Thursday, June 26, 2008

A Few Preliminary Thoughts on Heller

For purposes of brevity, I’m going to assume in this post that everyone knows the basics about the Heller decision (which Justices took which side, the major sub-issues in the case, etc.)  If you haven’t had a chance to catch up on those matters yet, see this post, this summary of the majority opinion that Ed Whelan has up over at Bench Memos, or wade through the massive and growing array of perspectives on the case up on the main page at SCOTUSblog.  The Court’s opinion itself is here.  As for my own view, I’ll work up some more in depth analysis of the decision in the coming days.  But here are a few things that stood out to me immediately upon reading Scalia’s opinion and scanning the dissents:

-  I don’t really buy into the majority’s argument that the Court did not need to outline a standard of review for gun regulations in the Heller because other cases where that can be done will surely soon follow.  We’re going to see a nationwide wave of Second Amendment suits filed almost immediately (indeed, the NRA filed a suit challenging Chicago’s handgun ban minutes after the case came down today), and we might well see quite a bit of division among lower courts about whether to use an intermediate standard or something more like strict scrutiny.  During oral argument, Chief Justice Roberts did favorably opine that the Court wouldn’t necessarily have to announce a standard of review to decide the case, but I have to believe that the majority would have done so if all five Justices had been able to agree on an standard.

-  I was surprised at the length to which both the majority opinion and the dissents parsed the meaning of the words in the phrase ""to keep and bear arms."  I thought the meaning of the phrase "the people" in the operative clause and the word "militia" in prefatory clause were more important.  While those certainly did receive some discussion,  I didn't expect the arcane linguistic gymnastics that Scalia and Stevens engaged in about keeping and bearing arms.

-  Speaking of linguistic inquiry, I was reminded again that Scalia really, really loves citing dictionaries (both contemporary to the framers and current) in constitutional interpretation, considerably more so than any of the other Justices in the "conservative" block.

-  Near the beginning of the majority opinion, Scalia said this:

In interpreting this text [of the Second Amendment], we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical
meaning.” Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

Isn't that pretty flatly untrue? It seems to me that many of the clauses in the Constitution, especially in the Bill of Rights, contain what we think of as legal terms and phrases of art.  How many "ordinary" people in the the 1790's were familiar with Blackstone's Commentaries, the English Bill of Rights, etc., and really understood how those sources contributed meaning to the words and phrases the framers chose?  To the extent that passage describes a feature of Scalia's version of "ordinary meaning" originalism, I think it shows one of the flaws in his particular framework. 

-  Another big case, another long, rambling, and, shall we say, less-than-incisive dissent from Justice Breyer. (Of course, Justice Stevens wrote the main dissent, ie. the dissent that won the approval of all four dissenters.) And again, Breyer pushes for application of a pseudo-pragmatic standard of review --this time, a "balancing of interests" test-- that would entirely eviscerate a constitutional right he doesn't think should exist in modern American society. I'm sure I'll get around to reading his opinion in earnest at some point in the coming days or weeks.  Or months. Or years.  Whenever.


More on Heller (and the quite interesting ruling today in Davis v. FEC striking down the Millionaire's Amendment) later.

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