Randy Barnett Comments on Heller in the WSJ.--

In the Wall Street Journal, Randy Barnett has some extravagant praise for Justice Scalia's opinion:

Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years -- evidence that was presented to the Court in numerous "friends of the court" briefs.

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" -- the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" -- or the original principles "underlying" the text -- to negate its original public meaning.

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or "precedents" that are inconsistent with the original public meaning of the text. This shows why elections matter -- especially presidential elections -- and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge.

Justice Stevens, in many respects my favorite justice, needs better clerks — or a better interpretive jurisprudence. As I noted earlier, he was led astray by the weak historian's brief, which not only misled Stevens about the past but induced him to use the tenuous and discredited mode of judicial reasoning that Randy identifies.

Justice Breyer's dissent, on the other hand, is just plain embarrassing — if possible, even more embarrassing than his book.

berlet98 (mail) (www):

June 27th, 2008

In what has become the typical 5-4 split on the Supreme Court--with 4 conservatives on the good side, 4 liberals on the bad side, and Justice Kennedy swinging in the middle, SCOTUS struck down the D.C. ban on the legal possession of handguns for self-defense. Score one for the good guys! (

I hope someone is keeping tally on the D.C. crime rate. If it goes up, watch for headlines, prime time specials, and rallies for new gun laws. If the crime rate goes down, watch for no media coverage. I'm betting on a plunging crime rate as Joe Average D.C. Citizen starts packing a weapon to ward off the already-armed reprobates.

One can only hope that the next Court sees a few more conservatives who just may determine there is no "right to privacy" in the Constitution and overturn Roe V. Wade. One can always dream, no?

6.27.2008 1:31am
One fundamental problem with the opinion, irrespective of its legal merits, is that it simply spends too much time bashing the opposition. This makes it look more like a petty spat than like a judicial opinion. What the public needs from an opinion of the Court is to know what the law is and why. Why the other point of view is wrong and full of it and dishonest and should be ashamed of itself etc. etc. etc. are matters that really, quite frankly, don't belong in a judicial opinion. Judicial opinions are not soapboxes for arguments or forums for intramural spats. Treating them as such diminishes the Court's, and Justice Scalia's, stature and public respect.
6.27.2008 1:57am
I had really hoped Justice Roberts would be able to reign Justice Scalia in and blunt his tendency to do this sort of thing. It does the Court no good.
6.27.2008 1:59am

I disagree on the basic principle: It seems to me that a reasoned explanation of why a dissent is wrong is essential to the judicial process. Judicial power must be based on reason, not mere will. At the same time, I agree that AS and JPS went at it for too long; apparently they kept it up at the court session, too -- see Tony Mauro's coverage at the BLT blog.
6.27.2008 2:01am
Oh, and I should add, not only too long, but also too harshly. It's unprofessional and inappropriate.
6.27.2008 2:03am
Originalism Is Useful (mail):

I think Stevens deserved what he got. Some of his arguments are ludicrous or predicated on falsehoods. For example, Miller was not convicted.
6.27.2008 3:24am
TTG (mail):
Just thought I'd point out, in relation to Barnett's reference to elections, that some thoughts on the futures of each Justice on the Court ought to be considered.

Roberts: b. 27 January 1955. Age 53. Will be 57 on Inauguration Day 2013, 61 in 2017.
Stevens: 20 April 1920. Age 88. Will be 92 in 2013, 96 in 2017.
Scalia: b. 11 March 1936. Age 72. Will be 76 in 2013, 80 in 2017.
Kennedy: b. 23 July 1936. Age 71. Will be 75 in 2013, 79 in 2017.
Souter: b. 17 September 1939. Age 68. Will be 73 in 2013, 77 in 2017.
Thomas: b. 23 June 1948. Age 60. Will be 64 in 2013, 68 in 2017.
Ginsburg: b. 15 March 1933. Age 75. Will be 79 in 2013, 83 in 2017.
Breyer: b. 15 August 1938. Age 69. Will be 74 in 2013, 78 in 2017.
Alito: b. 1 April 1950. Age 58. Will be 62 in 2013, 68 in 2017.

Since 1970, the average retirement age of a Justice is 79, and the average tenure 25.6 years. Oliver Wendell Holmes was the oldest sitting Justice ever, and retired at 90. Stevens has been on the Court since 1975, Scalia since 1986, Kennedy since 1988.

If anyone is interested, the average age of Stevens, Souter, Ginsburg and Breyer is 75, or 71 (rounded up) if you subtract Stevens. The average age of Roberts, Scalia, Thomas and Alito is 61 (rounded up).
6.27.2008 5:21am
J. Aldridge:
Funny how people talk about an "operative clause" when Madison said it had no operation!
6.27.2008 6:29am
Brad Ford (mail):
I find it ironic that justices who can "find" new rights eminating from the penumbra of the constitution cannot locate a right clearly written into the document.

According to the the NY Times, the money quote in the dissent is the majority "would have us believe the framers of the Constitution owuld
6.27.2008 9:16am
Brad Ford (mail):
Oops - Unable to complete prior post.
6.27.2008 9:16am
Scotch and Guns:
1) Stevens will not get better clerks because, like so many other justices, he is confined to hiring grads of the "top" law schools who went to Ivy undergrad and private NE prep schools. Incest isn't pretty. Funny, the liberals seem most wed to the idea of hiring only New England elites as their clerks (contrast their hiring practices with Kennedy, Thomas, &Roberts).

2) Mr. Alridge--see original public meaning.
6.27.2008 9:17am
Are you criticizing both of the dissents' holdings, or the manner in which they got there? Is there an alternative reason for overruling the DC Circuit that you would not find "embarrassing"?
6.27.2008 10:23am
Why Stevens?:
I'd be very curious to hear why Justice Stevens is "in many respects [your] favorite justice."
6.27.2008 10:29am
Tony Tutins (mail):
Stevens received his formal education completely within the state of Illinois, so he's not bound to hire anyone from the IV League or from NE prep schools.
6.27.2008 10:35am
absolutely right-the only "right" the liberal wing of the S. Court finds absolute is the right to abortion, one dreamed up a few decades back. ones actually mentioned can be struck down, limited or flat out ignored on a whim but abortion is sacred.
6.27.2008 10:53am
Praising Scalia's "method of interpretation" is a bit odd. He is as result-oriented in his interpretation as every other justice on the court with the exception of Thomas. It's just that Mr. Barnett seems to agree with Mr. Scalia's politics more often than with that of the other justices.

Scalia has certain political opinions (pro-federal government, pro-death penalty, anti-abortion, etc). In this case he likes the second amendment so got the right result (in my opinion), by picking those historical sources that support his view, in principle not different from what the dissent did. The only difference is that this time most of the historical sources happened to be on his side.
6.27.2008 11:56am
Orin Kerr says,

I disagree on the basic principle: It seems to me that a reasoned explanation of why a dissent is wrong is essential to the judicial process. Judicial power must be based on reason, not mere will.

I agree with this wholeheartedly. Compare Scalia's opinion in Heller with Kennedy's opinion in Kennedy v. Louisiana. Even if Scalia treated his majority opinion a bit too much like a dissent, he understood that his opinion would continue to be scrutinized, and his opinion should have answers to the dissent's points (which I don't think were frivolous by any means, though one might disagree with them). Kennedy tends to just announce an opinion and let the dissent's cries fall on deaf ears. I think his opinions would be better if he did more to engage in the debate.
6.27.2008 2:29pm
David E. Young (mail) (www):
Ask yourself this simple question: Why would there be obvious errors of historical fact in a brief from 15 professional academic historians and legal scholars written by a professional academic legal scholar?

Describing the historians' Heller amicus brief as "weak", as Jim Lindgren does, is actually a vast understatement. My critical analysis of the historians' brief points out a number of obvious historical errors and also explains why it is "inapplicable" (to use Madison's own word) to compare the English Bill of Rights to an American bill of rights.

You can read "Why DC's Gun Law is Unconstitutional" at the History News Network:
6.28.2008 11:49am