26 June 2008

You'll Know We're Americans By Our Guns

I'm not going to say a lot about the substance of Heller. (For what it's worth, I don't object all that much to long arms that might, at least in theory, be useful for hunting and hunting only; it's bad military practice to have militia store their own weapons. I do, however, object to handguns, which have no realistic "defense purpose" that comes anywhere near outweighing their "offense purpose," and certainly have no place in a "militia" unless designed and issued for that purpose.) Instead, I'd like to make an inference about Justice Scalia's underlying jurisprudence.

Justice Scalia expresses disdain for legislative history in many of his opinions. His opinion in Heller and his dissent in Boumediene give a rather disturbing hint of just why that might be. It is possible — and defensible, based upon his actual writings — that Justice Scalia dislikes legislative history because he does not understand historiography, knows it, and therefore tries to avoid relying upon it... because when he does make an argument from history, he usually goes seriously astray. I already noted a historiographical problem with his approach in Boumediene last week. His recitation of the purported context of the Second Amendment in Heller isn't much better, although it reflects a different error; rather than a complete lack of evidence, his governing opinion in Heller instead just fails to weigh all of the evidence through its selective review of secondary and tertiary materials that neglects other, equally valid secondary and tertiary materials that disagree... let alone primary sources, particularly primary sources drawn from nonpartisan evidence of actual behavior.

Maybe it's time for Congress and the President to demand a better and more-diverse undergraduate education of potential justices. The increasingly context-sensitive nature of the cases before it is not well understood through a straight polisci/economics perspective... and Exhibit A for that problem is the mess that the Court has made of IP jurisprudence in the last half-century. I'm not objecting to the results as strongly as I am to the reasoning, although getting the result correct less than half the time is nothing to be proud of.

Justice Scalia is obviously a bright guy, whose writing is at least engaging (if not always well-reasoned). I could try to make a back-handed compliment out of this by noting that he's no historian and knows it; but that would be taken as just snark. It's a much deeper problem than that, and in Heller it's a problem shared by the entire set of opinions.