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Saturday, June 28, 2008

If (Like Me) Guns Don't Get Your Blood Pumping . . .

I spent most of yesterday online answering questions from readers of the local paper about the Heller decision and found myself surprisingly unworked up.  Usually, the end-of-the-term blockbusters elicite either elation or anger, but Heller left me strangely cold.

Did I disagree with result?  Yes.  Did I think it was the end of the world? No.   Dahlia Lithwick has an interesting little post about the decision making a similar point (though, contra her speculation, I highly doubt that my lack of passion about gun control is some subliminal attempt to reassert my masculinity).

I've got one (two-part) question and one (straightforward) suggestion for those on the legal and political left.  The question is do others feel as unexcited about Heller as I do and, if so, why?  The suggestion is that if you feel like you are missing your standard end-of-term dose of outrage that you go back and read this brilliant post by Walter Dellinger on last term's Seattle schools case (which I somehow missed during last year's term post-mortem).

Posted by amsiegel on June 28, 2008 at 10:39 AM in Constitutional thoughts, Current Affairs | Permalink


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When, a week or so ago, it started looking likely that Scalia would be the author of the majority opinion, I was looking forward to a sophisticated historical treatment of the Second Amendment. I thought: whatever one thinks about the relevance of history (in the vehicle of public meaning originalism or otherwise), this is the case that will show historical analysis in its most powerful light. The combination of factors seemed perfect for an opinion rich in history: A Justice who cares most about history; the benefit of scholarship and scholarly briefs; smart and able law clerks who will leave no stone unturned; little in the way of precedent to limit what can be achieved. Measured against these expectations, Scalia's opinion left me disappointed. The historical analysis basically combs familiar sources for useful quotations. It moves from era to era with little regard for context. There is no sense of nuance or proportion; no recognition that in a single era (let alone the entire period from the 1780s to the end of the nineteenth century), there are complexities, disagreements, and evolutions. This use of history, seemingly the best we could get, just was not very good. By the time I made it through Stevens' dissent, I concluded that, years from now, Heller might mark the point at which it became clear (to those of who still hoped) that, even with all the resources of modern life, the Supreme Court is just not very good at history, or at using history to resolve modern disputes. I have been thinking more about that than about guns in homes.

Posted by: Jason Mazzone | Jun 28, 2008 12:00:37 PM

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