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I haven’t really said too much on the Heller ruling to this point, in large part because gun rights and gun control aren’t the hot button issue for me that they are for most here (like Uncle). I will say that I think that the right decision was reached here, although I worry about the reasoning used to get there, and I worry even more about the growing tendency of Supreme Court justices — from both wings — to go on historical fishing expeditions to find legal justification for the outcomes they personally prefer. (Really, when was the last time you saw a SCOTUS justice — liberal, conservative, or otherwise — rule that “I hate this outcome, but this is what the law says,” or something along those lines?) On this note, I think Sandy Levinson hits it pretty squarely on the head:

Then there are the “internal” features of the opinions. 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. Thus, in effect, they could not be citizens. Charles Sumner, who, unlike Taney is quoted by Scalia, strongly endorsed the rights of anti-slavery settlers in Kansas to have guns to protect themselves against their pro-slavery opponents. If one reads only Scalia and Stevens, one would believe that there is no dynamism to the Constitution, which is both stupid as a theory of interpretation and, more to the point, completely misleading as a way of understanding the American constitutional tradition.

15 Responses to “Hellerboy”

  1. Kevin Baker Says:

    Thomas, I strongly urge both you and Prof. Levinson to read this.

    The Constitution isn’t supposed to be a “living document,” and while yes, both Scalia and Stevens “selectively read” the history, at least Scalia read it accurately. Stevens made up his interpretations as he went along.

  2. dr mac Says:

    If 4 of 9 SCOTUS justices can so easily cast aside the Bill of Rights then I will always hang on to my guns, thank you very much.

  3. Nomen Nescio Says:

    Kevin, where did you get your history degree to declare which of those two lawyers got their historical analysis more closely correct? 😉

    part of the “living constitution” argument is that we cannot help but have a living constitution. we’re constantly having to decide just how the constitution applies to situations the founders never faced (admittedly, this was much less the case in Heller than in most cases, but living constitutionalism is not just about Heller) but the founders are all dead, so we have no way of knowing how they would apply it to the circumstances. we must apply it ourselves, which means we must make sense of it ourselves as best we are able. whether it was “supposed” to be used this way is irrelevant, because we basically can’t use it any other.

  4. KCSteve Says:

    Wasn’t “Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control” rather thoroughly debunked? Not the sort of thing I’d want someone quoting in this case.

  5. Ron W Says:

    The “living Constitution” concept is method of arbitrary government whereby the judiciary can circumvent that “judges are to be bound by the law” as are the executive and legislative branches according to Article VI, Sections 2 and 3 of “the Supreme Law of the Land”. Just let a proponent of this “living consitution” thinking enter into a legally bidining contract and have someone else say, “oh, this is a living contract subject to my interpretation” No, I don’t think they would go along with that and neither should “we the people”.

  6. teqjack Says:

    Really, when was the last time you saw a SCOTUS justice — liberal, conservative, or otherwise — rule that “I hate this outcome, but this is what the law says,” or something along those lines?

    Right off the top of my head? Well, in Heller maybe, since at least one wanted to send it back to a lower court in the hope that there a ban would be found “reasonable” and while all nine stated the 2nd affirms an individual right a couple grumbled that the Founders should have ignored the precedents of common law and declared government to hold all weapon rights (Stevens) and one wanted the lower court to consider a total ban “reasonable” (Breyer).

    But a better one might be Kelo, in which the majority quite explicitly said that the laws in that case, while constitutional, were extremely bad and should be re-written.

  7. gattsuru Says:

    Cornell’s writing wasn’t as badly debunked as Bellesiles’ work was; the former is merely poorly written and misleading, while the latter was actually fraudulent.

    That said, I wouldn’t want to use Cornell’s book in a SCOTUS decision, even if he did agree with my viewpoint. The man’s funding comes from the Joyce Foundation, his cites are misleading, and the work as a whole is not exactly well-written. That he managed to find the Penn State Constitution to be a quasi-collective right demonstrates exactly how little he cared for factual accuracy.

  8. Lyle Says:

    This is a boringly common leftist meme.

    Everything is “complicated”. Translation– The rules are old, they don’t apply to me in my unique situation, they were made by dead people, so in effect there are no rules except the ones I want, for me, today. Tomorrow? We’ll see.

    Confidence is a sign of arrogance, or of a closed mind. See above. Everything is subject to redefinition, based on the new inventions that come along daily. There is no knowledge, only opinions, old thinking, and people’s inability to agree with me.

    Showing a lack of respect for one’s dissenters is bad, yadda yadda (so long as the dissenter is Leftist. A Leftist practicing dissent is the very definition of good and proper Americanism).

    Heard it all back in the ’60s, Baby. Over and over and over and over……

    And it’s cute how the term “originalism” is use as an epithet, as though it’s a form of religious extremism or something. OK, I’ll violate your lease and then accuse you of being an “originalist” if you want it enforced. What? You own property? I’ll use it. There are many complex reasons why I should have use of your property. Don’t show me that deed, you originalist. That is a “living deed” subject to interpretations that make sense here, today, not somewhere else, not yesterday, you old fuddy duddy.

    That attitude is saying, in essence, that there is no objective reality, but more importantly, it means there are no standards by which I must behaive in my dealings with other people. It lets me off the hook, doesn’t it? “If it feels good, do it.” Remember that one?

    In the case of the Bill of Rights, there is a clear and definable reality, based on clear and simple principles of Liberty. That I am typing on a computer keyboard and disseminating this message electronically does not change one iota of the First Amendment. That ultimate power is to reside in the hands of the people, rather than in the hands of the government, is clearly stated in the founding documents and equally understandable.

    That many people hate the Bill of Rights and try to ditch it is another matter altogether. There is where your “complexity” arises—people trying to muddle the issues in order to skirt the law and violate human rights. There is precedent after precedent for that sort of thing happening every day throughout history. If it’s precedent you want, you have it for anything under the sun, but that doesn’t change the original meaning of things—it just makes for a lot of mixed up, confused, ignorant people, which in turn leaves the door open for tyranny.

    The only, the one and only application of the “living document” claims that we have to endure so often, which makes one scintilla of sense, is built right into the Constitution itself, and that is the process, specifically defined, by which we may amend it.

    Simple enough for you? Wrong question, I know. Complexity is what we’re supposed to crave, right? “What’s puzzling you is the nature of my game.”

  9. mike w. Says:

    Nomen – I strongly urge you (and the 4 justices who dissented in Heller) to heed the advice of the following quote.

    “Let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

    -Thomas Jefferson letter to William Johnson, June 12, 1823

    It sure seems like the Founders advocated an original intent approach to Constitutional interpretation and not this “living Constitution” BS.

  10. Dan Says:

    Following a living constitution will mean death to the republic.

  11. Mike Says:

    Levinson is full of crap. On one hand, you have respected works of research and document collections, and on the other a few works of fiction that have been widely discredited. The only reason she sees “debate” over which is correct, is because she’s got her fingers in her ears saying “la, la, la, la, la, la….”

    This is the same way modern liberals try to frame the whole “climate change” debate. One side is following scientific principles and the other is making stuff up as they go along. So all you have to do is use words like “consensus” to fool the people on the sidelines into thinking a real debate even exists. Levinson is no better at performing this task than Al Gore.

  12. Mikee Says:

    There are concepts regarding interpretation of language in legal analysis that have a long history and are generally accepted among essentially all who practice the law. One of these is that the plain meaning of words counts more than an interesting interpretation.

    For example, Scalia noted that if one says, “He filled and kicked the bucket,” to interpret it as “He filled the bucket and then died” is nonsensical, from a legal perspective.

    The old bumper sticker, “What part of ‘shall not be infringed’ don’t you understand” succinctly captures the essence of Gura’s case as presented to the Supremes; that four of them chose to answer the question with “All of it” is disturbing.

  13. Xrlq Says:

    Really, when was the last time you saw a SCOTUS justice — liberal, conservative, or otherwise — rule that “I hate this outcome, but this is what the law says,”

    From a liberal Justice, never. Simply doesn’t happen. To a (judicial) liberal, the Constitution is a “living” document, which is liberalspeak for “fuck whatever shit somebody actually wrote down on paper and voted on. I am the law, goddamn it. If I like something, it’s constitutional. If I don’t, it’s unconstitutional.”

    From conservative Justices, all the time. In Lawrence v. Texas (the Right to Sodomize case), Justice Thomas wrote separately for no other reason than to make that very point:

    I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

    Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.

    Note that that’s actually a twofer, as Justice Thomas quoted Justice Stewart having done the very same thing in an earlier case. So far, 2-0 in favor of conservatives ruling “I hate this outcome, but this is what the law says” while liberals never do. But I say the real score should be at least 3-0, I think, based only on the cases I can cite off the top of my head. While Justice Scalia didn’t write separately in Texas v. Johnson (the flag-burning case) to point out that he hated the result, doesn’t anyone seriously doubt that he did?

  14. matt d Says:

    I believe that Breyer gave a speech after the Kelo decision saying he thought the outcome was incorrect, and hoped that congress would pass anti-takings legislation, but that the decision was nonetheless the legally correct one. So that’d be one for the other side.


  15. Kirk Parker Says:


    Levinson is a he (Sanford => Sandy)

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