More on Heller

Mark Tushnet

I want to make two points about Heller. The first elaborates on a point Sandy Levinson made. Both Justice Scalia’s opinion for the Court and Justice Stevens’s dissent devote a great deal of attention to the original understanding – or, as it turns out, understandings – of the Second Amendment’s terms. Both opinions look as if they are interested in history. Both, though, demonstrate why lawyers and judges shouldn’t play historian. In their capacity as judges, the justices have to award a decision to one or the other side. They share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor. So, both Justice Scalia and Justice Stevens assert – laughably to a real historian – that the Second Amendment had only one meaning at the framing, and that that meaning was for all practical purposes universally shared. Even more, Justice Scalia asserts that that meaning was preserved unchanged from 1791 through the late nineteenth century.

Real historians are comfortable with complexity and with the co-existence at any one time of contradictory understandings of constitutional concepts, and the real lesson of the dueling opinions in the Heller case is that there simply wasn’t a single, universally shared understanding of the Second Amendment’s meaning in 1791: There were at least two widely shared meanings, and what we deserve, but didn’t get, is some explanation of why one rather than the other should guide our interpretation today. And the idea that constitutional understandings are so stable that what people in the 1860s thought the Second Amendment meant can help us figure out what (other) people thought seventy years earlier is belied by something we really do know – that within a decade after the adoption of the First Amendment the general understanding of what it meant changed dramatically (roughly, but adequate for present purposes, from a ban only on prior restraints on publication with no implications for punishment after the event, to a ban on some substantive regulations such as prohibitions of criticism of the government). If the understanding of the First Amendment’s meaning changed so rapidly, why not the same for the Second, over an even longer period?

Finally, the exchange between the majority and Justice Breyer, speaking for four dissenters, reveals an interesting and persistent disagreement between the justices. Three years ago, writing to uphold the display of the Ten Commandments on the state house grounds in Texas, Justice Breyer argued that constitutional analysis required that judges exercise “legal judgment.” He reiterated that point in his opinion in the Medellin case earlier this Term, and once again in his dissent in Heller. In Medellin and Heller his colleagues in the majority derided his argument as a “judge empowering” method of unguided interest-balancing. This isn’t the place to engage in a long analysis of what Justice Breyer might mean by “legal judgment,” but I think it’s reasonable to think that he has something else in mind. (I hope to develop the longer analysis in an article to be published next year.)

For now, it may be worth observing the rhetorical difference between Justice Breyer’s description of his job as one requiring him to exercise “legal judgment,” and Chief Justice Roberts’s description of the job as that of an umpire calling balls and strikes. As to the latter – and with implications for the question of judicial empowerment – it seems to me striking, so to speak, that, as one might put it, when Chief Justice Roberts calls the balls and strikes, it turns out that the home team’s pitchers have a truly amazing capacity to get the ball in the strike zone while the visitors’ pitchers quite frequently throw wildly. And, we really should try to figure why exactly it’s a bad thing for people we call judges to exercise judgment.

Posted 9:57 AM by Mark Tushnet [link]