Sanford Levinson: DC v. Heller ... A Dismaying Performance By The Supreme Court
One can interpret today's decision in the Heller case from both"external" political perspectives or from a more"internal" legal one. I begin with the former: My own hope, which was spectacularly unrealized, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to"keep and bear arms" and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.
Unanimous acceptance of his sensible view might have helped to diminish at least some of the culture war that has been waged now for at least four decades between advocates of"gun rights" and"gun control," who have their own interests in demonizing their opponents. Instead, the Court fractured along an all-too-predictable 5-4 axis, with the five conservatives supporting the rights of gun owners and the four liberals (or, more accurately,"moderates") seemingly supporting the most extreme version of gun" control," which is outright prohibition. The Solicitor General also offered a way for the Court to make sure that gun control would not become a key issue in this year's presidential race. Now there is no avoiding it, though, as a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.
Then there are the"internal" features of the opinions, more interesting, no doubt, to lawyers (and law professors) than to pundits, but not without their broader interest. One of the most remarkable features of Justice Scalia's majority opinion 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. Thus 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 were a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions are what is sometimes called"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. Neither Scalia nor Stevens pays any real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence.
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.
All in all, a dismaying performance by the Supreme Court, whatever one thinks of the actual result.