Essays on Heller

Mark Tushnet wrote:
"It is enough to support the criticism of the new originalism that it has not supplied grounds for the choice – and enough to observe that the necessity for choice deprives the new originalism of one of the primary benefits claimed for it." (end quote)

But not only did the majority in Heller lay out many solid arguments to support their opinion, Tushnet himself provides a compelling reason to side with them.

Throughout his essay Tushnet repeats that there is no one correct answer ("The new originalism’s search for the – that is, the single –conventional understanding of constitutional terms is doomed, at least in the most interesting cases...") and yet Tushnet does not apply that razor when comparing Steven's dissent to the majority opinion.

If Tushnet is correct that there truly was “no one common understanding”, that in itself is compelling grounds for rejecting the choice requiring precision and exclusivity. In fact siding with the view that is more inclusive of the various contemporary understandings of the amendment and which does not insist on a single narrow purpose would make very good sense given the asserted lack of a single common understanding.