Guns, Perps, and Scalia: An Analysis of Justice Antonin Scalia's Originalist Jurisprudence in District of Columbia v. Heller and Crawford v. Washington

Open Access
Mc Kinstry, Aileen
Area of Honors:
Bachelor of Arts
Document Type:
Thesis Supervisors:
  • Michael James Milligan, Thesis Supervisor
  • Cathleen Denise Cahill, Honors Advisor
  • Scalia
  • Supreme Court
  • Originalism
  • Second Amendment
  • Sixth Amendment
  • jurisprudence
  • Constitution
  • Right to Bear Arms
  • Confrontation Clause
  • District of Columbia v. Heller
  • Crawford v. Washington
District of Columbia v. Heller (2008) and Crawford v. Washington (2004) are two of Justice Antonin Scalia’s majority opinions that use an originalist form of analysis; in other words, he attempts to interpret the rights enshrined in the Constitution according to the manner in which the Founders would have understood them. This thesis evaluates how his account of the original understanding aligns with the historical record, assesses the practical consequences of these decisions, and probes the value and pitfalls of using history in legal decisions. In Heller, Scalia uses the history of the Second Amendment to prove that the right to bear arms was always understood to protect an individual’s right to bear arms, unconnected with service in a militia; in Crawford, Scalia uses the history of the Sixth Amendment to establish that the Founders meant to categorically ban the use of testimonial hearsay in trials. Scalia’s history takes the form of law-office history—that is, a history with little room for ambiguity, a history that definitively answers questions. In both cases, though most prominently in Heller, the historical sources Scalia cites to craft his argument often do not neatly align with, or simply contradict his conclusions. Crawford differs from Heller in that the Supreme Court has heard subsequent cases on the admissibility of evidence under the Confrontation Clause, and this legacy reveals the problems that arise when history does not neatly provide an originalist with the answers they seek.