A hurriedly-compiled list of some of Justice Scalia’s (”AS”) most cogent and bombastic (read benchslap-tastic) points is recounted below. Justice Stevens (”JPL”) wrote a dissent vainly attempting to combat AS on AS’s home court of originalist historical context, and Justice Breyer (”SGB”) authored a dissent devoted to supporting the D.C. (the “District”) gun ban itself. Notably, AS reserves his harshest criticism for JPL (calling him “dead wrong” at one point). See Dist. of Colum. v. Heller, No. 07-290, slip op. at 5-6 n.5 (June 26, 2008).
Part II of the opinion delves into amazingly intricate detail as to what is the meaning of the II Am. AS begins by acknowledging that the II Am. is divided into a prefatory clause (the “well-regulated militia” portion favored by collective right proponents) and an operative clause (the “right of the people” portion favored by individual right proponents). AS makes clear that a prefatory clause may operate to clarify the operative clause, but it cannot “limit or expand the scope of the operative clause.” Id. at 4. He chides JPL for suggesting that such a construction would impermissibly render the prefatory clause without effect, because:
[A] court has no license to make [a clause] do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.
Id. at 4 n.3. Such a construction, AS explains, would illogically “cause the prologue to be used to produce ambiguity rather than just to resolve it.” Id. at 5 n.4.
AS next turns to the individual nature of the right, reminding the dissenting Justices that the other two times the phrase, “right of the people” is used in the Bill of Rights (I & IV Ams.), it is uncontested that such language confers an individual right.
Examining the substance of the right, AS explains:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search, … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Id. at 8 (emphasis added) (citations omitted).
AS positively disassembles JPL and the District’s construction of the phrase, “bear Arms:”
In any event, the meaning of “bear arms” that [the District] and [JPL] propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed …. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once:“weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
Id. at 13 (emphasis added) (citations omitted).
AS was apparently less swayed by the amicus brief filed by a group of linguists than was JPL, remarking:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).
Id. at 15 (emphasis added).
AS is also unmoved by JPL’s creative grammatical interpretation of the II Am.:
[JPL] believes that the unitary meaning of “keep and bear Arms” is established by the [II Am.]’s calling it a “right” (singular) rather than “rights” (plural) …. There is nothing to this.
Id. at 18 (emphasis added). AS adds in a footnote:
Faced with this clear historical usage, [JPL] resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established …. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution ofthe United States” is not a whit different from a promise “to supportand defend the Constitution of the United States.”
Id. at 18 n.14 (emphasis added).
Unsurprisingly, when JPL attempts to broadside AS on his own turf—that of interpreting legislative history—AS is blunt: “[JPL] flatly misreads the historical record.” Id. at 30. I think the most revealing barb aimed at JPL by AS is also the most prescient. Replying to JPL’s insistence that commentary subsequent to the ratification of the II Am. somehow bore upon the understanding of those who ratified it, AS is brilliant (as usual):
Before proceeding, however, we take issue with [JPL]’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task …. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding …. “Postenactment legislative history,” … a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.
Id. at 32 (emphasis added). In one fell swoop, AS calls out the jurisprudentially liberal wing of the Court’s central tenet of juristic philosophy. Masterful.
AS easily sweeps aside JPL and the District’s contention that United States v. Miller, 307 U.S. 174 (1939) could be read to support only a militia’s right to bear arms because:
Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen …. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.
Id. at 50 (emphasis added).
One of my favorite passages is a subtle dig at JPL’s professed concern for the judiciary at the expense of the citizenry:
As for the “hundreds of judges,” … who have relied on the view of the Second Amendment [JPL] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.
Id. at 52, n.24 (emphasis added). Game … set … match.
AS concludes by discounting the faux concern raised by SGB that the majority opinion “leav[es] so many applications of the right to keep and bear arms in doubt,” reminding his colleague that:
[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.
Id. at 63 (citations omitted).
AS’s second-to-last sentence in the opinion is a skillfully-drafted and subtle rebuttal of the use of the Court by his jurisprudentially liberal colleagues—past and present—to juristically abrogate the Constitution based on modern constructions of ancient legal precepts. In it he concludes that, while the political or cultural viability of the II Am. in modern society:
[I]s perhaps debatable, … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Id. at 64 (emphasis added).
Also of note, AS cites not to just one, but two three of Professor Volokh’s articles in the majority opinion. That is a very rare honor indeed, but also an undisputedly well-deserved one by Professor Volokh. See id at 3, 11 n.8, 24.
Also, one of the cites is to Texas’s very own Review of Law & Politics, congrats.
* * * UPDATE * * *
More quotes from the majority opinion less of the benchslapping variety can be found at SCOTUSBlog.
Thx to the Heller majority, and as always, to Justice Scalia for his intellect and wit
June 26, 2008 at 8:49 pm
Your analysis was just as retarded as Scalia’s. It is amazing how retards like you continue to hold Scalia in such high regard. moron.
June 27, 2008 at 2:37 am
“You suck,”
I’ll let your thorough and insightful gem of legal analysis stand on its own eloquent merits.
-020033
June 27, 2008 at 5:36 am
“It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.”
Definitely worth the read.
June 27, 2008 at 6:01 am
Well regulated militias that can overthrow the United States governments don’t need pistols. They need automatic rifles, artilery, missiles, tanks, and attack helicopters. Handguns just ain’t gonna cut it.
I’ve read your post above, and it makes no sense to me. This because Scalia ascribes himself as the defender of consitutional literalism – which is fine – but interprets the constitution in a way that bears no resemblance to the 2nd ammendment right to bear arms for the purpose of forming a militia should the need arise.
June 27, 2008 at 6:33 am
George,
You are correct that Justice Scalia’s majority opinion “bears no resemblance” to a II Am. right to keep and bear arms “for the purpose of forming a militia should the need arise.” This is because the II Am. right, as explained and confirmed in Heller, has nothing to do with militia service.
I think the confusion may stem from your description of the majority’s holding.
The right clarified by the Heller majority is not tied to militia service at all. The “well-regulated militia” language in the prefatory clause can only serve to clarify but may not alter or supplant the operative clause that contains the recognition of an individual right.
Therefore, the II Am. right keep and bear arms is not a collective right guaranteed only to militiamembers (nor has it ever been), but is instead an individual right that may be reasonably regulated (no right keep and bear M16’s, grenade launchers, etc.) but not abrogated by overly-broad regulations such as those imposed by D.C.
Thanks for your comment.
-020033
June 27, 2008 at 9:25 am
What clarifying purpose does the prefatory clause serve? If the operative right has no relation to militia-service, why include thep reface?
June 27, 2008 at 9:48 am
Mark,
According to the majority opinion at page 26, “[i]t is entirely sensible that the [II Am.] prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right–unlike some other English rights–was codifidied in the a written Constitution.”
So, while one of the purposes (indeed, the only one expressly mentioned) for the recognition of the preexisting individual right was to prevent the Federal abolition of the citizens’ militia, the nature of the right itself recognized by the operative clause was not modified.
Again, a preface can provide context for an operative clause, but it can’t be shoehorned into operating itself.
-020033
June 27, 2008 at 10:17 am
georgedarroch Says:
June 27, 2008 at 6:01 am
“Well regulated militias that can overthrow the United States governments don’t need pistols. They need automatic rifles, artilery, missiles, tanks, and attack helicopters. Handguns just ain’t gonna cut it.”
Interesting. A group of people seem to be well on their way to defeating the U.S. Military in Iraq and Afghanistan with not much more than small arms and improvised explosives. Al Queda doesn’t have any attack helicopters, tanks, or sophisticated missles that I am aware of. Why couldn’t a guerrilla campaign be waged the same way in the U.S.?
June 27, 2008 at 10:44 am
thanks for this great posting ! very interesting . greetings from germany
June 27, 2008 at 10:53 am
Wolfsburg,
Great to have friends from overseas drop by this neck of the blogosphere. If you ever make it to Texas in person, you should stop by our famed German settlement in Fredericksburg, where many a good pint may be had while watching a beautiful Texas sunset.
-020033
June 27, 2008 at 11:05 am
I agree with the OP: Scalia’s opinion is puerile and stupid. That seems to be the point of this post, anyway. All of the cited quotes served admirably to demonstrate that Scalia’s most vicious benchslappery is done *without* citation, but rather just with his own cute phrases. He certainly has a flair for wordcraft, but at the end of the day it’s just that: mere wordcraft that he enjoys. There are clear, vast, gaping leaps of logic, in his arguments… and clear, vast, gaping holes in the guidance that this decision might give to lower courts.
Consider his dissent in Boumediene: he writes that the majority decision “will almost certainly cause more Americans to be killed,” but does not back up the prediction in any way. (The assertion that 30 released prisoners returned to the battlefield was proven false.) Rather, they are just powerful words intended to sway a reader without having to rely on legal or factual citation. Mere wordcraft.
Here, on the other hand, it is clear, and factually proven, that striking down gun regulation will put more guns into the hands of those who intend to use them unlawfully, and therefore will *certainly* (not almost certainly) result in the death of more Americans. Why is that not addressed? Oh wait – it was, just not by Scalia. He was too busy with his wordcraft.
Point being this: Scalia cares more about such wordcraft than he does about good jurisprudence. He is a sophist who would do better enacting policies as a legislator… but he knows he can do so more effectively from the bench, making him a judicial activist of the worst kind.
For the record, I think the majority reached the right result in Heller. But as the O.P. demonstrates with those terrible Scalia quotes, the decision itself is a terrible one. If heller is in fact the most important decision from the Court in two generations, as one commentator suggested, then yesterday was a sad day in American jurisprudence.
June 27, 2008 at 11:07 am
Scalia’s dissent in Boumediene carried the perfect tagline for his opinion in Heller:
“[This decision] will almost certainly cause more Americans to be killed.” Not that he’s wrong in Heller. He’s actaully right on the law this time. But he’s shown once again why he is a bad writer and unlikeable person. His opinions sacrifice dignity and brevity for the sake of page upon page of self-serving rhetoric and shallow, formalistic point scoring. It’s childish. It’s about time he stopped writing with a chip on his shoulder.
June 27, 2008 at 11:33 am
Word,
Have to admit I have a soft-spot for sophists and sophistry generally.
And I also admit I don’t know the statistics of all 30 released detainees Justice Scalia referenced in his dissent, but at least 1 did return to the battlefield to kill 7 allied soldiers (http://www.washingtonpost.com/wp-dyn/content/article/2008/05/07/AR2008050703456.html).
Even if that one instance is the entirety of the casualties directly attributable to released detainees from Guantanamo, that’s enough in my book to give him license to warn of future deaths that will likely result from further releases due to habeas challenges.
-020033
June 27, 2008 at 11:40 am
James,
As I’ve (somewhat crassly) remarked elsewhere, “Couldn’t agree more, more criminals will likely die now that D.C. residents are not forced to assemble, then load their weapons, before defending themselves or their families” (http://balkin.blogspot.com/2008/06/this-decision-will-cost-american-lives.html?showComment=1214552040000#c4526844944810914271).
However, I don’t think you’ll find much support among those who study the Court that Justice Scalia is a “bad writer.”
By the same token, much as I may not personally care for Justice Breyer’s jurisprudence, I can’t say he’s not an exquisitely-skilled writer. I probably wish he wasn’t, but he undoubtedly is.
-020033
June 27, 2008 at 11:45 am
James: well said.
020033: I respect your opinion on that score… but how do you square it with Heller? crime studies have shown that the Dc gun ban resulted in about a 25% decrease in gun homicides in the District, and about a 25% decrease in gun suicides. As I said, this decision will *certainly* result in the deaths of hundreds or thousands of innocent Americans.
And looking at history, this penumbral right to self-defense is certainly no more ancient or important than the Great Writ. So how can you rationally come down on one side in Boumediene and the other in Heller?
(And speaking of ancient rights, let’s not even get into how Souter eviscerated our ancient jury rights in Exxon… I’ll just say this: for those who enjoy historical analysis of constitutional law, this certainly has been an interesting week.)
June 27, 2008 at 12:16 pm
Word,
Agree that for all who enjoy legal historical exposition and analysis, the opinions issued at the end of this term have not disappointed.
You raise an interesting point as well regarding the juxtaposition of the relative importance afforded habeas protection versus self-defense. I’d want to read both opinions again before I answer in detail, but I will say this at the outset:
First, I think the Heller majority goes to great lengths to explain the II Am. right is not penumbral, despite Justice Stevens’s protestations to the contrary.
Second, at least from a common-sense perspective, if I had to rate the importance of both rights, it is only through my II Am. right of self defense that I have the relative luxury to seek a habeas writ. Put another way, the folks I’m likely to exercise my II Am. right against won’t be too concerned about my habeas rights. Whereas, if I’m asserting a habeas writ, it will only be because I lived long enough to enjoy the protections enshrined in our Justice system.
-020033
June 27, 2008 at 12:46 pm
“Bad writer” was not the perfect expression for my complaint. I’ll admit that he has a clear, effective style, one of the best. It’s his overall strategy in writing that I find problematic. I think of it as a very macro-level writing issue, but maybe ther’s a better name for it. Anyway, my point is that his opinions are satisfying if you get your rocks off on snarkiness and one-upmanship, but they are weaker for it. The comparison of the two opinions shows how transparent and shallow the rhetoric is. Call me old fashioned, but I don’t think that shamelessly transparent rhetoric and hyperbole are the hallmark of great judicial opinions.
June 27, 2008 at 1:05 pm
To Word:
Your statistics about the drop in DC gun violence don’t take into account population change.
The Volokh Conspiracy has reviewed the study accounting for population change:
http://www.volokh.com/posts/1214526279.shtml
(congrats to Volokh on the Heller cites)
June 27, 2008 at 1:09 pm
I think Word and James both raised a similar point about J. Scalia’s need to evicerate the other side.
Like many, I find Scalia to be a seriously talented writer. He manages to summon words/ideas/analogies to make points in an accessible and forceful manner. He provides a lot of clairty.
But doesn’t he spend to much time “scoring points”? Large portions of his opinions are often framed around shooting down the views of other justices, one-by-one.
I have read many opinions by lower court judges (often trial judges) in which the judge seems to frame the opinion around shooting down the arguments of the losing side, point for point. These writings often come off somewhat empty. Frankly, it is a comparatively unchallenging to invoke some common sense, shrewd turns-of-phrase, insights, and analogies to say why someone is wrong.
I don’t find it particularly useful for Scalia to devote large parts of teh majority opinion as a point-for-point assault on the arguments of the dissenting judges. You get the sense that he had conjured up just too many great “whammies” against the other side, and couldn’t resist printing them. They make for fun reading–and they usually help a reader understand where the “action” is. But sometimes I feel like Scalia makes this endeavor too much the focus of the majority opinion.
Many a great supreme Court justice has not felt the need to operate in this manner. Two each his own. But isn’t worth thinking about whether this way of writing on the Supreme Court is useful? And, considering this kind of writing–let’s face it–always has a neat *zing* to it, isn’t it possibly that this is at least part of the reason Scalia is thought of as such a shrewd and persuasive writter, when in reality it just b/c he relies more heavily than the other justices on the *zing* ethos?
June 28, 2008 at 8:31 am
Bone and James,
Have to admit a weakness for my admiration of expertly-executed benchslappery as well. Agree though that, if not combined with the jurisprudential payoff, it can ring hollow and shallow.
Perhaps one Article III Judge who fits that description more aptly than Justice Scalia is Judge Kent, formerly of the U.S. Southern District sitting in Galveston. His “live Bolivian” opinion is one of my favorites (as is his “Big Chief Tablet” order) (http://sophisticmiltonianserbonianblog.wordpress.com/2008/04/14/who-is-texass-next-benchslapper-in-chief/), but what they exuded in smarminess, they largely lacked in reasoned exposition. Of course in fairness, he’s a trial judge, so the issues he dealt with weren’t nearly as weighty or complicated as those SCOTUS is called upon to decide.
So, I don’t think you can fairly label Justice Scalia as a one-trick jurist. Yes, he writes with flair, sarcasm, and wit, but the thing–at least in my estimation–that sets him apart is that he backs up his linguistic barbs with logic and reasoning that can’t easily be discounted.
And regarding his opinion in Heller specifically, I don’t think you can label every one of his 63 pages as mere benchslappery. Indeed, if that were the case, his opinion would have been shorter.
Moreover, I think there is something to be said for refuting or at least addressing the most salient portions in a dissent. To completely avoid doing so would be a sign of disrespect for your colleague. Further, in order to demonstrate whether your holdings (if, in the majority) truly hold up to juridical scrutiny, a good judge should explain why his or her view trumps that of the dissent.
I understand both of your points, but I think that Justice Scalia’s writing is both more nuanced and substantive than you give him credit for.
-020033
June 30, 2008 at 3:25 pm
Boy, I never thought there were so many stupid people in this world. Everyone who thinks AS is stupid, is obviously the retarded one.
Yeah, I like to be a sitting duck while the criminal has the gun and I have nothing. Oh, that’s right, you stupid people think that the criminal, who will break the law to rob a bank or car jack me, will say, hey wait, I can’t use a gun because it’s illegal. You guys are the morons.
Further, Keller desmonstrated the hypocrites of the left on the court. Take Breyer’s Active Liberty view of interpreting the constitution and the others who beleive it is a living document that you interpret in todays meaning and not when it was formed, and that the document evolves to give and protect more rights. Well, if you are true to that dogma, then it should be 9-0 that the IIam. is a personal right to keep and bear arms; oh wait, moron stevens needs it to read to keep and [to] bear arms. Since we have had the IIam., the people in this country have lived and operated as though it gives a personal right to own and possess a firearm. Why should that change? Oh, because the liberals on the court are not for freedom, but tyranny. See the tyranny cannot be complete until we can take the guns out of the hands of the free. This was a nice blow in their plot to enforce the brave new world upon us.
As far as the comment by AS that many more Americans will die after the GTMO case, that’s true. We have released more the 30 detainees who returned to the fight. We were wrong ore often releasing detainees than we were right. After reading the abomination by Kennedy, I thought of COL Nathan Jessup in a Few Good Men: You’ve done nothing but weaken a Nation today. You’ve put peoples lives in danger. I hope Kennedy can sleep at night knowing that he will give a terrorist the right to habeas, but the American POW held by the enemy will have no right to challenge his or her detention in the enemy’s courts. You all who support the Kennedy treason opinion are all unpatriotic. And that goes for that muslim Obama too.
July 1, 2008 at 8:40 am
Jagman,
You mostly had me till your last two sentences. While I strongly disagree with the reasoning and result in Boumadiene, it is both ill-advised and incorrect to label Justice Kennedy’s majority opinion as treasonous and unpatriotic.
If your point is that, because of Justice Scalia’s caution in his dissent that more Americans will die as a result of the opinion, I can see how one could make the logical jump to concluding the majority opinion complained of was therefore inherently unpatriotic. However, that can only be the case if the intent in fashioning the opinion was to undermine or weaken the country, and–despite my strong jurisprudential differences with the Boumadiene majority–I unreservedly believe their intentions were manifestly aimed at strengthening the country from their point of view.
And your last sentence is so utterly without cognitive moorings that it casts great intellectual doubt as to entirety of your comment.
-020033
April 24, 2009 at 8:06 pm
Coming late to the debate. Thought I might offer this anecdotal tidbit to the haters. I heard Adam Liptak speak a few weeks ago (he replaced Linda Greenhouse at NY Times as the SCOTUS reporter this year/term). He said Scalia is unqualifiedly the best writer currently on the bench.