Ok – let’s talk Heller. The question in Heller was not “individual” versus “collective” right, but whether the individual right must relate in some way to militia service. The Court said no, in a 5-4 party-line vote. I’m not crazy about the result, but I don’t care that much about guns. The reasoning, however, is far more troubling. Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.
There are a million things about Heller on the Internets, so I’m limiting myself to this one point – the Heller opinion is an indictment of originalism. In particular, it shows the gaping weaknesses of a methodology that says our constitutional rights should turn on the ability of non-historian judges and law clerks to sift through cherry-picked snippets of early American history. Stuart kings should be less relevant than the realities of 21st century urban violence on this particular issue.
To begin, let me emphasize that history shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. For instance, let’s say Congress decided to put images of our troops on quarters (25 cent pieces), and someone sued saying the Constitution prohibits “quartering” of troops. History there clearly illustrates that the text doesn’t refer to coins. Similarly, the “domestic tranquility” clause isn’t a basis for a federal domestic abuse statute. So yes, history can be relevant and even dispositive.
But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.
In Heller, the opinion itself illustrates how unclear the record is. Both sides present historical examples that, taken alone, support their point well. But the evidence doesn’t compel a conclusion either way – particularly from institutionally incompetent judges. It can retroactively justify the decision, but it’s not determining the outcome.
Even if you’re not persuaded by Stevens’ dissent, he at least notes several powerful challenges to Scalia’s historical analysis. Just off the top of my head – (1) the original draft of the Second Amendment was more military-related; (2) several state constitutions explicitly mention self-defense, unlike the federal one. And there are many others. Again, I don’t want to get into a historical debate because it’s silly. The point is that Stevens provided several examples that, at minimum, complicate Scalia’s overly-rosy historical record (which of course neatly held up to a 5-4 vote).
But moving beyond Heller, the extensive use of history in complicated situations has at least two other major problems: (1) it’s anti-democratic; and (2) it’s completely divorced from real-world considerations. More on each below the fold:
History and Transparency
As noted above, the originalist reasoning in Heller makes the scope of the law depend upon conclusions about history. Thus, our constitutional rights will be defined by amateur historians’ ability to cherry-pick the historical record.
Aside from the epistemological problems, it’s worth noting how utterly non-transparent and undemocratic this methodology is. In the Middle Ages, priests kept power by using a language (Latin) that only the educated elite could understand. Similarly, the Court’s tedious examination of dueling history books makes the opinion unreadable, and prevents the larger public from having a meaningful debate about it.
I mean, this is a problem with law opinions more generally. But debates about text and structure and policy and institutional allocation of power are least potentially accessible to the public.
Hell, I teach law and I can’t even get through the tangled 157-page mess that came down this morning. More to the point, it’s impossible for me to realistically assess the historical validity of these claims. To have fully informed decisions on close historical questions like these from the 1790s and earlier would require you to take a few years off and work on a history Ph.D. Thus, the dueling history opinions are not so much wrong, as they are unverifiable either way. I’m honestly not competent to assess them.
It shouldn’t be that complicated. If it is, we’re doing something wrong. Heller was an indulgence of amateur historians pretending to interpret important constitutional rights on the basis of the historical record. The opinion is completely inaccessible to the American public.
Another problem with the originalist methodology in Heller is that it ignores modern policy. I mean, don’t get me wrong – I care very deeply about what Antonin Scalia thinks of the Stuart kings. And he’s very clearly qualified to express opinions about them. But violence levels in DC strike me as a bit more relevant to the question at hand.
That’s not to say that courts should impose their own policy, but only that they should take modern policy into account on questions where the text and history are indeterminate. For instance, here, it seems worthwhile to note the difference between modern urban conditions and the Glorious Revolution.
If nothing else, the policy concerns could convince the Court that they’re not competent to make these decisions. Thus, maybe policy considerations would persuade them to allocate authority to legislatures and review them under a very deferential standard. (Again, that’s one benefit of process theory for liberals – it’s internally consistent and pro-democratic. This post, for instance, is fully consistent with my opposition to both Kennedy and the Exxon case, both of which contemplate enormous judicial power.)
We got no such thing here though – no real modern debate of any kind. We also got no sense at all of what lower courts should do in the inevitable wave of litigation to come. But we did hear detailed discussions of the Stuart kings. And that’s really what’s important – you know, what Scalia’s clerks thought of the Stuart kings.