More On Heller: Scalia vs. Stevens

Ken AshfordConstitution, Gun Control, Supreme CourtLeave a Comment

Prof. Sandy Levinson compares the majority opinion of Scalia with the dissent by Stevens:

I confess that I am equally dismayed by the Scalia and Stevens opinions (though, if absolutely forced to choose, I’d go with the Scalia opinion). One of the most remarkable features of Justice Scalia’s majority opinion (joined, of course, by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito) and Justice Stevens’s dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Justice Scalia, of course, has long been identified with “originalism,” even though some of his critics, both liberal and conservative, note that he has been a most inconsistent one. But Justice Stevens has certainly not embraced originalism. Yet they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so.

Good analysis.

More commentary from legal minds around the blogosphere:

Analyis of Heller by Lawrence Solum (or scroll down)

Initial Thoughts on Heller by Orin Kerr & Key Limitations of Heller by Orin Kerr

The Second Amendment and State and Local Laws by Eugene Volokh

My Sense of the Bottom Line from Heller by Tom Goldstein

Heller Discussion Board: "Clarity is in the Eye of the Beholder by Alan Morrison

Heller, Justice Steven’s Dissent, and the Historian’s Brief by Jim Lindgren

Supreme Court: Scalia and Stevens Duke It Out by Tony Mauro

Thoughts on Heller? by Matt Bodie

Heller Discussion Board: Incorporporation and the Need for Further Litigation by David Schenck

The Scholarly Nature of Heller by David Bernstein

Meet Your Second Amendment: D.C. v. Heller Decided by Mike O’Shea

Commentary: So, what’s next on guns? by Lyle Denniston

Some Thoughts on the Supreme Court’s Second Amendment Decision by Eugene Volokh

Heller’s Indictment of Originalism by publius

I would weigh in, but I haven’t even begun to wade through the 157 page opinions.  I note that Sandy Levinson and publius (among others) have hit upon the most distressing point — that the justices both for and against the Heller outcome have cherry-picked history in order to justify their decision.  This, as publius says, is the whole problem with an originalist interpretation of the Constitution: you simply can’t know what the Framers originally intended.  In fact, I have no doubt that if you went back in time and asked them, "Hey, buds.  Is the Second Amendment supposed to be for militia purposes only, or is it for hunting, self-defense, etc.?", you would get a bunch of different answers among the Framers themselves.  Likewise, if you informed them about the future — with semi-automatic reloading machine guns, or even nuclear weapons — they would probably be split on whether their wording applies.

Am I arguing against an originalist approach?  Not at all.  When it is clear what the Framers unanimously intended, then the plain meaning of the words should govern.  Where it is ambiguous, then judicial reasoning should come into play.  Does that mean judges will be legislating from the bench?  Perhaps, but here’s the thing about that — Congress and the people can always override through legislation.  Checks and balances, my friend.