Journal Article•
Second Amendment Minimalism: Heller as Griswold
01 Nov 2008-Harvard Law Review (Harvard University, Harvard Law School)-Vol. 122, Iss: 1, pp 246-275
TL;DR: Heller as discussed by the authors is the most explicitly and self-consciously originalist opinion in the history of the United States Supreme Court, and it has been interpreted as a modern incarnation of Marbury v. Madison.
Abstract: I. INTRODUCTION District of Columbia v. Heller (1) is the most explicitly and self-consciously originalist opinion in the history of the Supreme Court. (2) Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning. (3) It would be possible, in this light, to see Heller as a modern incarnation of Marbury v. Madison, (4) at least as that case is understood by some contemporary scholars, (5) and to a considerable extent as Chief Justice John Marshall wrote it. In Marbury, the Court also spoke on behalf of what it took to be the text, structure, and original meaning of the Constitution. (6) On one view, Heller represents the full flowering of the approach that Chief Justice Marshall imperfectly inaugurated--one that has been abandoned at crucial periods in American history. To its defenders, Heller speaks honestly and neutrally on behalf of the original meaning, and it should be appreciated and applauded for that reason. (7) But there is a radically different reading of Heller. The constitutional text is ambiguous, and many historians believe that the Second Amendment does not, in fact, create a right to use guns for nonmilitary purposes. (8) In their view, the Court's reading is untrue to the relevant materials. If they are right, then it is tempting to understand Heller not as Marbury but as a modern incarnation of Lochner v. New York, (9) in which the Court overrode democratic judgments in favor of a dubious understanding of the Constitution. On this view, it is no accident that the five-Justice majority in Heller consisted of the most conservative members of the Court (who were all Republican appointees). Perhaps Heller is, in the relevant sense, a twenty-first-century version of Lochner-style substantive due process, and perhaps it marks the beginning of a long series of confrontations between the Supreme Court and the political branches. On a third view, this characterization badly misses the mark. Heller is more properly characterized as a rerun of the minimalist ruling in Griswold v. Connecticut. (10) In Griswold, the Court struck down a Connecticut law banning the use of contraceptives by married couples, under circumstances in which the Connecticut law was plainly inconsistent with a national consensus. The Court worked hard to support its decision by reference to the standard legal materials, (11) but the national consensus probably provides the best explanation of what the Court did. (12) Perhaps Heller is closely analogous. The Court spoke confidently in terms of the original meaning, but perhaps its ruling is impossible to understand without attending to contemporary values, and in particular to the fact that the provisions that the Court invalidated were national outliers. In this Comment, I contend that the third view is largely correct, and that Heller will, in the fullness of time, be seen as embracing a kind of Second Amendment minimalism. Notwithstanding the Court's preoccupation with constitutional text and history, Heller cannot be adequately understood as an effort to channel the document's original public meaning. The Court may have been wrong on that issue, and even if it was right, a further question remains: why was the robust individual right to possess guns recognized in 2008, rather than 1958, 1968, 1978, 1988, or 1998? And notwithstanding the possible inclinations of the Court's most conservative members, Heller is not best seen as a descendent of Lochner. In spite of its radically different methodology, Heller is far closer to Griswold than it is to Marbury or to Lochner. No less than Griswold, Heller is a narrow ruling with strong minimalist features. And if this view is correct, then the development of the gun right, as it is specified over time, will have close parallels to the development of the privacy right. …
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TL;DR: The right to possess firearms by private citizens has been a major political issue in the United States since the founding of the country since James Madison argued that state militias would protect the people from any threat that a federal government would usurp their individual rights.
Abstract: The right to possess firearms by private citizens has been a major political issue in the United States since the founding of the country. James Madison, for example, argued that there need be no concern about forming a federal government because state militias would protect the people from any threat that a federal government would usurp their individual rights. Language: en
10 citations
TL;DR: In this article, the effect of the Heller decision on the prevalence of handgun ownership in states and local jurisdictions is investigated. And the authors find evidence in support of four conclusions: The effect of Heller may be to increase the ownership of handguns in jurisdictions that currently have restrictive laws; given the best evidence on the consequences of increased prevalence of gun ownership, these jurisdictions will experience a greater burden of crime due to more lethal violence and an increased burglary rate.
Abstract: The "core right" established in D.C. vs. Heller (2008) is to keep an operable handgun in the home for self-defense purposes. If the Court extends this right to cover state and local jurisdictions, the result is likely to include the elimination of the most stringent existing regulations - such as Chicago's handgun ban - and could also possibly ban regulations that place substantial restrictions or costs on handgun ownership. We find evidence in support of four conclusions: The effect of Heller may be to increase the prevalence of handgun ownership in jurisdictions that currently have restrictive laws; Given the best evidence on the consequences of increased prevalence of gun ownership, these jurisdictions will experience a greater burden of crime due to more lethal violence and an increased burglary rate; Nonetheless, a regime with greater scope for gun rights is not necessarily inferior - whether restrictive regulations would pass a cost benefit test may depend on whether we accept the Heller viewpoint that there is a legal entitlement to possess a handgun; In any event, the core right defined by Heller leaves room for some regulation that would reduce the negative externalities of gun ownership.
9 citations
TL;DR: The interpretive principles at stake in the controversy over the court's account of the Second Amendment's deeply ambiguous enunciation of the right of the people to keep and bear arms are discussed in this paper.
Abstract: Described as ‘the most explicitly and self-consciously originalist opinion in the history of the [United States] Supreme Court’, District of Columbia v. Heller, decided in 2008 on a 5/4 split, embodies many of the central problems of a historically oriented legal hermeneutics. Antonin Scalia’s invocation of an unchanging constitutional text and a purity of reconstruction of an original meaning belies the intensity of social and political interests that inform the judicial decision-making process. This paper looks at the interpretive principles at stake in the controversy over the court’s account of the Second Amendment’s deeply ambiguous enunciation of the right of the people to keep and bear arms. Against the historicism that constitutes the unexamined norm of originalist interpretation, I argue that texts have no privileged “original meaning” but change their meanings as they acquire new purposes and uses. Second, I seek to specify the institutional underpinnings of the regime of interpretation that effects the translation of past texts into present structures of interest. In the broad sense in which I define it here, the interpretive regime is not just a matter of the rules of a discursive game but is effected by a mix of material, political, and disciplinary infrastructures that make those rules binding upon a particular interpretive community. Finally, I examine the play of blindness and insight that constitutes, in this case and more generally, the rhetorical condition of possibility for the establishment of a truth which then defines and enacts a reality.
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25 Feb 2015
TL;DR: O artigo procura tracar a distincao entre o ativismo judicial and a judicializacao da politica, fenomenos cada vez mais discutidos nas sociedades contemporâneas as mentioned in this paper.
Abstract: O artigo procura tracar a distincao entre o ativismo judicial e a judicializacao da politica, fenomenos cada vez mais discutidos nas sociedades contemporâneas. Apesar de guardarem importantes diferencas entre si, muitas vezes sao tratados como sinonimos. Alem de diferencia-los, apresenta-se uma perspectiva critica de ambos quando confrontados com as exigencias estabelecidas por um sistema democratico de governo.
2 citations