An Arbitrary Jurisprudence: Heller

This chapter examines Justice Antonin Scalia’s highly controversial opinion in District of Columbia v. Heller construing the Second Amendment and holding that the U.S. Constitution establishes an individual right to possess firearms. Scalia held his opinion up as an example of constitutional originalism, and the chapter argues that it was indeed exemplary—but for reasons wholly contrary to those Scalia assumed. Rather than demonstrating the value of originalism, Heller shows that originalism is an inadequate and easily manipulable methodology. The chapter argues that Scalia’s opinion was arbitrary both in the source materials it cited and those it ignored and that it was based not on history but in Scalia’s personal love of guns and hunting. More broadly, the chapter argues that Scalia’s opinion shows that originalism is a rhetoric of constitutional change and that the Court’s decision in the case was the result of the half-century campaign of the National Rifle Association to work through the Republican Party to create an individual right to possess firearms based on the Second Amendment.