I said yes. Sandy Levinson at Balkinizationsays no, and suggests we are living in "parallel universes." More likely, we are using different standards, and perhaps different definitions of the word "scholarly."
Sandy seems define a scholarly Supreme Court opinion on a historical subject as one in which a Justice approaches the subject matter like an objective scholar, say a historian writing his Ph.D. thesis. That does comport with one definition of "scholarly," but given that Supreme Court Justices are not trained as historians but as advocates (lawyers), and don't have the resources to engage in original, objective historical scholarship while a case is pending even if they wanted to, or even to properly critique the existing literature, I think this is a bit much to ask.
(And yes, the fact that this is a bit much to ask suggests a weakness in originalism; indeed, any theory of constitutional interpretation that requires Justices to consider outside scholarship of any sort is going to be problematic in that (a) the Justices won't be trained in the relevant field; (b) knowledge is not static, and it's problematic to rely on a study done yesterday when a study published tomorrow may completely revise everyone's understanding of the subject; (c) the field itself may not be peopled by "objective" scholars, but by people with an ideological or other bias--there are certainly plenty of those in the field of history; and (d)the Justices will be sorely tempted to pick and choose which studies they wish to rely on.)
Anyway, I was using "scholarly" in the sense of "concerned with academic learning and research." By contrast, in past decades when the Supreme Court considered historical matters, the Justices often, not to put to fine a point on it, simply issued unsupported broad, often assertions for which they gave no relevant supporting citations, and which just so happened to support they outcome they wanted. I gave one example in my previous post, and here's another. In Goldberg v. Kelly, deciding that welfare benefits were a property right subject to procedural due process requirements, the Court made the ridiculous (and highly unscholarly) claim that "since its founding, the nation's basic commitment has been to foster the dignity and well-being of all persons within its border." Tell that to the Cherokees, and to the slaves!
Were the same logic applied to the commerce clause, the entire edifice of federal law and regulation hinged on the 'revised meaning' would be more then suspect. I trust that this is of no more concern to those folks, then it is to Justices Stevens or Breyer, who just make it all up as they go.
This "right of the people to bear arms" was found under Article I, Sec. 8 that read in part "To provide for organizing, arming, and disciplining the Militia..."
Heller was a NRA snow job.
Framer Thomas Scott said in August of 1789 if the words "No person religiously scrupulous shall be compelled to bear arms" was not removed from the Second Amendment, the amendment would be in "violation of another article in the Constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army."
No adult can be so stupid as to believe that. Therefore it is a lie.
The man's commitment to educated discussion is rather clear, if only from the aspect of nothingness being transparent.
Given your views, perhaps you could explain just why "...the right of the people..." in the 2nd Amendment is different "...the right of the people..." in the 1st Amendment? Or the 4th Amendment?
Hence the value placed upon 'scholarly' renderings can, and all too easily, be overdetermined as well.
If the term 'scholar' is to carry positive import, the manner in which the person or scholar in question regards the concept of and the validity of truth itself needs to be rendered. That doesn't mean it needs to be explicated in the meticulous manner an analytic philosopher would tend to approach the topic, but more than a token nod is needed if serious regard for rational inquiry and critique is to be sustained. Any sense of "objectivity" will necessarily hinge upon that more elemental substrate. Mere intellections are not the same thing as a rigorous standard that attempts coherent and cogently rendered/accessible lines of inquiry; extreme deflationary and contingent theories of truth are not the same thing as correspondence theories.
All the Justices' make it up as they go, witness Scalia, J. laughing at Wickard while holding Raich culpable...
The result is often embarrassing as history (such as several cases of decidedly amateur discussions of the founder's lives and writings), and gives the appearance (though generally not the reality) of the ruling and reasoning resting on things that often later turn out to be plain wrong (like Scalia's recent citing of a snopes-worthy claim about 30 Al Qaeda recidivists in his Boumediene dissent).
More often than not, these references are either altogether unnecessary to the reasoning of the decision, or would work better as pure hypotheticals rather than claims of actual fact.
"Already been discoverd"? I referenced no specific date. Further, Bellesiles' case is noted as but an extreme and more blatant example.
The point being that dependent upon the ideological, political, etc. "moment," the importance placed upon scholarly references and supports and lines of argumentation can, and all too easily, be overdetermined. Scholarship does not take place in a social/political and ideological vacuum.
Congrats though if you were among the very first to note the fraud and additionally began to act against it.
Not much different than the quote you don't like from Goldberg.
Far from it - and replete with irony.
Even the most acerbic, critical commentary (e.g., here, pdf) acknowledges there were twelve noteworthy cases. And importantly, the standard they set to acknowledge those twelve cases is extremely high - which is fine as one standard of measurement - but it serves to indicate their "twelve" reflects an absolute bare minimum, not the absolute truth.
The standard they used required "fingerprints, DNA, conclusive photographic match, or reliable, verified, or well corroborated intelligence reporting - identifies a specific former DoD detainee from GTMO as directly involved in terrorist activity." Iow, it's an absolute standard, again, meaning it reflects a bare minimum number, not some absolute or guaranteed truth.
As previously emphasized, sophistry and guile and rhetoric and b.s. in general is not to be confused with truth. Further still, Scalia gave specific citations to his data, meaning that information was transparently rendered and could then be very easily critiqued against other comparative standards and data. By contrast, the linked Seton Hall University School of Law study, by investing in (a great deal of) pompous rhetoric, seeks to advance the notion that they are forwarding the final word on the subject.
Which itself is "a snopes-worthy claim". Irony abounds.
It may be more than 12, but what's the evidence for 30?
Now, with a gun/militia change, there are really two places it could be put. Now, if it was a militia clause, the natural place for it would be in Article I, Section 8, around the 15th paragraph. However, if it was an individual rights clause, the natural place would be in Article I, Section 9, around the 3rd paragraph.
So, guess where Madison thought it should go?
(Also, the House Select Committee used the scheme, too. They would have placed it at the same place as Madison.)
Heller was a NRA snow job.
****
ROFLMAO.
Forty-Seven pro-Heller amici, and that eeevill NRA was behind them all!
I'd like to know just where "the people" who "established and ordained" our Constitution surrendered their right to personal defense. I cannot seem to lay my finger on that provision.
While the opinion did engage in an exegesis of the pre-existing right to arms, at least to English antecedents, the right goes much farther back than that.
"Civilized people are taught by logic, barbarians by necessity, communities by tradition; and the lesson is inculcated even in wild beasts by nature itself. They learn that they have to defend their own bodies and persons and lives from violence of any and every kind by all the means within their power"
-Cicero, Selected Political Speeches 234-
Oh, wait... Cicero was a political hack for the IGA (Imperatorial Gladius Association)...
ROFLMAO
1. Lawyers (at least trial lawyers) are pretty good historians, if by historian you mean someone skilled at sifting through a lot of facts to discern those that are relevant to some inquiry.
2. As one commenter noted, and as I myself have mentioned from time to time, the Justices routinely cite factual matter outside the record to support their positions, while the factual matter has never been tested by discovery or cross examination. So while they are, I believe, quite capable historians, they pervert the process by preciselythe sort of "scholarship" that Bernstein seems to praise them for.
3. Finally, on the notion that the Amendment's intro is relevant to whether there is an individual right, I think Scalia made a good point that the reason for giving some one a right does not affect the fact that the right was given.
Ok, I admit that I'm too lazy to look this up for context, but was the Court making a factual claim or an aspirational one? If the latter, it's like the Declaration of Independence (using Lincoln's words):
"[They] did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”
That's a phony quote.
True. Although I think Scalia was afraid of opening such a huge hole in federal regs, not that that is a valid excuse. Look at Heller and the lengths he went to reassure that most gun laws would pass Constitutional muster.
With the possible exception of a strict textualist approach, isn't all of this true of any theory of constitutional interpretation?
"Michael B. that doesn't make much sense. The Seton Hall study gave specific citations, just like Scalia. And I don't think you can claim that Scalia's rhetoric is never pompous." frankcross
Firstly, I'm not arguing "never" or "always" about anything. As with matters of taste, much of that would quickly devolve into mere quibbling and bickering, dependent upon ones views and tastes and the percived importance of the ruling in question.
More importantly, to the point you're emphasizing, that too can be argued as a matter of perspective, so I'll state from the outset I don't care to get caught up in this. Nonetheless I'll highlight the following.
While you are correct to note citations are used within the Seton Hall Univ. School of Law study, take note of the rhetoric they invest in, a form of rhetoric that is forwarded to make the case that Scalia's facts (and reasoning) are "false" and their facts are "truth" itself, with no grey area of note. An example of some of their rhetorical investments follows:
The very title of their report purports to reveal an "urban legend" (yet one I had barely heard of), with a subtitle that overtly claims to represent "the truth". Likewise, in the body of the report, it purports to reflect upon Scalia's "false" claims, again emphasizing the manichean narrative they are setting up: Seton Hall reflecting Truth; Scalia reflecting Falsehood. (Further, whether the number is thirty or twelve, while not irrelevant, is not decisive in terms of the majority opinion he wrote, it is one aspect of his argument only.)
And again, I already emphasized the fact that as one standard of measurement the Seton Hall Univ. propositions are perfectly fine, are more than fine. But they are attempting to forward something far more stark and absolute, and the evidence does not support such absolute assurances. Too, it isn't until the last page of the last appendix in the Seton Hall study that they state their standard, as previously quoted, a standard that requires "fingerprints, DNA, conclusive photographic match, or reliable, verified, or well corroborated intelligence reporting - identifies a specific former DoD detainee from GTMO as directly involved in terrorist activity."
Beyond that and as noted, some of this reflects perspective, reflects what weight this aspect of the overall opinion is given, reflects subjective assessments, etc. I do more decidedly think the manichean-like script or narrative Seton Hall Univ. School of Law is forwarding is over-ripe. It is one study and one reflection and one measurement, worthy enough from that perspective, but as Truth itself, vanquishing any and all Falsehoods, in turn used to scoff in a broader sense at Scalia's majority opinion, I'm not remotely close to buying what they're selling.
But that's really beside the point. Claiming 30 when there is no evidence of this is indefensible. The fact that it is "possibly true" is not a defense. You're right that it's not decisive, but it is still an indefensible falsehood. Whether the Seton Hall rhetoric was overheated is debatable, but that is a much smaller sin than a specific factual statement that is unsupported. Nothing can be proved false -- you can't prove a negative. Consequently, when one makes an affirmative claim, one is expected to support it with facts. That's the problem with Scalia's claim.
Suggesting that Scott's reference to the people's right of keeping arms is to Congress' Article 1, Section 8 powers over the militia rather than the proposed language that would become part of the Constitution as the Second Amendment if adopted is quite a stretch.
Scott was from Pennsylvania. In the PA Declaration of Rights, the conscientious scruples clause was entirely separate from the Second Amendment related predecessor. The same was true for the other state declarations of rights that had conscientious scruples clauses. All of the original states' declarations of rights had Second Amendment predecessors. It was the state declarations of rights that were the source for the protections found in the first eight amendments of the U.S. Bill of Rights. The conscientious objector clause was also separate from the Second Amendment predecessor in the proposals from the ratifying conventions for a Bill of Rights, which were based upon the state declarations of rights. Madison's combination of the Second Amendment protection and a conscientious objector provision was novel. They were both grouped with a large number of other private rights as noted below.
Ahcuah:
Actually, the House Select Committee did not place the Second Amendment predecessor in the exact position in the Constitution as Madison proposed. Madison placed his grouping of 21 individual rights protections directly after clause 3 in Article I, Section 9. The Select Committee placed the group directly before clause 3. The difference is slight, but Madison's location was directly after the two private rights protections found in the Constitution as written, while the Committee's was between those two protections. Thus, the Committee's location was even more emphatic about the private rights nature of those amendments, including the right to keep and bear arms and the concept of an armed populace, than Madison's was.
It is unfortunate that the Court did not make use of the newest information available about the development of the Second Amendment as presented in my book, The Founders' View of the Right to Bear Arms. The Founders' View clarifies many historical points that back up the majority in their Heller decision.
This seems like a major oversight as it would seem to set out an entirely different standard than the 1st ammendment "abridgement" and the 4th, where the operative test words are "unreasonable" and "violated".
Yes, you are correct on the relative placements that would have been done by Madison versus the House Committee. I said it inartfully (and was trying not to confuse my main point by adding too much info). I, in fact, had Richard Labunski's "James Madison and the Struggle for the Bill of Rights" in front of me as I checked it (the original proposals are in the Appendices).
I appreciate you insight that placing the amendments between other individual rights is even more indicative than if they were placed either before or after. (And, of course, they are very far from the original Militia clause.)
(And I see I described Scalia's opinion as the "majority" opinion when obviously I was absentmindedly confusing, in that specific regard, his Heller and Boumediene opinions.)
Speaking of scholarship -- I guess Mr. B's standard is that as long as there is no definitive proof that a person did not say what is being attributed to him, then it valid to assert that he did.
Graduate school would have been much easier if this had been the expectation of my professors.
No, that is not what I said, that is what you're imputing to me. I much more simply said it does not disprove in the manner that had been suggested; I did not say it positively did prove the contrary. Logic wasn't your forte in graduate school, I'd venture; if it was, time for some rudimentary review.
Bad, if I thought an exchange with you had prospects for being either interesting or probative, on any scale whatsoever, I'd firstly note that is not what I said and would continue from there.
But I say that based on the fact that Stevens doesn't even pretend very hard to be trying to read the constition. He knows what his preferences are, and the constitution be damned. Read his recent opinion saying capital punishment is always unconstitutional, and then actually read the Due Process clause.
You might say the same thing about Scalia, but if he is doing this, he isn't as bald about it. And especially in this case, Heller, he reached the right conclusion which suggests he was engaged in an honest search. But then again, so did Kennedy, and in the Kennedy v. LA case, he demonstrated just how result-oriented his reasoning could be.
> If it had been "scholarly" then the majority would had pointed out that the "right of the people to bear arms" was already part of the Constitution before the adoption of the Second Amendment.
You make the pro-gun-rights case for us. Why make an amendment about it, if it is already there? The implication, then, is that it was not already there.
Anyway, Scott’s comment is so confused as to be nonsensical. If that clause was a mini-second-amendment, then how could it be VIOLATED by a contentious objector clause? And indeed, the clause he supposedly discusses in your comment is not about the rights of the people, and cannot be reasonably construed as one. So you have 2 possibilities. Either he was actually talking about the proposed second amendment, or he was so clueless he has no idea what the document he helped frame said.
That’s why it is much more useful to look to what the public would have understood this amendment to mean. The public would have understood it to mean that in the face of a new and powerful Federal Government, the people would still have the ability to resist any tyranny it produced by force of arms. Given the fact they had just finished overthrowing tyranny, I can’t think of any more natural reading of the amendment.
I mean really, get off your high horse. You are arguing:
1) that right after their successful rebellion against the tyranny of Great Britain, they would lay down their arms in the face of a new government they openly feared would turn tyrant,
and
2) that “the people” means either “the states” or some collective that means that while the people have this right, no actual persons have it.
These are hardly the most natural readings of these amendments given the history involved. It requires our founders to be hypocrites and for them to use ordinary words in secret ways. Its hardly engaging in an NRA snowjob to reject your silly, result-oriented argument.
Bad
> I'm of the opinion that judges should generally try to refrain as much as possible from citing factual claims, historical or otherwise, that lie outside of the facts presented in the case itself.
But context is everything. For instance, consider what the guarantee clause says, and how it might be taken out of context.
But on the other hand, there is no question that the supremes have engaged in bad uses of history in the past.
Soronel
> but did not examine the closing unit "shall not be infringed" at all.
Interesting point, but you might chalk that up to a lack of argument on both sides, I suspect. I haven’t read the briefs enough to know, but I think everyone felt like we understood what shall not be infringed, given the First Amendment use of a similar phrase.