Sunday, June 29, 2008

Rakove on D.C. v. Heller

Jack Rakove weighs in on the Supreme Court's ruling in D.C. v. Heller, the 2nd amendment case, with "Thoughts on Heller from a 'Real Historian,'" at Balkinization. Rakove authored a historians brief in Heller. He agrees with others that the Heller opinions would not "pass muster as serious historical writing," but also does not find that they are "equally incompetent." Rakove goes on to weigh "the merits of Scalia’s approach, which basically says that the actual history of how the Second Amendment made its way into the text of the Constitution is irrelevant, against Stevens’ more focused reliance on what was actually in dispute in 1787-1789."

Setting his argument in the context of Rakove's constitutional history, Original Meanings, he suggests that
The Scalia opinion seems materially defective to me for several reasons. The most its explicit disdain for the legislative history of the Amendment, whether that is described in terms of the Convention’s framing of the Militia Clause, the public exchanges and ratification convention debates it sparked, or what we know of the progress of the Amendment itself through Congress. I understand that this position correlates with Scalia’s general skepticism about legislative history in statutory construction, but that does not alleviate my concern. Why? As a “real historian,” I think that all of the following points are relevant to any kind of serious originalism.

The full post is here.