United States: Assessing Heller
Sanford Levinson*
Second Amendment to U.S. Constitution—gun control—right to bear arms—originalism
The June 2008 decision by the United States Supreme Court in District of
Columbia v. Heller1 will, for almost all non-U.S. readers, reinforce any preexisting impressions that American constitutional law is an extraordinarily
odd enterprise. There are at least two reasons for this prediction. The first
involves the subject matter of the case: the legal validity of a “gun control”
ordinance passed in the District of Columbia that effectively prohibits the private possession of handguns in the nation’s capital. Because Washington,
D.C., is not a “state” within the American constitutional structure—it is,
rather, a constitutionally created “federal enclave”—it is subject to whatever direct constraints may be placed on the national government by the
Constitution. These would include, most importantly, the Bill of Rights set
out in the first eight (or, for some, nine) amendments. Among these, obviously, is the Second Amendment: “A well regulated militia being necessary
to the security of a free State, the right of the People to keep and bear arms
shall not be infringed.”2 Central to the debate about the Second Amendment
is the relative weight to be placed on the “preamble” to the amendment as
against the final clause. What is the relevance of the language about “[a]
well regulated Militia” or “militia” to understanding the scope of “the right of
the People” (or “people”) to “keep and bear arms,” not to mention the meaning given “infringe[ment],” which, if given the most capacious meaning,
would seemingly prevent almost all regulation?3
Even if the grammatical structure of the amendment were more clear, it would
still remain an oddity of the U.S. Constitution, from the perspective of comparative
constitutional analysis, that it speaks to the question of the control of firearms in
the first place. Unlike the U.S. Constitution of 1787 (or 1791, the date the Second
* W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas
Law School. Email: [email protected]
1
128 S. Ct. 2783 (2008).
2
Interestingly enough, there are two extant versions of the amendment. The one quoted above in
the text is the version that Congress sent to the states and was, presumably, ratified by the state
legislatures. However, the version passed by the House and Senate prior to submission to the states
is different both in punctuation and capitalization: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Fortunately, these differences played no role in the Supreme Court’s decision, but, however minor
they are, they serve as an apt symbol of the contention and, quite often, acrimony, that attaches to
any attempt to offer a definitive interpretation of the Second Amendment.
3
See, among many other possibilities, Sanford Levinson, The Embarrassing Second Amendment, 99
YALE L. J. 637 (1989).
© The Author 2009. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
I•CON, Volume 7, Number 2, pp. 316–328 doi:10.1093/icon/mop002
Advance Access publication March 18, 2009
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Amendment was added to the original text), it is likely that most modern constitutions are drafted under the sway of an almost literally thoughtless adoption of the
Weberian understanding of the state, in which it is presumed that any state worth
its name will have a monopoly over the legitimate use of weaponry and, therefore,
of its possession as well. Few analysts distinguish between the control and punishment of the actual resort to violence, which is generally uncontroversial,4 as
against control and punishment of the the very possession of potential means of
violence by the citizenry. Consider the fact that even countries that, at least from
the American perspective, have stringent limits on freedom of speech—such as
the United Kingdom’s laws regarding libel or invasion of privacy or other countries’ prohibitions of so-called hate speech—do not prohibit the possession of printing presses because of the threat posed by their potential use for illicit purposes. No
doubt many readers will find this an odd analogy—who could really compare
private ownership of printing presses with private ownership of handguns?—but
that may simply reveal the differences between constitutional discourse within
the United States and that commonly found in the rest of the world.
Many non-Americans, it is fair to say, cringe with horror at the prevalence of
firearms within the United States; although obviously one cannot know for certain, it is estimated that there are well over 250 million firearms in private hands.5
Given that the total current population is only about 300 million, many of whom
are young children or adults opposed to, or uncomfortable with, private firearms,
it seems clear that many Americans who do possess guns are likely to have multiple firearms. And, of course, one of the major interest groups in U.S. politics is the
National Rifle Association, with roughly three million members and a formidable
lobbying machine at both the national and state levels of the polity. One simply
cannot understand U.S. politics in general without paying adequate attention to
what has been termed the ongoing “culture war” between gun owners and those
who wish to limit the availability of guns.6
In any event, not only is Heller by far the most extensive consideration of the
Second Amendment by the Supreme Court in its history; more significantly for
many, it is also the first time in U.S. history that the Supreme Court has invoked the
amendment to invalidate a statute or, as in this case, a city ordinance that is directly
subject to the restraints of the Bill of Rights: the functional equivalent of a federal
statute. A five-justice majority of the Court, through a majority opinion written by
4
Any limits would require a full-blown theory of the circumstances in which violent revolution is justifiable, as was developed, of course, during the run-up to the American Revolution of 1775–1783.
5
See, e.g., How Many Guns Are There and Who Owns Them?—Ownership by Private Citizens,
http://www.libraryindex.com/pages/1722/How-Many-Guns-Are-There-Who-Owns-ThemOWNERSHIP-BY-PRIVATE-CITIZENS.html (last visited Feb. 18, 2009).
6
See, e.g., MARK V. TUSHNET, OUT OF RANGE: WHY THE CONSTITUTION CAN’T END THE BATTLE OVER GUNS
(Oxford Univ. Press 2007). For a review of Tushnet and of Saul Cornell’s A WELL-REGULATED MILITIA:
THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA (Oxford Univ. Press 2006), see Sanford Levinson, Guns and the Constitution: A Complex Relationship, 36 REVIEWS IN AM. HIST. 1 (2008).
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Justice Antonin Scalia, held that the District of Columbia ordinance was, indeed,
unconstitutional inasmuch as it infringed the right, in their view, protected by the
Second Amendment, to possess a handgun within the privacy of one’s home (the
symbolic “castle”) as a potential means of self-defense against threatening intruders. Among other things, the majority opinion basically reduced to a nullity any
operative importance of the “militia”-oriented preamble and, instead, viewed the
amendment entirely from what might be termed a private, individualized perspective of self-defense. There were strong and passionate dissents submitted by Justices
John Paul Stevens and Stephen Breyer, each joined by the other and by Justices
Ruth Bader Ginsburg and David Souter as well. Both dissents paid far more attention to the preamble as controlling the scope of the clause that followed it; Justice
Breyer, especially, counseled the wisdom of judicial deference to legislative judgments about such volatile issues as the best way to reduce violence.
The fact that the Supreme Court, even if only by one vote, granted constitutional protection to the private possession of firearms is enough in itself to
strike many outside observers as an especially interesting (or, for some,
appalling) example of “American exceptionalism.” But far more than the
result makes Heller of special interest even to American law professors, like
myself, who, in fact, have little problem with the specific result—that is, the
invalidation of the D.C. ordinance.
So now we turn to the second reason that Heller has provoked such wide interest and sometimes bitter controversy and castigation. That reason is the particular methodology or approach to constitutional interpretation invoked by Justice
Scalia’s majority opinion. Although, no doubt, one’s evaluation of the case will
almost inevitably be, in part, a function of one’s underlying views on the merits of
“gun control” versus “gun rights,” that in itself would definitely not explain the
degree of acrimony exhibited by both opponents and devotees of the opinion. Key
to understanding this is the description offered by former Harvard Law School
professor Cass Sunstein at the very beginning of his recent Harvard Law Review
article analyzing Scalia’s opinion. It is, without doubt, “the most explicitly and
self-consciously originalist opinion in the history of the Supreme Court.”7
“Originalism” includes, in almost all of its variants, the view that the meaning of
the constitutional text is limited significantly to the notions and beliefs likely to
have been held at the time of the origins of the text. Some analysts focus on the
beliefs (or “intentions”) of the drafters or ratifiers of the text; others concentrate far
more on the “public meaning” likely to have been present among the original
audience reading the text in question. But almost all self-proclaimed “originalists”
join in rejecting a “living” or “dynamic” approach to constitutional interpretation
that is significantly liberated from the limits of the original drafters or audience.8
7
Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 HARV. L. REV. 246
(2008).
8
The exception to the general description in the text is Yale law professor Jack M. Balkin, who has
constructed an intricate and fascinating blend of “originalism” and “dynamism” in constitutional
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Much could be—and has been—said about the cogency of “originalism”
as a method of constitutional analysis. It is probably fair to say that few if any
judges in other constitutional polities around the world are as committed as
Scalia to privileging what the method’s critics would call “the dead hand of
the past” against the felt needs of modern society. However, it is important to
realize that the debate about the Court’s opinion in Heller cannot really be
understood simply in dyadic terms, whether as a struggle between supporters of gun rights as distinguished from partisans of gun control or even as a
debate between committed originalists, on one side, all of whom agree as to
the historical meaning of the Second Amendment, and nonoriginalists, on
the other, who call for a more dynamic approach to constitutional interpretation. Matters are much more complicated than that.
For one thing, I am only one of several politically liberal nonoriginalist legal
academics who believe that the Constitution is best interpreted as protecting
some degree of private possession of firearms.9 Even more to the point, with
regard to grasping the complexity of the contemporary debate, is the fact that
some strikingly hostile responses to Heller have been written by judges and
scholars usually (and accurately) identified with the conservative politics and
general approach to constitutional analysis of the current majority of the
Supreme Court. The complexity of the response to Heller, as much as the decision itself, may be especially illuminating about contemporary divisions within
the entire American legal order and the extent to which people may not be so
predictable as one might otherwise think.
Consider, for example, the fact that one strain identified with contemporary
conservatism (but not only conservatism) in the United States is an emphasis on
“judicial restraint” and, concomitantly, a criticism of ostensibly activist judges
who read their own political preferences into the often opaque text of the
Constitution. Thus two especially distinguished federal judges, Richard Posner
and J. Harvie Wilkinson, writing from the perspective of a judicial restraint–
oriented conservatism, have offered remarkably harsh criticisms of what they
deem to be the unwarranted intervention by the Court in an extremely volatile
issue of American politics.10 Indeed, Wilkinson pays Heller what for conservatives
interpretation. See, e.g., Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST.
COMM. 427 (2007).
9
And, for what it is worth, the Court’s decision was a de facto gift of major proportions to the
Obama campaign inasmuch as it effectively took the issue of guns off the table with regard to the
2008 presidential campaign, which would most certainly have not been the case had the dissenters found a fifth vote to uphold the draconian D.C. ordinance. One can have little doubt that thencandidate Senator Obama was grateful to be able to embrace the result in Heller and not to have to
wrestle with the consequences of a decision that reflected the views of the dissenters.
10
See Richard Posner, In Defense of Looseness, THE NEW REPUBLIC, Aug. 27, 2008, available at http://
www.tnr.com/story_print.html?id=d2f38db8-3c8a-477e-bd0a-5bd56de0e7c0; J. Harvie Wilkinson III, Of Guns, Abortion, and the Unraveling Rule of Law, 95 VA. L. REV. (forthcoming 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265118.
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is the ultimate insult, which is to compare it, in its overreaching, to the conservative’s bête noire Roe v. Wade, the 1973 abortion decision.11
It would be a mistake, to be sure, to overestimate the similarities between
Posner’s and Wilkinson’s critiques. Posner is a famous devotee of judicial
prudentialism—what he calls “pragmatism”—which for him usually translates into some kind of economic cost-benefit analysis.12 He thus has neardisdain for the Court’s almost talismanic reliance on the equivalent of ancient
history to decide problems of contemporary importance. Posner’s great hero
is Oliver Wendell Holmes, and one can be sure that he agrees with Holmes’s
1897 comment, in The Path of the Law, that although “the blackletter man
may be the man of the present, … the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a
rule of law than that so it was laid down in the time of Henry IV. It is still
more revolting if the grounds upon which it was laid down have vanished
long since, and the rule simply persists from blind imitation of the past.”13
Nothing could be more antithetical to Posner’s approach than the concluding words of Scalia’s opinion. Even as he notes “the problem of handgun violence in this society” and the possibility that “prohibition of handgun ownership
is a solution” and the fact, as well, that “some think that the Second Amendment
is outmoded” in contemporary society, Scalia goes on to say, “That is perhaps
debatable, but what is not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.”14 Indeed, Scalia has spent dozens
of pages arguing that it is the Court’s role to give it the meaning it ostensibly
had in 1791. Wilkinson is far more respectful of the claims of history than is
Posner, but still, he argues, the burden of proof should be on the interventionist
judge to demonstrate the clarity of the historical materials; he believes that
Scalia did not meet this burden. Thus the analogy to Roe.
In many ways, though, the most remarkable critique is that written by
Nelson Lund,15 who is widely regarded as very conservative politically, a
strong supporter of gun rights, and a devotee of originalism. Unlike Posner
and Wilkinson, Lund believes that a properly structured originalist argument could easily support the Court’s decision. That being said, he describes
Scalia’s opinion as a betrayal of originalist methodology, regardless of the
fact that Lund finds the result fortuitously correct.
11
410 U.S. 113 (1973).
12
One of Posner’s many books is OVERCOMING LAW (Harvard Univ. Press 1995), a title that it is impossible to imagine Judge Wilkinson (or, for that matter, practically any other sitting judge) using
to describe his basic jurisprudence.
13
Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457 (1897), available at http://
www.constitution.org/lrev/owh/path_law.htm.
14
15
128 S. Ct. at 2822.
Who is, incidentally, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University, in Arlington, VA.
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Thus, Lund writes, Heller was “a near perfect opportunity for the Court to
demonstrate that original meaning jurisprudence is not just ‘living constitutionalism for conservatives.’”16 And, as Sunstein notes, Scalia insisted that, indeed,
he was embracing originalism and rejecting a notion of “living constitutionalism,” which, according to Lund, has generated de facto amendment of the
Constitution “through judicial fiat.”17 Whatever Scalia’s professions, though,
Lund describes his opinion as a grievous failure (save for the correct result): “[T]
he Court’s reasoning is at critical points so defective—and so transparently defective in some respects—that Heller should be seen as an embarrassment for those
who joined the majority opinion. I fear that it may also be widely (though
unfairly) seen as an embarrassment for the interpretive approach that the Court
purported to employ. Originalism deserved better from its judicial defenders.”
Part of the reason for Lund’s disdain is Scalia’s reliance on many sources written well after the 1791 entry of the Second Amendment into the Constitution. It
is surely legitimate, if one believes (as I do) in a “living Constitution,” to cite the
famous 1856 “Bleeding Kansas” speech by Massachusetts Senator Charles
Sumner,18 but for someone who professes to be a strong “originalist,” it is peculiar
to do so. Had there been true stability of meaning over the intervening years, the
citation might not have been problematic, but there is in recent scholarship a
particular emphasis on changes in the meaning of the Second Amendment during the full half-century that elapsed between 1791 and Sumner’s speech.19
Similarly, legal historian David Konig has written a devastating article demonstrating that the nineteenth century sources on which Scalia relies for his discussion of the general relationship between preambles and the texts of the following
laws take a significantly different view than was present among most eighteenth
century commentators.20 This “a-temporality”21 of Scalia’s opinion is not the only
thing that draws Lund’s ire. Also central is Scalia’s almost casual affirmation of
the constitutional legitimacy of many existing federal laws regulating firearms.
16
Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, U. CAL. L. REV. (forthcoming 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757.
17
Id.
18
See 128 S. Ct. at 2807.
19
This is a major theme of Saul Cornell’s book, supra note 6.
20
David Thomas Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the
Political culture of Written Constitutions in Revolutionary America, 56 UCLA L. REV. (forthcoming 2009).
Reva Siegel has pointed, similarly, to the “temporal oddities in the evidence the majority marshals” to
support its view as to the ostensible original meaning of the amendment. She offers, as the most patent example of such “temporal incongruity,” the fact that “the majority starts and finishes its argument that ‘bear arms’ has nonmilitary meanings by citing a dissenting opinion that Justice Ginsburg
wrote in 1998 that in turn cites a 1996 edition of Black’s Law Dictionary.” Reva B. Siegel, Dead or
Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 196–197 (2008).
21
I owe the term to Mark Tushnet.
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I have, in another venue,22 argued that Heller may well turn out to be a
relatively unimportant decision with regard to the practicalities of litigation
in the United States. The reason is simple: In one of the most remarkable features of the opinion, Justice Scalia was careful to stipulate, albeit gratuitously,
that most existing laws regulating firearms outside the extremely narrow
confines of the home would probably be upheld. Thus, part III begins by noting that, “[l]ike most rights, the right secured by the Second Amendment is
not unlimited,”23 and he goes on to recognize a plethora of limits. For example,
he mentioned, specifically, such common laws as those prohibiting possession
of firearms by convicted felons or by the mentally ill. Similarly, Scalia is quick
to assert the legitimacy of regulating firearms outside the home or prohibiting
“unusual” firearms. There is almost no trace of originalist analysis—or, it is
fair to say, any other kind of analysis—in part III.
If, for example, one takes seriously the notion that persons have a right to
a firearm (in their own home) as a potential means of self-defense, one can
certainly ask why all felons, including those convicted of distinctly nonviolent crimes, should be deprived of this right. A popular example in such arguments is the American celebrity Martha Stewart, who served time in prison
for lying to an F.B.I. agent investigating the occurrence of insider stock trading. Should that really be sufficient to strip her of rights that she presumably
had prior to her conviction? One might even ask similar questions with
regard to at least some persons within the very broad category of those
defined as “mentally ill.” It might be easy enough, ironically or not, to justify
excluding all mentally ill persons from membership in a militia, though it
seems considerably more difficult to justify a blanket prohibition of owning
firearms once one has liberated the Second Amendment from its linkage with
service in a militia and, instead, defined it as a bastion of an individual right
to self-defense. Similarly, why should the legal possession of a handgun be
confined to the premises of one’s home if one is, for example, about to make a
foray into a crime-ridden public area? Even if one disagrees with the particular answers to such questions that Lund and others who agree with him
might understand the Constitution as providing, his questions are scarcely
trivial and deserve a far more systematic answer than the casual ex cathedra
pronouncements given by Scalia and his fellow justices in the majority.
One can certainly wonder why Scalia went out of his way to offer such
dicta—or de facto advisory opinions. Although there is no direct evidence,
one suspects that the most likely explanation has to do with the internal bargaining of the five justices in the majority. It certainly would not be surprising if Justice Anthony Kennedy threatened to withhold his vote from Scalia’s
opinion if it did not, gratuitously or not, take pains to indicate its minimal
22
For Whom Is the Heller Decision Important and Why? LEWIS & CLARK L. REV. (forthcoming 2009).
23
128 S. Ct. at 2816.
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scope.24 One must always remember that Supreme Court opinions are often
the products of careful negotiation, and, as is likely with such products—
recall the common adage that a camel is a horse designed by a committee—
intellectual coherence may be secondary to the objective of gaining, in this
instance, the all-important fifth vote needed to turn what might otherwise
have been a “plurality” opinion into the “Opinion for the Court.”25 Perhaps
one might expect opinions signed only by a single justice, whether in concurrence or dissent, to meet the standards one might set for papers in a law
school seminar. That would simply be a mistake with regard to a majority
opinion of a politically aware group of justices.
As is often the case, then, Heller may be just another example of the extent
to which reliance on the Supreme Court genuinely to affect broad issues of
American politics is merely a “hollow hope.”26 There have already been more
than sixty-five lower-court cases brought by attorneys eager to use Heller to
protect their clients who had run afoul of one or another state or federal guncontrol law, with, so far, notable lack of success.27 At this point, it appears
more likely than not that one will be able to say, some five or ten years from
now, that the opinion, for all of its rhetorical bombast, in fact signified relatively little of anything, even if one assumes that there will be no changes of
membership on the Court that would lead to Heller’s being overruled.
However, the practical import of Heller to practicing lawyers, whether
public prosecutors or defense attorneys, is no measure of the case’s interest to
legal academics, domestic or foreign. Precisely because of the ostentatious
commitment to “originalism” by Justice Scalia and the ensuing controversies
triggered by that commitment, there is no doubt that Heller will for some
years be of major interest to those legal academics who define themselves as
“constitutional theorists.” As already suggested, these controversies can be
grouped along three quite different dimensions.
1) What is the role of constitutional judges in the U.S.—or any other—
political system? Should they be willing to read a given constitution
as imposing genuine limits on the “political branches” of the polity
24
Sunstein, supra note 7, emphasizes the “minimalism” of Heller.
25
See, e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738
(2007) (where Justice Kennedy refused to sign Justice Roberts’s opinion and, instead, wrote a concurrence in the judgment, which deprived Roberts’s opinion of its imprimatur as the “Opinion of
the Court”).
26
See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (Univ. Chicago
Press, 2d ed. 2008) (the answer is rarely, if ever).
27
U.C.L.A. law professor Adam Winkler is maintaining an invaluable record of post-Heller litigation. The principal exception to the generalization offered in the text appears to be a New York
magistrate who has held that Heller forbids stripping someone who has been indicted, but not
convicted, of engaging in child pornography from possessing a firearm.
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or, on the contrary, should they be committed to “restraint” and
“deference” to these branches, save for truly exceptional situations
(such as when the text of the constitution is unequivocally clear, for
example)? There is relatively little to add to the now century-long
debate about such issues, though Heller is certainly additional grist
for the mills owned by each side in that debate.
2) Assuming that judges are authorized to be more interventionist than
an extreme deferentialist model would suggest, is reliance on originalist history a suitable method for identifying the circumstances
under which intervention is proper? Or, for example, should judges
feel equally free, perhaps even freer, to consult ongoing traditions
that may be said to reveal the “fundamental” values underlying the
United States polity even if they are not explicitly guaranteed, in so
many words, by the Constitution’s text or embraced, at the time, by
the authors or original audiences of those texts?
As already suggested, it appears reasonably clear from historical
and other materials that by the mid-nineteenth century there was,
in fact, a strong consensus among most Americans, across party
lines and including, for example, the aforementioned abolitionist
Massachusetts Senator Charles Sumner and Chief Justice Roger Brook
Taney, author of the Court’s opinion in the Dred Scott case, that one of
the basic rights possessed by all American citizens was the right to
bear arms.28 Indeed, one of the explanations for Taney’s insistence that
no black could be an American citizen, for purposes of the Constitution,
was his belief that to recognize any black as a citizen would entail, logically, the recognition of a right to possess firearms.29 Contemporary
public opinion polling data demonstrates, fairly conclusively, that most
Americans do believe in some kind of individual right to possess
firearms,30 even as the same data show that most Americans support
greater control especially of handguns.31 But “control” for most people
does not mean the de facto “prohibition” present in the D.C. ordinance;
hence the broad support for the Court’s decision.
28
See, e.g., Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145 (2008).
29
See Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1857).
30
See, e.g., Joan Biskupic, Do You Have a Legal Right to Own a Gun, USA TODAY, Feb. 27, 2008,
available at http://www.usatoday.com/news/washington/2008-02-26-guns-cover_N.htm
(“Nearly three out of four Americans — 73% — believe the Second Amendment spells out an
individual right to own a firearm, according to a USA TODAY/Gallup Poll of 1,016 adults taken
Feb. 8–10.”).
31
See, e.g., The Harris Poll® #60, June 3, 2008, available at http://www.harrisinteractive.com/
harris_poll/index.asp?PID=914.
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This means, among other things, that anyone who, say, supports
Justice Kennedy’s opinion in Lawrence v. Texas,32 which invalidated a
state law criminalizing sodomy on the grounds that it no longer was congruent with the developing (and libertarian) standards of the American
people, whatever might have been the case even a couple of decades earlier, should have been sympathetic to a decision upholding the claims of
Mr. Heller. The problem, of course, is that Justice Scalia, especially,
though not uniquely among the members of the Court, despises the kind
of “dynamic” approach to the Constitution instantiated in Kennedy’s
opinion and could not possibly have written, or even signed, an opinion
along those lines. Kennedy, perhaps, had fewer scruples about signing
an opinion whose methodology is not his own, perhaps because of concessions he may have obtained in part III of Scalia’s opinion.
3) Finally, assuming that one shares the asserted view of Justice Scalia
that history does have some privileged role in determining constitutional meaning (as Lund most certainly does), does his opinion—or,
indeed, either of the two dissents—offer a positive or a negative
model of how properly to engage in the originalist enterprise? It is
worth noting that Justice Stevens’s dissent, in many ways, purported
to address Scalia in his own originalist terms and to demonstrate
that the amendment, correctly understood, had a very different
meaning from the one proffered by the majority. For Stevens (and
Breyer, in his own dissent), the amendment is far, far more closely
linked with service in a militia than is the case for Scalia. Some readers may well believe that Stevens provides a better model of how to
do historical analysis than does Scalia. Others—and I am very much
in this group, as discussed below—may instead be equally dismayed
by the performances of both Scalia and Stevens (Breyer is far less
interested in the historical record) and view them as demonstrating,
perhaps conclusively, the inadvisability of any judges purporting to
play the role of legal historian, unless their own training, which
they are certainly unlikely to have received in any conventional law
school, prepared them for that task.
Mark Tushnet once famously, and caustically, referred to the notion of the
“lawyer as astrophysicist,” by which he meant the tendency of very smart
lawyers to believe that a weekend’s immersion in the relevant materials
would enable them to hold their own as experts with any poor soul who had
actually spent years earning, say, a Ph.D. in history (let alone astrophysics).
Most judges, one hopes, are suitably modest about their talents as natural
32
539 U.S. 558 (2003).
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scientists. Would that were more the case with regard to history. Neither
Scalia nor Stevens would earn more than a D were they “real” historians;
indeed, they would have been thrown out of any self-respecting graduate
seminar in American legal history had they submitted their opinions as seminar papers, not least because both justices (or the clerks who actually wrote
the opinions) freely ignored much of the most important secondary scholarship written by “real historians” and shamelessly “cherry-picked” from the
primary sources only the materials that supported their conclusions.33
With regard to secondary scholarship, Justice Scalia, for example, takes
no notice of Saul Cornell’s recent book A Well-Regulated Militia: The Founding
Fathers and the Origins of Gun Control in America (2006). Cornell’s work
presents a dynamic reading of American constitutional history in which
what was only a common law (and not, therefore, constitutionalized) right
of self-defense in the eighteenth century becomes treated as a full-blown
constitutional right by the middle of the nineteenth century. Similarly, Justice
Stevens displays equal ignorance, which is both shameless and shameful, of
the excellent book written by the late Richard Uviller and William Merkel,
The Militia and the Right to Arms,34 which presents a “civic-republican” reading of the background of the amendment that, although “militia oriented,”
nonetheless supports a far more capacious right of law-abiding citizens to
bear arms than Stevens is willing to recognize. Indeed, Uviller and Merkl,
who are certainly no friends of the modern gun rights movement, are sufficiently honest historians to recognize that the original materials support,
even if they do not compel, what is sometimes called an “insurrectionist”
interpretation of the Second Amendment—one by which it tacitly recognizes
the legitimacy of violent overthrow of a corrupt government (as had occurred
in the United States during the Revolution) and, therefore, the availability of
firearms against the possibility of such a justified insurrection. To put it
mildly, Justice Stevens’s image of the militia is almost infinitely more statist.
More such examples could be given.
33
An unusually apt example of such cherry-picking is Justice Scalia’s invocation of what has come to
be called “anti-slavery constitutionalism” for the reading of the Second Amendment he endorses. One
may, with good reason, admire such radical lawyers as Joel Tiffany, author of A Treatise on the Unconstitutionality of American Slavery (Mnemosyme, photo. reprint 1969) (1849) or his compatriot Lysander Spooner, another devotee of gun rights, who wrote The Unconstitutionality of Slavery (Burt
Franklin, 2d ed. 1965) (1845). See 128 S.C. at 2807. But, given that it is truly unthinkable that Scalia
would endorse the theses announced in the titles of their books, why should he take seriously their
perhaps equally idiosyncratic views of the Second Amendment? Does Scalia believe, for example, that it
violated the Amendment for service in the national militia (and thus easy access to guns and the training in how to use them) to be limited to whites? See Second Militia Act of 1792, ch. 33, 1 Stat. 271
(1792), available at http://en.wikisource.org/wiki/Militia_Act_of_1792#Passed_May_8.2C_1792_
providing_federal_standards_for_the_organization_of_the_Militia.
34
See Sanford Levinson, Superb History, Dubious Constitutional and Political Theory: Comments on
Uviller and Merkel, The Militia and the Right to Arms, 12 WM. & MARY BILL RTS. J. 315 (2004).
Levinson
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United States
327
The most important aspects of genuine historians—one might hope this is
true of academics in general—are a sensitivity to nuance and an awareness
of the brute fact that historical materials, including prior cases, rarely speak
with the degree of monotonic certainty evoked by both Scalia and Stevens.
What is most dismaying in both opinions is the frequency of such expressions
as “cannot possibly be read to have held that,”35 “absolutely no evidence,”36
or “[t]he text of the Amendment, its history, and our decision in United States
v. Miller provide a clear answer”37 to the question of the meaning of the
Second Amendment. This is language more suitable to the playground than
to serious intellectual debate. Alas, though, it is the language that too many
lawyers learn is suitable when making adversarial arguments, and they most
certainly do not lose such habits when joining the bench.
Former New York Times correspondent Linda Greenhouse wrote a telling
anecdote about Justice Harry Blackmun’s early socialization into the ways of
writing as a Supreme Court justice shortly after his appointment to the Court
in 1969. The socializing agent was Justice Hugo Black, who had joined the
Court a full three decades earlier and who, as a true giant on the Court, was
much esteemed by Blackmun. “Early in Blackmun’s tenure,” Greenhouse
writes, “Black visited his chambers to offer some advice: ‘Always go to the
jugular. Never agonize in an opinion. Make it sound as though it’s just as
clear as crystal’”.38 As I have written elsewhere, “Few judges … have made
their reputation by confessing (at least in print) how close they were to deciding the case in the opposite direction.”39 This is, I think, not something that
we should be proud of in our own legal tradition, though, I confess, I am not
aware that any other legal tradition encourages genuine intellectual honesty on the part of those to whom it assigns the role of judge. Indeed, many
foreign systems do not allow the publication of concurrences or dissents at
all, lest they encourage onlookers to challenge the impersonal majesty of the
35
128 S. Ct. at 2814 (Scalia’s reference to Justice Stevens’s interpretation of United States v. Miller,
307 U.S. 174 (1939); “absolutely no evidence”).
36
Id. at 2804 (Scalia dismissing Stevens’s views of historical materials at time of the
Constitution).
37
Id. at 2822 (Stevens, J., dissenting).
38
Linda Greenhouse, BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN’S SUPREME COURT JOURNEY 60 (Macmillan 2005). Norman Dorsen was reminded, when reading an earlier version of this note, of an
anecdote he had once heard involving a woman who, when seated next to Justice Louis Brandeis
at a dinner party, inquired how judges make up their minds and write their opinions. According to
the story, the gist of Brandeis’s reply was, “When I am trying to decide a case I study every possible
aspect and then I come down on the side with the stronger argument, even if it is only 51–49 percent; but then, when I write the opinion, I write as if it were 100 percent to nothing.” Perhaps
Black had been socialized by Brandeis!
39
Sanford Levinson, The Rhetoric of the Judicial Opinion, in LAW’S STORIES: NARRATIVE AND RHETORIC IN
LAW 187, 188–189 (Peter Brooks & Paul Gewirtz eds., Yale Univ. Press 1996).
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law (and the court) presumably contained within a singular opinion written
in the name of “the Court.”
Perhaps I am violating my own reminder, issued earlier, that judges (or
their opinions) should not be evaluated by the same standards we apply to
our students or to each other. If true, as I think it is, that only raises the allimportant question of what standards we should use when reading opinions
that we cannot really respect, even if we happen to agree with the specific
outcomes. But that is the topic for a different essay.