Monday, December 27, 2010
Recently, I linked to this op ed by distinguished historian Pauline Meier. The piece defended Justice Breyer's comments on the Heller case that criticized the Heller majority and argued that the original intent of the Framers did not favor a right to bear arms for self defense.
The piece is a perfect example of why originalists are often frustrated by many historians who opine on originalist issues. They claim to have superior knowledge of the history, and they are certainly well versed in it. But they can't seem to wrap their minds around the idea that originalism is not simply about history. In the version that the Supreme Court employed in Heller, and that most originalists today follow, it is the original meaning of the Second Amendment that is the question at issue, not the original intent of the Framers. Originalism is about a certain type of law, not merely history.
Meier may or may not be right about the original intent (and I find her arguments not terribly strong), but she does not even address the original meaning. As a result, a well respected historian comes across as unsophisticated about the legal issue. And, sadly, Meier is not alone.
I recognize that the training of historians does not incline them towards original meaning analysis. But that is no excuse. Historians can complain all they want to about "law office history," but at least as big a problem in this area is "history office law."
Cross posted at The Originalism Blog.