last updated 28 Aug 2025
The contemporary theory of originalism gained prominence in the 1970s and 1980s as a conservative reaction to the liberal judicial decisions of the Warren Court and beyond, with key articulations from scholars like Robert Bork.
Originalist interpretation is a theory of constitutional law that holds the meaning of a legal text should be the same as its original public meaning when it was adopted. To determine this meaning, originalists consult historical context, such as public debates, background legal events, and contemporaneous dictionaries. This approach contrasts with living constitutionalism, which posits that the Constitution's meaning can evolve with society.
I think the Second Amendment interpretation in the 2008 decision for District of Columbia vs Heller is a good example.
The Court examined the original public meaning of the text and historical context to conclude that the Second Amendment protects an individual's right to possess a firearm for self-defense, a right not tied to militia service.
Originalist analysis in Heller
In his majority opinion for the 5-4 ruling, Justice Antonin Scalia used the following originalist reasoning to strike down D.C.'s handgun ban:
- Textual analysis: Scalia broke the Second Amendment into two parts—the "prefatory clause" ("A well regulated Militia, being necessary to the security of a free State...") and the "operative clause" ("the right of the people to keep and bear Arms, shall not be infringed"). He concluded that the prefatory clause simply states a purpose for the amendment, but does not limit the operative clause.
- Original meaning of "the people": By examining the use of the term "the people" throughout the Bill of Rights, the Court determined that it consistently refers to individual rights, not collective or state-specific rights.
- Original meaning of "keep and bear arms": The majority opinion defined "keep arms" as possessing weapons and "bear arms" as carrying them, citing historical sources that applied the phrase to non-military purposes like self-defense.
- Historical context: The Court looked to late 18th-century and early 19th-century dictionaries and writings to determine the public understanding of the text. It argued that the individual right to bear arms was understood as an ancient right of Englishmen, and that the founders wanted to protect it from federal infringement.
- Militia context: Instead of tying gun ownership solely to militia service, the Court found that the militia was composed of ordinary, armed citizens. The right to bear arms was therefore seen as necessary to ensure a militia could be formed, not as being limited to active military duty.
Counter-arguments and debate
Originalism is a debated method of constitutional interpretation, and the Heller decision illustrates the disagreement surrounding its application.
- Differing originalist conclusions: In their dissent in Heller, Justices John Paul Stevens and Stephen Breyer also used an originalist approach but came to the opposite conclusion. They argued that the Second Amendment was intended solely to protect the right of states to maintain militias, based on a different reading of the historical record.
- The "living Constitution" contrast: The originalist approach in Heller stands in contrast to the "living constitutionalism" view, which holds that the
- Constitution's meaning can evolve with changing societal norms. The originalist interpretation explicitly anchors the meaning in the time of its adoption.
Critiques of Heller's originalism: Some legal scholars have challenged the majority opinion's use of originalism. For example, some argue that the Court cherry-picked historical evidence and downplayed the state-centric nature of gun regulation in the founding era. Critics also point out the difficulty of applying 18th-century practices to modern weapons and society.
Reinforcement in Bruen
Links:
How do Originalists interpret the meaning of "Militia" throughout the constitution? | Reddit
The Second Amendment & Originalism | Talks On LaW
Firearms at Home