Heller’s Certitude

This week, Joseph and I taught the Heller case in our Second Amendment seminar. That case is complex, and the history is deeply contested by Justice Scalia and Justice Stevens. I’ve read a good chunk of the original sources they debate and many more of the historians whose work they invoke to support their respective views. And, unlike either of them, I’ve been able to read the scholarship by professional historians and linguists since the case was decided that explores more thoroughly debates they elide or gloss over and, in at least some cases, plumb resources that weren’t even available to the justices in 2008.

Whatever one thinks of the ultimate question of whether Justice Scalia or Stevens was right about the concerns motivating the Second Amendment, one thing is clear to me: the answer isn’t beyond debate. And that’s one reason why every time I read the Heller opinion, I grow frustrated at the tone and demeanor. Neither side, it seems to me, should be claiming the certainty they do for the positions they espouse.

Consider, first, some of the ways Justice Scalia described positions or arguments with which he disagreed in the opinion:

• “dead wrong”
• “bordering on the frivolous”
• “[g]rotesque”
• “unknown this side of the looking glass”
• “worthy of the Mad Hatter”
• “[t]here is nothing to this”
• “wholly unsupported assertion”
• “profoundly mistaken”
• “ignoring the historical reality”
• “no support whatever”
• “flatly misreads the historical record”
• “betrays a fundamental misunderstanding of a court’s interpretive task”
• “[n]othing so clearly demonstrates the weakness of” the opposing view
• “cannot possibly be read”
• “particularly wrongheaded”
• “demonstrably not true”

Justice Stevens was not quite as biting in dissent, but he also expressed a surprising amount of confidence in conclusions that were polar opposite to Justice Scalia’s. He described opposing views as:

• “border[ing] on the risible”
• “fundamentally fails to grasp the point”
• “no plausible argument”
• “particularly puzzling”
• “simply wrong”
• “utterly failed to establish”

There will surely be more debate about how to understand and best flesh out the Second Amendment’s guarantee. And some of that debate will be heated. But in my view it is incumbent on those of us engaged in the debate to recognize that there are few easy answers to the questions animating concerns of a generation of Americans more than 200 years ago with a completely different set of cultural, historical, and philosophical presuppositions. It’s a good idea to approach the task with a healthy dose of humility. As our colleague Jeff Powell writes in his book Constitutional Conscience, “the constitutional virtue of humility . . . manifests itself in a continuing recognition that the Constitution is primarily a framework for political argument and decision and not a tool for the elimination of debate.”