The 2008 decision
In a 2008 case called District of Columbia v. Heller, the Supreme Court declared for the first time that there was a limited right under the Second Amendment to own a handgun in your home for self-defense. The decision was 5-4. Justice Scalia wrote for the majority, finding that the Second Amendment protects an individual right to keep and bear arms. Justice Stevens wrote the dissent. Eight-Dimensional Chess (2020)
David Kaplan, discussing the case on The Bob Zadek Show, described Heller as a 5-4 decision and, in his view, a terrible one. He said the Court in 2008 declared the limited right notwithstanding what it had written before in other cases. Demystifying the Supreme Court (2019)
Originalism on trial
Kaplan framed Heller as an originalism case. Reading the 5-4 decision, he said, you see Scalia for the majority setting out what Scalia subsequently called his best articulation of the Originalism concept, explaining why he thought the Court had to rule that way based on what the founders thought. Kaplan’s objection is that the dissent by John Paul Stevens, the now-retired 99-year-old justice, sets out at worst an equally good articulation of what the founders thought. Demystifying the Supreme Court (2019)
Kaplan’s broader argument is that the historical record does not settle such questions. The idea that the words themselves or the historical record gives you the answer, he said, is poppycock. He called Heller a terrible decision because it is another example of the Court stepping in and substituting its views for what a duly elected legislature decided, in this case the D.C. City Council. If the D.C. City Council saw fit to outlaw handguns, Kaplan argued, the people ought to get what their legislature chose, and those who dislike the law should pick new city council members and undo it the next year. Demystifying the Supreme Court (2019)
Josh Blackman, in a later episode, described the same case as perhaps the greatest example of a dynamic in which liberals and conservatives fight on the same battlefield. He noted that Stevens’s dissenting opinion was thoroughly based in history: Stevens looked at founding era statements, the drafting history of the Second Amendment, and other statutes passed in the 1800s, and tried to figure out that the Second Amendment was not about individual rights. Blackman called the outcome a victory for Scalia and a victory for originalism. Eight-Dimensional Chess (2020)
Interpretation and the role of the Court
The two guests reach opposite conclusions about Heller from a shared premise about what the case turned on. Kaplan said the case is going to turn on something else, on other principles, because the words and the historical record do not supply the answer. He placed Heller alongside Roe v. Wade as examples of the Court constitutionalizing an issue and removing it from the give-and-take of democracy and legislatures. He argued that the radicalization of the Republican Party in the 1970s, which led to the election of Ronald Reagan in 1980, can be directly tied to Roe v. Wade in 1973, and that the same logic he applied to guns he would apply to abortion. Demystifying the Supreme Court (2019)
Blackman’s account of the interpretive divide is different. Asked by Bob Zadek to explain originalism against a living constitution, Blackman answered, in his own words, a little crassly: historically liberals said they could not get what they wanted from history, so they ignored it. He added that there has been a modern trend among progressives to ground arguments in originalism, because they recognize that a majority of the court is inclined to look to text and history. In that telling, Heller is significant not because the Court removed an issue from legislative hands but because both sides were arguing from the founding. Eight-Dimensional Chess (2020)
Across episodes: the same case, two readings
Both episodes discuss Heller, and the treatment does not develop so much as divide. In the 2019 episode, David Kaplan treats the case as a failure of originalism and of judicial restraint, arguing that Scalia’s and Stevens’s competing histories are at best equally good and that the D.C. City Council’s choice should have stood. In the 2020 episode, Josh Blackman treats the same competing histories as evidence that originalism had become the shared battlefield, and calls the result a victory for Scalia and for originalism. The excerpts show no movement from one position to the other; they show two guests using the same 5-4 decision to argue opposite things about how the Court should decide cases.
What the sources do not cover
The excerpts do not state which amendment the case turned on beyond the Second Amendment references, nor do they give the date of the decision beyond the year 2008. They do not describe the procedural posture, the lower courts, or the remedy. They do not say what Justice Stevens’s dissent concluded in its own words, only how each guest characterized it.