Jack Rakove: Scalia's selective history
[Jack Rakove teaches history and political science at Stanford University. His book, "Original Meanings: Politics and Ideas in the Making of the Constitution" was awarded the Pulitzer Prize in History.]
Appeals to the evidence of history figured prominently in last week's Supreme Court decision in District of Columbia vs. Heller, striking down a sweeping ban on handguns and affirming that the 2nd Amendment protects a fundamentally individual right "to keep and bear arms." Yet read the two main opinions by Justices Antonin Scalia (for the conservative majority) and John Paul Stevens (in dissent), and you will see that different ways of defining and reading what counts as historical evidence expose a fault line between them.
One would have to be terribly naive to think that how these two very amateur historians reason about history actually explains why the court divided as it did. But it does reveal important differences in how we think about the origins of the Constitution and its interpretation, and thus judge which argument seems more persuasive.
As the lead author of a historians' amicus curiae, or friend-of-the-court, brief filed in support of the district, I persist in thinking that Stevens has the better account of why the 2nd Amendment was adopted. Here's why.
Begin with what I read as the historical fault line. Scalia's opinion argues that private ownership of firearms for personal use, including self-defense, was a "pre-existing" right that adoption of the amendment only confirmed. The addition of the prefatory statement about the value of "a well-regulated militia" gave a further purpose to this right, but did not otherwise alter its prior understanding. Scalia actually has very little to say about why the amendment was even adopted. He says almost nothing about the constitutional debates of 1787-1789, and dismissively observes that relying on the actual "drafting history of the 2nd Amendment" would be of "dubious" value.
Scalia's preferred method of interpretation pivots on the idea of recovering the "normal meaning" that "ordinary citizens" would ascribe to the clause in question. In the scholarly literature on this subject, this is often referred to as "public meaning." It imagines something like this: a citizen reads the Constitution with the best dictionaries available at his side, some knowledge of the history of how the relevant terms have been used, and conscientiously asks what the clause in question means....
If one takes that approach, Scalia's confident pronouncements about the obvious meaning of the 2nd Amendment look problematic on several grounds.
One is that the definition of the key term "militia" was more malleable, and more the subject of active dispute, than his opinion suggests. Scalia argues that when the Constitution empowered Congress to organize, arm and discipline the militia, it only allowed it to regulate a "pre-existing" institution that traditionally consisted of the free adult males of the community, ranging in age from adolescence to senescence. The definition of militia, in other words, was fixed by usage and immune to alteration. Neither Congress (nor presumably the states) could "create" a new kind of militia, Scalia observes, as they could an army or navy, but only "organize" what had been inherited. (Note here that Scalia casually equates the Constitution's actual language empowering Congress "to raise and support Armies" with his own verb "create," ignoring the fact that a Continental Army already existed.)
What this neglects is the central point in dispute in 1787-1789: whether that traditional militia was what the framers of the Constitution and the 2nd Amendment meant to preserve—or whether, based on its controversial performance during the Revolutionary War, it was what they meant to allow future Congresses, in their wisdom, to replace. Paying attention to how the militia clause was discussed both at Philadelphia in 1787 and during the ratification debates that followed demonstrates that this was what was actually at issue, not the private possession of firearms....
Read entire article at Chicago Tribune
Appeals to the evidence of history figured prominently in last week's Supreme Court decision in District of Columbia vs. Heller, striking down a sweeping ban on handguns and affirming that the 2nd Amendment protects a fundamentally individual right "to keep and bear arms." Yet read the two main opinions by Justices Antonin Scalia (for the conservative majority) and John Paul Stevens (in dissent), and you will see that different ways of defining and reading what counts as historical evidence expose a fault line between them.
One would have to be terribly naive to think that how these two very amateur historians reason about history actually explains why the court divided as it did. But it does reveal important differences in how we think about the origins of the Constitution and its interpretation, and thus judge which argument seems more persuasive.
As the lead author of a historians' amicus curiae, or friend-of-the-court, brief filed in support of the district, I persist in thinking that Stevens has the better account of why the 2nd Amendment was adopted. Here's why.
Begin with what I read as the historical fault line. Scalia's opinion argues that private ownership of firearms for personal use, including self-defense, was a "pre-existing" right that adoption of the amendment only confirmed. The addition of the prefatory statement about the value of "a well-regulated militia" gave a further purpose to this right, but did not otherwise alter its prior understanding. Scalia actually has very little to say about why the amendment was even adopted. He says almost nothing about the constitutional debates of 1787-1789, and dismissively observes that relying on the actual "drafting history of the 2nd Amendment" would be of "dubious" value.
Scalia's preferred method of interpretation pivots on the idea of recovering the "normal meaning" that "ordinary citizens" would ascribe to the clause in question. In the scholarly literature on this subject, this is often referred to as "public meaning." It imagines something like this: a citizen reads the Constitution with the best dictionaries available at his side, some knowledge of the history of how the relevant terms have been used, and conscientiously asks what the clause in question means....
If one takes that approach, Scalia's confident pronouncements about the obvious meaning of the 2nd Amendment look problematic on several grounds.
One is that the definition of the key term "militia" was more malleable, and more the subject of active dispute, than his opinion suggests. Scalia argues that when the Constitution empowered Congress to organize, arm and discipline the militia, it only allowed it to regulate a "pre-existing" institution that traditionally consisted of the free adult males of the community, ranging in age from adolescence to senescence. The definition of militia, in other words, was fixed by usage and immune to alteration. Neither Congress (nor presumably the states) could "create" a new kind of militia, Scalia observes, as they could an army or navy, but only "organize" what had been inherited. (Note here that Scalia casually equates the Constitution's actual language empowering Congress "to raise and support Armies" with his own verb "create," ignoring the fact that a Continental Army already existed.)
What this neglects is the central point in dispute in 1787-1789: whether that traditional militia was what the framers of the Constitution and the 2nd Amendment meant to preserve—or whether, based on its controversial performance during the Revolutionary War, it was what they meant to allow future Congresses, in their wisdom, to replace. Paying attention to how the militia clause was discussed both at Philadelphia in 1787 and during the ratification debates that followed demonstrates that this was what was actually at issue, not the private possession of firearms....