On the merits, I generally agree with the majority’s conclusion in McDonald v. Chicago that the Second Amendment applies to the states and not just the federal government; I also agree with the holding in Heller that the Second Amendment protects the right of individuals to possess and use guns. On the more specific question of what that means for state and local gun control laws, my own view (at least vaguely similar to that expressed by libertarian legal scholar Randy Barnett) is that a rough analogy to the First Amendment concept of “time, place & manner restrictions” should apply, permitting regulations that reasonably advance the compelling government interest in public safety. Under that test, a sweeping ban on handgun possession seems clearly overbroad; narrower regulations — such as requiring safety locks or cabinets, gun safety training, or similar measures — should be permissible.
Notwithstanding my view on the outcome of the case, I am delighted by the dissenting opinion of retiring Justice John Paul Stevens — specifically, Part VI of that opinion, in which Stevens lays out a sharp and devastating critique of Justice Scalia’s shoddy analytical approach. What Stevens says of Scalia’s concurring opinion in McDonald applies as well to the entire Scalia œuvre: the analysis “does not have nearly as much force as the rhetoric”.
Although JUSTICE SCALIA aspires to an “objective,” “neutral” method of substantive due process analysis, his actual method is nothing of the sort. Under the “historically focused” approach he advocates, numerous threshold questions arise before one ever gets to the history. At what level of generality should one frame the liberty interest in question? What does it mean for a right to be “‘deeply rooted in this Nation’s history and tradition,’”? By what standard will that proposition be tested? Which types of sources will count, and how will those sources be weighed and aggre gated? There is no objective, neutral answer to these questions. There is not even a theory—at least, JUSTICE SCALIA provides none—of how to go about answering them.
My point is not to criticize judges’ use of history in general or to suggest that it always generates indeterminate answers; I have already emphasized that historical study can discipline as well as enrich substantive due process analysis. My point is simply that JUSTICE SCALIA’s defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtues, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his historical analysis. Worse, they may be buried in the analysis.
Stevens is absolutely correct that Scalia’s approach “invites not only bad history, but also bad constitutional law.” The fact that Scalia managed to reach what I consider to be the correct outcome in this case doesn’t alter that assessment. It’s nice to see Justice Stevens departing, not with a whimper, but with a bang.
Filed under: Bleak House | Tagged: constituion, courts, history, huntin' shootin' & fishin', law, politics | Leave a Comment »