Sandford Levinson on Heller Vs. DC

A “dismaying performance” by the Court, on all sides.

Levinson points out that both John Paul Stevens (who authored the dissent, i.e. the liberal) and Antonin Scalia (authored the majority opinion, the conservative) assume an originalist reductionistic view of 2nd Amendment.  Stevens stating that the record unequivocally against, Scalia for.


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.

This overly certain originalist position is particularly self-defeating for Scalia because:

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.


Published in: on June 27, 2008 at 4:34 pm  Comments (1)  
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  1. […] Posted by cjsmith under Law, Politics | Tags: Heller, Jack Balkin |   Following up on the point made by his colleague Sanford Levinson, Balkin (author of combination originalist and living constitutionalism) sees the living […]

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