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Hastings Law Journal

Authors

Rory K. Little

Abstract

The Author posits that the Supreme Court's opinions in Heller are "thick and pure" originalism: greater historical detail than ever before, and virtually no other basis is offered for the decision. But is this "originalism's last gasp"? That is, a deep and desperate attempt to give life to originalism, before it expires? Even as the majority proclaims textual originalism more loudly and purely than ever before, it ultimately-and the Author argues necessarily-leaves originalism behind. By summarily endorsing, without any historical support, the currently existing prohibitions on firearms possession by various categories of people or in various "sensitive" places, the Court implicitly applies a "living constitutionalism" approach for contemporary Second Amendment issues. This is, in fact, not inconsistent with the Court's constitutional interpretive approach for centuries. Indeed, even Justice Scalia has subscribed to it-not in name, but in realityin recent Fourth and Sixth Amendment opinions (Kyllo and Blakely). As we move further away from the world that the Framers knew, pure originalism can succeed less and less reliably. In the end we are all "living originalists" -because, as Chief Justice Marshall recognized almost 200 years ago in Cohens v. Virginia, the Framers intended the document to govern for many unseen generations beyond their own.

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