Professor Whitten wrote an article titled Full Faith and Credit for Dummies. I used a similar title for an unpublished article I wrote in law school—Originalism for Dummies. I–tongue in cheek–referred to Justice Stevens’s unsuccessful attempt to use originalism in Heller as Originalism for Dummies.
Justice Stevens acknowledges his unfamiliarity with originalism, as he refers to the technique the majority uses as an “unusual approach.”25 Such is obvious from reading his misapplication of originalist analysis. Both the dissenting opinions in Heller, as well as Judge Posner’s critique of Justice Scalia’s opinions, suffer from the same fatal flaw; what I like to call, tongue-in-cheek, Originalism for Dummies.26
26 The “For Dummies” series of books “is a prolific series of instructional books which are intended to present nonintimidating guides for readers new to the various topics covered.” See generally http://en.wikipedia.org/wiki/For_Dummies
I do not use that term in a pejorative sense, but only to imply that Justice Stevens, as well as Justice Breyer and Judge Posner, fail to properly employ originalist analysis. They are not experienced at using historical analysis to properly support an argument. They fail to recognize the current state of originalist analysis, and adopt a form of originalism, original intent originalism, that had fallen out of repute over two decades ago.
To wit, Justice Stevens focuses extensively on the drafting process, but views that era in a vacuum. He improperly disregards centuries of rich common-law history that provide meaning to the words used in the Second Amendment. The history, spanning from Magna Carta, to the English game laws, to the English Bill of Rights, to struggles with the Red Coats during the Revolutionary War, reveals strong evidence in favor of the individual right to keep and bear arms.
My understanding of originalism is a bit more nuanced now that it was in 2008 when I wrote this, but I still chuckle at the title.