Jack Rakove: Scalia's selective 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....
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David E. Young - 10/9/2008
Professor Rakove was one of the fifteen professional academic historians and conlaw professors who signed on to an amicus brief supporting Washington DC in the Heller case. His brief contains a number of factual historical errors and gets far off track historically in dealing with the Second Amendment.
As can be seen by his presentation here, Prof. Rakove has gone down a slippery slope due to the term militia in the Second Amendment resulting in his treatment of the amendment as a military provision rather than a Bill of Rights protection based upon limits on state governments in existing state bills of rights.
For anyone interested in the details of the good Professor's historical errors and of how this diversion away from study of relevant Bill of Rights history has come about, read my HNN article severely critical of Prof. Rakove's and the other academics' amicus brief supporting Washingon DC in the Heller case. It is located on HNN at this link:
Brian Martin - 7/1/2008
From Stevens' dissent:
"In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act,"
Jack Miller wasn't convicted and the court remanded the case back to the previous Court to be retried. How is it that Stevens, Breyer, Souter, and Ginsberg could write and sign on to a dissent when they apparently didn't even know the most basic facts of one of the cases they cite?
Did Rakove miss that part to or is he only concerned with what he perceives to be errors by Scalia?
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