalia’s “legacy opinion,” that legacy was the opposite of what he assumed. Heller did not demonstrate the objectivity of originalism and textualism but their inadequacy and manipulability. It did not return the Constitution to any original understanding but adopted the late twentieth-century formulation promoted by the militant gun-rights movement. It did not flow from jurisprudential principles but from systematic Court-packing driven by political change, party power, and ideological fervor.