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Darrell Miller: Owning Heller
Michael Ramsey

Darrell A. H. Miller (Duke University School of Law) has posted Owning Heller (University of Florida Journal of Law & Public Policy Forum, Vol. 1, 2019) (17 pages) on SSRN.  Here is the abstract:

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – even if that means rejecting Heller? One thing this new research makes abundantly clear: the Second Amendment is in the Court’s hands. How it develops—for good or ill—will be a function solely of the wisdom with which the Court articulates its mandates.

I think, rather, that the dilemma for originalists is whether to embrace "big-data techniques."  And that is a tough one.

(And as an aside, "faint hearted originalism" as Justice Scalia originally used the phrase did not have anything to do with feeling bound by precedent.  His point was rather a concern that he might not be able to follow originalism if it led to morally problematic results.  Scalia did have a stronger (though somewhat unsystematic) attachment to precedent than some originalists, including Justice Thomas, but he did not attribute it to faint heartedness.)

ANDREW HYMAN adds:  Justice Scalia ultimately repudiated “fainthearted” originalism, saying that, “if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.”