Sandy Levinson, writing at Balkinization, has an interesting post on the Heller decision.
First, he makes a very astute political observation as to the effects of the decision on the presidential election. Specifically, that the ruling was actually a boon to Obama:
Just imagine what might happen if Justice Kennedy had joined his more moderate colleagues, as he did just the day before in providing the all-important fifth vote to invalidate the death penalty for rapists of children. One sudders at the prospect of Sen. McCain, or some 527group, saying the current Court both wants to protect child rapists and prevent parents from possessing handguns to defend themselves and their children against such marauders. Now all that Sen. McCain can say is that “only one vote” stands between the protection of gun rights and the ability of the state to “take away your guns.” I have no doubt that Sen. Obama, who has been eager to express his respect for the Second Amendment—and who quickly distanced himself from yesterday’s Louisiana decision—will try to reassure gun owners that he would certainly not appoint anyone who did not share his respect for the Amendment.
Quite right.
Now, given that it was a 5-4 decision (as was the child rape case), the ruling will still have both sides pointing to the split on the Court, but the fuel for the political fire would have been greater had the ruling gone the other way, as it would have been a far more controversial outcome.
Levinson’s reading of the ruling matches my initial views from last night. Specifically he notes:
Justice Scalia’s opinion, if one cuts through some of the bluster, is really quite moderate—he goes out of his way to support the legitimacy of much current federal regulation
I also thought that the following observation was interesting:
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.
[...]
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.
I find this interesting because while I have some sympathy to the “original intent” position, it has been waning for some time, and Levinson underscores here a good argument for such doubts: not only is it difficult to ascertain original intent, but it is wholly unclear that the Justices are especially well equipped at divining it. Legal scholars aren’t historians, and indeed legal argumentation and standards of evidence are quite different than those deployed by historians (and understandably so). Historians’ conclusions are often murky and tentative, while legal briefs have to advocate for a specific set of conclusions. Historians are upfront in acknowledging gaps in knowledge while lawyers/judges are more likely to only use evidence that support their views and ignore that which does not (kinda like, well, a lot of bloggers…).
A related note to the originalist position is as follows:
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.
At any rate, Levinson’s entire post is worth a read.
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June 27th, 2008 at 10:01 am
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