In another of Heller’s odd intellectual moves, Scalia read the Second Amendment backwards, and in the process effectively erased the text’s preamble. To justify this unusual reading strategy, an interpretive approach that Stevens reminded his colleagues on the bench had never been done in the court’s history, Scalia cited legal treatises written decades after the adoption of the Second Amendment. Once again, to obtain his preferred result Scalia rummaged among sources written a half a century after the adoption of the Second Amendment to find evidence of the text’s original meaning.
Such a move only makes sense if one believes that nothing significant happened in American legal history between the adoption of the Second Amendment and the Civil War, a view most historians would find bizarre and erroneous. Curiously, Justice Scalia did not turn to a legal source more readily available that was written at the same time as the Second Amendment. John Jay, the first Chief Justice of the Supreme Court and co-author of The Federalist, had ruled on this issue in 1790s.
Jay wrote: “A preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.”
In essence, when two possible readings of a constitutional text are possible, the preamble ought to serve as the tie breaker. Scalia disregarded this Founding era rule and applied a different rule that gained prominence decades later so that he could advance his gun rights vision.
Justices Gorsuch and Barrett have staked their reputations on their commitment to apply originalist methods in a neutral manner and let the evidence dictate the outcome. Will they follow through on that promise in Corlett?
Research and scholarship published in the decade after Heller will force them to put their earlier promises to the test. It now seems clear that if they apply originalism in a neutral fashion they will have to choose between Heller’s methodology and Heller’s conclusions.