An interesting take on Scalia's interpretation of history... by a historian who also submitted one of the legal briefs to the Supremes for the big 'D.C. gun case'.
Turns out he thinks that *both* Scalia and Stevens are pretty bad as 'historians', but that Scalia might be a bit worse for ignoring all of the two years of debate around the Constitution's adoption... and the written legislative history of what Congress and the Founders intended when they passed the proposals. :-)
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chicagotribune.com
chicagotribune.com
Scalia's selective history
By Jack Rakove
June 30, 2008
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.
Looking back
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.
Under this rule, one need not pay much attention to what we know about what the framers of the Constitution and its early amendments thought they were doing, or even how its clauses were debated during the constitutional deliberations of the late 1780s. By contrast, those debates are precisely what Stevens emphasizes in his dissent. Unlike Scalia, he assumes that the best way to get at the original meaning of the Constitution is to focus on the actual deliberations that produced its language, not to ask what a hypothetical citizen thought about the text in question.
Lest we forget
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.
Tracking the progress of the 2nd Amendment reveals another interesting factoid. As approved by the House of Representatives, the amendment referred to a militia "composed of the body of the people"—a definition that certainly resonates with Scalia's position. But that language was eliminated by the Senate—not in a fit of absent-mindedness, as gun-rights advocates sometimes suggest, but by a body intent on preserving the authority of Congress to decide how big a militia the country should have. Scalia's professed disdain for what is called "legislative history" makes this seemingly significant change irrelevant.
Other objections to Scalia's approach arise if one considers the public debate over the Constitution prior to its ratification. It is certainly helpful to know, for example, that when opponents such as George Mason worried that the militia under the Constitution might be "disarmed," they did not envision nasty Bureau of Alcohol, Tobacco, Firearms and Explosives agents going door-to-door confiscating private weapons, as the court implies, but rather that the militia would be disarmed through congressional neglect.
Scalia's downfall
Scalia's reluctance to discuss what was actually debated overlooks one other critical data point. He does mention a handful of references from the ratification debate that did allude to an avowedly private right to own and use arms—but without asking what became of them. The best known of these is the published dissent of the anti-Federalist minority of the Pennsylvania ratification convention, which called for constitutional recognition of a right to "bear arms for the defense of themselves and their own state, or for the purpose of killing game."
This was the closest anyone came to arguing explicitly for a private right of the kind Scalia describes in his opinion, and this statement appeared early enough in the public debate to become a rallying point for the Constitution's opponents. But that was not what happened. The dissent became a lightning rod for derision, and it instead fell inert on a debate that continued to revolve, not around the private ownership of firearms, but the benefits of a citizens' militia as an alternative to standing armies.
Points such as these are what leave me convinced that a different dissent, that of Justice Stevens, tells a more compelling and accurate historical story than Justice Scalia's. But alas, there is no High Court of Historical Review in which judicial statements about the evidence of history get to be challenged.
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.
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