Originalism is the theory of constitutional interpretation that holds that the meaning of the various provisions of the Constitution was fixed at the moment of their adoption, and that the goal of interpretation is to recover that historical meaning and apply it to current disputes. No subject of current constitutional controversy is more closely tied to originalist theories of interpretation than the debate over the meaning of the Second Amendment. But for all the lip service given to originalism and all the homage Americans pay to the wisdom of the founders, there is little agreement among scholars as to how one goes about recovering the original meaning of the Constitution. This Article examines the varieties of originalist arguments deployed on both sides in the current debate, and assesses their merits on the basis of the historically grounded approach to originalism developed in Rakove's 1996 book Original Meanings: Politics and Ideas in the Making of the Constitution. In particular, this Article contrasts the reliance that so-called "standard model" writers place on the deep background assumptions about the importance of a generally armed citizenry with the emphasis that their critics place on the quite specific concern of 1787–89 with the future status of standing armies and the value of the state militia. This Article offers further comments on the juridical authority of bills of rights circa 1789, and on the difficulty that the standard model faces when it is set against prevailing eighteenth- and nineteenth-century assumptions about the extent of the police power of the states.
Jack N. Rakove,
The Second Amendment: The Highest State of Originalism,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol76/iss1/5