Reading with Guns: Institutions of Interpretation and District of Columbia v. Heller

Abstract

Described as ‘the most explicitly and self-consciously originalist opinion in the history of the [United States] Supreme Court’, District of Columbia v. Heller, decided in 2008 on a 5/4 split, embodies many of the central problems of a historically oriented legal hermeneutics. Antonin Scalia’s invocation of an unchanging constitutional text and a purity of reconstruction of an original meaning belies the intensity of social and political interests that inform the judicial decision-making process. This paper looks at the interpretive principles at stake in the controversy over the court’s account of the Second Amendment’s deeply ambiguous enunciation of the right of the people to keep and bear arms. Against the historicism that constitutes the unexamined norm of originalist interpretation, I argue that texts have no privileged “original meaning” but change their meanings as they acquire new purposes and uses. Second, I seek to specify the institutional underpinnings of the regime of interpretation that effects the translation of past texts into present structures of interest. In the broad sense in which I define it here, the interpretive regime is not just a matter of the rules of a discursive game but is effected by a mix of material, political, and disciplinary infrastructures that make those rules binding upon a particular interpretive community. Finally, I examine the play of blindness and insight that constitutes, in this case and more generally, the rhetorical condition of possibility for the establishment of a truth which then defines and enacts a reality.