Law Commons^™

Our Non-Originalist Right To Bear Arms, Robert Leider

Indiana Law Journal

District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.

This Article challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth- and twentieth-century case law. This Article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism—not originalism—in the way it approached the most important practical question …