Alright, fair warning. This is going to be long. And it’s probably not organized optimally. That’s the nature of blogging, I’m afraid. I think there’s a payoff to getting to the end, namely seeing what’s really rotten about the Heller decision (hint: it’s not that it overturns a handgun ban).

Let me preface things by noting for the record a) that I approve the substantive outcome of Heller, b) that you’ll know I’m planning to run for office in 5-10 years when I join a gun club, and c) the Democrats’ push for gun control, as Jim points out, has been the most idiotic tactical maneuver since the Judean People’s Front Suicide Squad last deployed, yet Democrats and liberals appear still not to have figured it out. Handgun bans are infringements on liberty that accomplish nothing besides fostering a (kinda justified) siege mentality among gun owners that will perpetuate their mistrust of the left indefinitely. Maybe once liberals get tired of whining about Heller, they’ll recognize what an enormous blessing it was for the political fortunes of the Democratic party.

That said, both Scalia’s majority opinion and Stevens’ dissent are really atrocious miscarriages of jurisprudence, and for parallel reasons, failing both as historical and conceptual analysis. Both Scalia and Stevens attempt to claim the mantle of originalism, with Stevens alone spending some 110 pages trying to establish the original meaning of the 2nd Amendment. As Sanford Levinson and Mark Tushnet note, the two of them fail miserably at reconstructing the history of the 2nd Amendment, so whatever they assert the original meaning of the 2nd Amendment to be, they can only be right by accident. Historical errors aside, Stevens at least tries to employ a promising method for establishing what the understanding of the 2nd Amendment c. 1789 might have been, by looking at how it entered the Constitution and how it was understood at the time. That (underinformed) historical understanding is what allows him to block the derivation of an individual right to own a weapon for self-defense. But even if Stevens’ history were accurate, it is beset by fatal conceptual problems, namely a) Stevens simply begs the question of why the original meaning of the 2nd Amendment is important (such a notion flies in the face of much of his previous jurisprudence), b) 2nd Amendment jurisprudence has evolved over time (a point Stevens would ordinarily harp on), and c) Stevens’ own 9th Amendment jurisprudence, in conjunction with the 2nd Amendment as he interprets it in his Heller dissent, would seem to entail an individual right to own a weapon for self-defense. But more on the 9th Amendment below.

Let’s leave it at that with Stevens. The far more interesting opinion is Scalia’s. To repeat, I agree with the substantive outcome of Scalia’s opinion, but it is a fascinatingly awful piece of legal reasoning, and the precedent it sets may be an unhappy one if the reasoning itself, and not just the effect of the opinion, recurs in future cases. The executive summary, for those who don’t want to get stuck in the weeds, is that Scalia’s opinion, while superficially pro-liberty, is radically damaging to libertarian readings of the Constitution.

Unlike most of the other justices on the court, Scalia has a systematic, and truly scholastic legal philosophy that he brings to bear in many of his decisions. It enables him to make a show of intellectual heavy lifting virtually guaranteed to induce star-struck wonder among gullible pseudo-intellectuals, who are left babbling on about “ratiocination” and so forth. He dubs his theory “textualism,” which he distinguishes from the better known species of originalism, “strict constructionism,” on the grounds that utterly strict and literal interpretation of textual evidence leads to bizarre and illogical semantic consequences, such as a ruling in a case of a drug transaction in which a gun was traded for drugs, that the gun was therefore “used” in a crime, thereby triggering any statutes that elevate the severity of an offense when committed using a gun versus without. That, Scalia argues, would be preposterous. “Context is everything,” he claims, and I agree. Yet he is also adamantly opposed (actually mocks) the idea of a “living Constitution,” meaning a document whose terms evolve with language and society — which are, last I checked, yes, indeed, contexts — as well as an attempt to decipher the “original intent” of a legal provision, even though, that, too, presumably can supply a context to narrow down the range of semantic values an atomic or complex expression may take. Instead, Scalia looks to interpret the law according to what he calls “original meaning.” The marks here are doing double-duty both to introduce a term and as scare quotes, because it is highly dubious that “original meaning,” as Scalia employs it, corresponds even roughly to the ordinary English understanding of the term.

But in fact, Scalia’s concept of original meaning begins with the (seemingly synonymous, though he doesn’t clarify) concepts of “normal” and “ordinary” meaning. As he puts it in Heller:

In interpreting this text, we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

Now, it takes a three-step process to make what Scalia is suggesting here work. He doesn’t write out the following as explicit instructions, and in fact, he would deny that the second step is part of the process. But that’s because he is not entirely honest about what exactly is going on in his semantics, and how he is able to exclude the elements he considers extraneous. Without step 2 included, he is powerless to block the more intuitive understanding of what originalism is, so I include it. However, if it stopped with step 2 and step 3 were left out, Scalia would be powerless to block the “Living Constitution” ideas he has such contempt for, since he would then be left interpreting an expression based on the most parsimonious contemporary understanding of its meaning, as given by some principle of parsimony. To preview: Steps 2 and 3 are not logically incompatible, but including them together in a semantic theory is a grotesque and indefensible inflation of the theory, since each of them severely undermines the plausibility of the other.

Here’s how it works: to arrive at the Scalia-Original-Meaning (SOM) of an expression in law, first, cast backwards to the temporal setting in which the expression was introduced into the law — i.e., trace the history of the expression back to the point at which it was introduced into the law under consideration, but go no further than back than that. Second, determine the context of usage based on what, in present-day language, appears by a principle of parsimony to be the most salient context without consideration of any historical factors that might have shifted the saliences of alternate contexts. Third, only after present-day semantics has selected a context for consideration of the expression (or what Scalia calls applying “common sense”), keep up the exclusion of all historical or other information extraneous to the selected context and determine the ordinary and/or normal meaning at the time of the adoption of the expression into law in the context selected as salient by present-day semantic considerations, by evaluating all usage in the context selected in the second step and deleting all technical or otherwise specialized usages (but retaining idiomatic usage).

You might already see where SOM and “original meaning,” as we’d ordinarily understand it, come apart. Step 2 has no business whatsoever being included in a procedure for determining the original meaning of an expression. By applying contemporary considerations of the relative saliences of candidate contexts and having selected one and excluding all others from further work in the application of the semantic theory, one is applying a filter to the expression under consideration that cuts its ties to its original context. The derived context step 2 establishes is in fact roughly the way we would project an expression from an earlier period into the present and then try to make an inductive guess about its meaning — in other words, if we see the law as a body of doctrines that evolve along with language and with history, such that what is important about a legal expression is what it most plausibly means under contemporary lights, then step 2 is the way to go. But of course, Scalia scornfully rejects ideas of evolving constitutional language, and thus tries to give the results of step 2 the stamp of Original Meaning through step 3. Hence, having gone into the past, brought an expression into the present and converted it into an expression of present-day ordinary language, he then takes that altered expression back to the past and artificially reinserts it in its original setting of usage. To complete step 3, Scalia then examines how the present-day expression he has cooked up would function in ordinary usage in the past — a determination, notably, that cannot, by definition, correspond to any usage of the time the expression entered law, and so involves, to put it perhaps uncharitably, a kind of soothsaying on Scalia’s part.

Conversely, if somebody wanted to figure out the actual original meaning of an expression, rather than its SOM, the procedure is just step 1 plus step 3: Expression in hand, look at the overall picture at the time it was introduced into the discourse under examination. Determine by the history and pattern of usage the appropriate (past) context for analysis of the term, and then give the interpretation that matches usage in the selected context. Note that technical or specialized meaning, as well as the intent involved in introducing the expression into the domain of discourse, have everything to do with establishing the true original meaning. In countless cases, including, certainly, cases of laws being drafted, terms and concepts are employed in some non-standard specialized way. In such cases, if the intent behind the introduction of the term is accessible, that should suffice to establish the technical meaning, and we can then ask what the ordinary usage patterns of the technical term in the appropriate context at the time the term was introduced would have been. Admitting consideration of intent into a semantic theory is not only good practice for the purposes of accuracy in establishing original meanings, incidentally, but also neatly obviates Scalia’s worry about strict constructionism. A hyperliteral understanding of “use,” to go back to the earlier example, on which trading a gun for drugs triggered laws that amplify criminal penalties for “using” a gun in the commission of a crime, immediately vanishes once the intent of the legislators is brought to bear. Unless, that is, the legislators actually wanted to amplify the penalties on anyone who used a gun in any way at all in committing a crime, and not just as a weapon. Notice, by the way, that in such a case, Scalia’s procedure, excluding both intent and specialized usage, would completely contradict the original meaning of the legislation.

The point of going through this in technical detail is to bring out the weirdness — and really, it’s opportunism, not weirdness — of Scalia’s theory. What he is doing under the guise of empirical investigation into original meaning is playing (I use that word advisedly) an armchair rationalist, essentially interpreting every concept of law in whatever way jibes with his intuitions, then projecting that interpretation back into the original setting of the law and giving some superficial gloss on the “ordinary meaning” at the time of the law’s adoption of an expression he has artificially gerrymandered into any form he pleases. The uncharitable way of putting this is that Scalia is just making shit up and calling it original meaning. A more charitable way to put it is that he has a source of a priori evidence for his interpretations, namely his intuitions, and these are likely to jibe with the intuitions of many other contemporary English-users, so that if Scalia is on his game, his gerrymandering of an expression is the most parsimonious way to gerrymander it in ordinary contemporary speech. That arguably provides him with a kind of intersubjective agreement among present-day speakers about the best candidate to be the normal usage of the anachronistically gerrymandered expression at the time its homophonic cousin was adopted into law.

Ironically, Scalia’s interpretation of expressions according to present-day semantics and contemporary considerations of parsimony has a lot to recommend it. I’d reckon it one of the better ways of trying to do Living Constitution jurisprudence. But the idea of projecting the already interpreted expression back to the past in quest of some Platonic ideal of normal usage relative to that time (because there sure as hell was no such normal usage at the time) is just daft. It is an ornate way of trying to stamp one’s preferred interpretation of a law with a mystical seal that guarantees it trumps other candidate interpretations. And it really has nothing to do with the original meaning of legal concepts and expressions. This criticism generalizes for the whole of Scalia’s legal philosophy. It is a very elaborate apparatus that enjoys the appearance of analytical rigor thanks to its many interesting cogs, noisemakers, and shiny parts, but there’s really much less than meets the eye. Scalia’s self-appointed mandate is to make the Constitution, the laws of the United States, and precedent consistent with the reflective intuitions of Antonin Scalia. No other metric of comparison has any practical effect on his jurisprudence. (To be sure, his intuitions will get things right from time to time. But that’s a matter of luck, not of substantive legal scholarship and philosophy.)

That brings us back to Heller. Scalia’s finding is that the Second Amendment includes the individual right to own a weapon for self-defense. Why? Stripping away the dubious SOM framework and language, the justification amounts to the idea that interpreting the text to include that individual right just makes more sense, on intuitive semantic grounds, than any other way. But note that Scalia does not view that right as unlimited, rather: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The exceptions Scalia allows for are no longer anything resembling the dictates of semantic parsimony, but just whatever he thinks is a practical compromise. And though we’ve already dealt with the pretense that what Scalia is up to has anything to do with a viable originalism, these exceptions make for a mockery of his putative commitment to originalism. As Brian Leiter puts it:

Now how is this out-of-whole-cloth set of limitations on the right to be squared with the interpretive principle that “words and phrases were used in their normal and ordinary as distinguihsed from technical meaning” and that “normal meaning…include[s] idiomatic meaning, but…excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation”? Quite obviously, there is no reference to the felons or mentally ill in the text of the Amendment, and while those of the founding generation had the notion of felons, they did not have our notion of mental illness, which did not make its debut until the 19th-century. The same can be said, one suspects, about “sensitive places.” (Indeed, it would hardly be surprising that plenty of folks in the “founding generation” did, indeed, carry their guns to school!)

So how are any of these limitations to be squared with the apparently ’scholarly’ and paintstaking analysis of the clause and the guiding interpretive principle announced at the start? It is not at all obvious. Perhaps the thought is that the framers, if they had thought about schools, and how they would evolve, or if they were familiar, as we are, with the nature of mental illness, then of course they would have understood that the individual right of self-defense does not extend to the mentally ill or to those in schools. But the moment we go that route we then open the door to also asking, “Well, what if they were also familiar with modern urban area afflicted by poverty and gun violence, wouldn’t they have also entertained a limitation on the right in the same way?” In which case, what work is the public meaning originalism really doing?

The answer to Leiter’s closing question, of course, is that it is a facade that does no work apart from providing Scalia with the magic seal of originalism, which when applied to a legal document, transforms (by magic, of course) an individual lawyer’s modern-day interpretive biases into Original Meaning. If Scalia were indeed drawing out the original meanings of Constitutional provisions, incidentally, then he would conclude that the “arms” to which the 2nd Amendment refers would include in its domain things like muskets, old-timey artillery, sabers, etc., and definitely not Glocks. If the interpretation were loosened of literal constraints, it would open up to include military grade weapons along with handguns. The clear context in which the right to bear arms is embedded in the Constitution is as a check on tyranny — i.e., so that citizens could arm themselves and overthrow the government — and as armaments in a militia. In each case, the context ensures that military-grade weapons will be among those to which citizens have a right. If the scope of “arms” is broadened to include contemporary arms and not just the weapons of the colonial period, then the true spirit of Scalian originalism would find a Constitutional right to own AK-47s, rockets, tanks, F-14s, etc. Scalia of course rejects such an interpretation. But again, as Leiter notes, he can only do so by vitiating originalism. Like I said at the outset, Heller is a terrible opinion, whose substantive outcome I happen to agree with.

Now, it seems to me that there is a way to find an individual right to a weapon for self-defense in the Constitution, and the 2nd Amendment plays a role. But the 9th Amendment — one of the forgotten amendments, but in many ways both the historically and jurisprudentially most important — clinches the right. Here’s the text, for those who can’t recall it. It’s one sentence:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Both the subject and object are sets of rights. The subject is the “enumeration” of Constitutional rights, which consists, of course, in the explicitly catalogued rights. One could argue about whether “enumeration” ranges over the entire Constitution (in which case, e.g., the Senate’s right to ratify treaties counts as an enumerated right) or just the rights of the Bill of Rights and subsequent amendments. That argument isn’t material here however. The object is the “others,” namely rights that fall outside the enumeration, and which, we are told, are “retained by the people.” Because they are retained by the people, these others cannot be the rights and powers of the branches of government specified in the articles, because those, clearly, are not retained “by the people,” but by the government. Now, a brief historical interlude: the Constitution, in addition to establishing a new government, was a written extension of the common law tradition that dates back to Anglo-Saxon England. As the common law developed in England and later Great Britain and its colonies, one of the cornerstones of the legal system — and one of the most important features distinguishing it from the legal codes of continental Europe, which were based on Roman law — was the concept of “ancient liberties,” an amorphous set of rights and privileges of first the descending ranks of nobility, then yeomen, then free subjects and so on down the hierarchy of castes. These ancient liberties are never specified in detail, but rather are simply always assumed to exist and place limitations on central government power that men of good will and understanding should be able to intuit on their own.

The “other” rights of the 9th Amendment, clearly, are an importation of the ancient liberties. We can be sure of this because the Constitution was consciously designed, among other things, as a written guarantee of the common law with all that entails, and furthermore because outside of the common law tradition, the notion of non-enumerated rights that continue to be retained by the people simply doesn’t make any sense. Finally by way of textual interpretation, there are two possible readings of the predicate, “shall not be construed to deny or disparage,” which are actually mutually compatible and (I say) probably both correct. First, and more obviously, for any unenumerated right that is acknowledged to exist, any potential conflict with an enumerated right cannot be resolved by nullifying, suspending, or diminishing the unenumerated right. Second, and perhaps more importantly, we should read the enumeration itself — that is, the act — as barred from denying or disparaging other rights. On this reading, the guarantee is explicitly that the fact that some rights are enumerated in no way implies that other rights do not exist or do not have full standing as rights. For example, in a dispute over whether there is a Constitutional right to privacy, the argument that there is not because no such right is explicitly enumerated is an immediate loser. For any putative right that is not enumerated, it either is not a right or is a common law right with full standing. Any decision between those two possibilities can only be made on the basis of evidence stacked up against common law tradition. The absence of the putative right in the enumeration of rights has no bearing — although the inverse does not hold, namely, the fact that some right is enumerated can be substantial evidence for the existence of an unenumerated right. For example, the inference that there is a Constitutional right to privacy given by the 9th Amendment is arguably licensed (this was, in fact, the argument in Griswold v. Connecticut) by various protections against government intrusion, particularly in the 4th Amendment.

So we can draw several conclusions: 1) The Constitution guarantees rights that it does not state explicitly. 2) Determining what those rights are, however, is guesswork; we can never be certain that any putative non-enumerated right is in fact a Constitutional right. However, it follows from (1) that any interpretation of the Constitution according to which there are no non-enumerated rights is ipso facto false. There are some such rights. Hence it follows from (1) and (2) that the 9th Amendment makes Constitutional interpretation a messy matter of hunches and induction, empirical and practical consideration. So (3) the so-called “penumbras” of the Constitution contaning unenumerated rights that Hugo Black adduced in Griswold, for which he is mocked by conservative legal scholars, do in fact exist; the 9th Amendment guarantees it. An interpretation on which no penumbral rights existed could be ruled out as incorrect pre-emptively. The problem, of course, is that there is no scientifically rigorous procedure for determining the penumbral rights, and they may indeed be subject to change over time. So-called originalists loathe the concept because it creates a platform for reading elements into the Constitution that could have had no place in its original composition (like the “umbral” right, if you will, to use birth control, which follows from the penumbral right to privacy). But the problem for the originalist position — and the reason, I argue, it is ultimately untenable — is that the 9th Amendment is in the Constitution, and can’t just be read out of it without vitiating originalism. But then once the 9th Amendment is acknowledged as an amendment on a par with all the others, as originalism demands, originalism is going to have to be vitiated anyway, since it is rather useless in any jurisprudence the 9th Amendment touches, since the very nature of common law is that it is a body of law that evolves with society with features being added and deleted as times change.

One could even argue that it is an analytic truth (based on the concept of “common law”) that the set of rights guaranteed by the 9th Amendment today is different from the set of rights guaranteed by the 9th Amendment in 1789. If that’s the case, originalism is a dead doctrine.

So how, at last, do we get an individual right to hand-gun ownership? As follows: Pace Scalia, the meaning of the Second Amendment really is not clear at all, and as Levinson noted (the link up top) the historical scholarship is very conflicted. What is clear is that it guarantees some right, and that right involves possession of weapons, but any further precisification is going to be arbitrary. That’s where the 9th Amendment kicks in. Whatever it is that the Second Amendment guarantees a right to, it’s in the neighborhood of an individual right to a weapon for self-defense, of which the prime example today is a handgun. Given that the individual right to a weapon for self-defense is at least in the neighborhood of the Second Amendment right, and given also that nothing in the Constitution can disparage or deny a right to a weapon for self-defense if it is in fact among the 9th Amendment rights, and given, finally, the fairly plausible principle that common law rights should be presumed to exist in controversial cases except when there is a compelling rights-based claim against them (e.g. the putative right entails an infringement on another right) or when the putative right is so strange that it is presumptively implausible for it to fit within the scope of common law rights (which are, after all, based on tradition), the balance of evidence seems to weigh in favor of there being an individual right to a weapon for self-defense and thus an individual right to a handgun.

Note that there is (plainly) no means of a formal deduction of any common law right — to conclude for any such right that it exists, one has to be able to make a plausible case along the lines that given the common law tradition, the nature of the putative right, and the textual support for its existence within the Constitution, it is more in keeping with common law that the right is guaranteed by the 9th Amendment than otherwise. Note also that this analysis provides a means for excluding a putative right to own military grade weapons under the 9th Amendment. Yes, it’s true that such a putative right is in the neighborhood of the 2nd Amendment right, and probably even closer to the original spirit of the 2nd Amendment right, but we have already seen that original spirit, original intent, original meaning, etc. ad nauseam have no bearing on the protection of a putative common law right under the 9th Amendment, because those rights are context dependent and shift with time. The decisive consideration, simply, is that the right to own, say, a howitzer is so bizarre that the catalogue of common law rights is not a suitable location in which to embed it. For such a right to exist, it would likely have to be enumerated either as a new amendment or as a long overdue clarification of the 2nd Amendment.

Which brings me, finally, to the ultimate point of this whole exercise, which is to show why Scalia’s Heller opinion, though in practical effect a welcome development for libertarians, has the potential to set a dangerous anti-libertarian precedent. That is, as noted, Scalia makes no effort whatsoever to either embed the right to handgun ownership in the 9th Amendment or use the 9th Amendment to strengthen assertions about the right or rights the 2nd Amendment provides. Instead, in the absence of that link, he draws a right to own a weapon for self-defense out of the 2nd Amendment as a sui generis, stand-alone decoupled from all other liberties, and does so, moreover, through some ineffable consultation with some revelation from the Realm of the Forms about the ideal original meaning of the text. In other words, there is one and only one liberty that Heller advances, and that is the right to own a weapon in self-defense. The decision could not be cited in support of any other putative right.

Two unwelcome ramifications follow from the contours and notable absences of Scalia’s discovery of a right to own a gun, the first largely practical, the second largely theoretical. First, Heller was a case that cried out for 9th Amendment jurisprudence, but Scalia would have none of it. Thus, he has strengthened the precedential case for ignoring the 9th Amendment in future cases, a position altogether too many judges fall into because of the admitted difficulties in interpreting the amendment. That habit cannot possibly be warranted, since the 9th Amendment is in the Constitution and can only be revoked by amendment, but it is nonetheless prevalent in the judiciary, which should seriously alarm any defender of liberty, because the 9th Amendment is the guarrantor of more liberties than anything else in the Constitution or laws of the United States, and the codification of the principle of ancient liberty on which our system of government rests, according to which common law affords a presumption in favor of liberty in controversial cases. Hence any weakening of the 9th Amendment represents a weakening of the structural support of liberty.

Secondly, Scalia not only ignored the 9th Amendment but, further, by the lights of his opinion, the right to own a weapon for self-defense is an enumerated right, it’s just that people who have the misfortune of not sharing Antonin Scalia’s intuitions have frequently mistakenly read the 2nd Amendment as not enumerating such a right. Consequently, Scalia’s opinion more or less rests on the presumption that a right must be explicitly enumerated to have standing — otherwise, his resort to his original meaning algorithm is pointless, because the nearness of the putative right under consideration in Heller, plus certain analytic truths about the rights protected by the 9th Amendment, weigh decisively in favor of the existence of a right to handgun ownership regardless of the explicit enumeration, or lack thereof, in the 2nd Amendment.

The upshot is that the Heller opinion can actually be read as establishing a precedent that nullifies the 9th Amendment more or less in toto — and that, indeed, would be perfectly consistent with Scalia’s jurisprudence, if not explicitly dictated by Scalia’s jurisprudence. While it may not excise the 9th Amendment from the document, because it can’t, the Heller opinion, if generalized, renders the 9th Amendment inoperative. I hardly need to say what a crushing blow to liberty that would be. Which reminds me to point out, in closing, that the most disappointing feature of the Stevens dissent is precisely the fact that Stevens too left the 9th Amendment out of consideration — probably because, had he considered it, he would have come to an opinion along very much the lines I sketch for a 9th Amendment-based finding of a right to own a handgun. After all, the 9th amendment figures prominently in some of the most high-profile and significant opinions Stevens has written or joined — in particular, the various rulings fending off challenges to Griswold. Had Stevens come to the conclusion his jurisprudential corpus would seem to dictate, he would have arrived at a far better-reasoned and, as it turns out, substantively good (for the country, the world) finding that the DC handgun ban is unconstitutional. Such a finding would have occasioned a concurrence at the very least, but it is a viable possibility that had Stevens joined the majority, he might have been able to make the 9th Amendment case for the outcome of the ruling the actual majority opinion, in order, say, to give the ruling the intangible backing of an expanded majority that Supreme Court justices seem to prefer.

What Stevens did instead, in a fitting mirror image of Scalia’s moves, was to impose his own prejudices on the Constitution under a thin patina of originalist analysis but in reality basically ad hoc. Thanks to the pair of them, we gained an unequivocal, inalienable right to own handguns, at the cost of a countless number of common law rights becoming alienated.

My (and Brian Leiter’s distinct) headline explained here.