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Original sin.

Article Excerpt
Original intent was all the rage at the Supreme Court last term. In District of Columbia v. Heller, the majority and dissenting opinions spilled 154 pages of ink on the original meaning of the Second Amendment. (1) There was so much historical evidence going both ways that in the end it canceled itself out, leading to the conclusion that the 5-4 decision was based entirely on the justices' political inclinations. At least one historian has observed that "no coherent intentions or understandings can be confidently ascribed to a problem [private ownership of weapons] that was never cogently formulated in its own right" by the framers. (2) Wet in 2008, the justices on both sides in Heller claimed to know the framers' hearts and minds.

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Still, it makes sense that in its first serious attempt to discern the meaning of the Second Amendment, the Supreme Court should have paid attention to original intent, if only it could have been clearly determined. It is another case, Giles v. California, (3) and its peculiar debate about original intent, to which I devote this article. In addition, Giles, however dubious its historicism, settles an important issue about the Court's new favorite criminal procedure amendment, the Sixth.

In Giles, the defendant shot his girlfriend six times and killed her. He claimed that he had acted in self-defense and did not intend to kill her. The prosecution sought to introduce statements that she had made to the police three weeks before the shooting when they had responded to a domestic violence report. She had told the police that the defendant had accused her of having an affair, punched her, and threatened to kill her if he found her cheating on him. These statements were admitted at trial. (4)

Applying Crawford v. Washington, (5) the California courts concluded that although the girlfriend's statements were "testimonial" and thus could not ordinarily be used in her absence without violating the...

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