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AmSpecBlog
Dionne vs. Originalism
E.J. Dionne makes an amateurish attempt to find hypocrisy among conservative justices in the Heller ruling:
Conservative justices claim that they defer to
local authority. Not in this case. They insist that political
questions should be decided by elected officials. Not in this case.
They argue that they pay careful attention to the precise words of
the Constitution. Not in this case.
It's true that conservative judicial philosophy is deferential to local governments when the Constitution doesn't specifically grant a given right to the people or forbid government from making a certain law. But it is totally different when the Constitution specifically prohibits government from regulating a given behavior. Just as the District of Columbia doesn't have the authority to censor what Dionne writes in his Washington Post column because of the First Amendment, the Second Amendment guarantees my individual right to keep and bear arms as a citizen of the District.
And it's hard to see how Dionne could have even glanced at Scalia's opinion and still concluded that it doesn't pay close attention to the precise words in the Constitution.
As Randy Barnett puts it in an excellent, far more illuminating op-ed in the Wall Street Journal:
Justice Scalia's opinion is exemplary for the way
it was reasoned. It will be studied by law professors and students
for years to come. It is the clearest, most careful interpretation
of the meaning of the Constitution ever to be adopted by a majority
of the Supreme Court. Justice Scalia begins with the text, and
carefully parses the grammatical relationship of the "operative
clause" identifying "the right to keep and bear arms" to the
"prefatory clause" about the importance of a "well-regulated
militia." Only then does he consider the extensive evidence of
original meaning that has been uncovered by scholars over the past
20 years - evidence that was presented to the Court in numerous
"friends of the court" briefs.
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