January 14, 2009

Heller, Original Interpretation, and Constitutional Constuction

Nelson Lund has recently published a critique of Justice Scalia's opinion in D.C. v. Heller entitled The Second Amendment, Heller, and Originalist Jurisprudence.  He notes in the abstract that,
"In Heller, the lawyers who initiated the litigation won their test case. Justice Scalia and his colleagues, however, flunked their test. This was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration. Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment."
Mr. Lund's critique has sparked an interesting and educational discussion about originalist interpretation and constitutional construction between Randy Barnett at The Volokh Conspiracy and Lawrence Solumn at Legal Theory Blog.  Barnett's follow up here.