Article on Breyer dissent in Heller
"The Last Progressive: Justice Breyer, Heller, and "Judicial Judgment". "Progressive" here doesn't have its modern political meaning, but refers to a pattern of legal thought that began in the last 19th and early 20th centuries. It was, however, quite deferential to legislatures.
"Justice Scalia—the author of the majority opinion in Heller—is deeply skeptical of legislative or judicial attempts to arrive at an honest assessment of the public good."
More like Justice Scalia can read and interpret the 27 words of the Second Amendment in plain English, and has the courage of his convictions as a judge, that the Constitution is to be obeyed by judges, the executive and legislators.
Breyer, on the other hand has an approach that leads us into a swamp, without a compass to find our way out, since his "deference to legislatures and his attention to changing social conditions" voids the meaning of the text of the Constitution as a document. His way is that the Constitution means whatever judges say it does.
Posted by: RKV at October 16, 2008 09:19 PM
Schragger's language, right off the bat in the abstract, is telling ...
"... District of Columbia v. Heller — in which the Court established an individual right to bear arms ..."
In my view (which I feel is the objectively correct one), Heller established nothing. It merely affirmed the basic protections stated in the amendment.
The word "establish" connotes several meanings, to me the foremost being a creative one, as in "to found, build, or bring into being." In this regard, I disagree with Schragger. It is possible that he meant the less common connotation, which would be to "settle, or show to be valid or true."
But second amendment detractors will claim from now until hell freezes over the Heller created out of whole cloth an individual right to arms.
Posted by: Carl in Chicago at October 17, 2008 09:59 AM
This reminded me of a recent article in the Virginia Lawyers Weekly:
Posted by: Bill at October 20, 2008 02:23 PM
Oops. Let's see if I can't get this to be a functioning link
Posted by: Bill at October 20, 2008 02:25 PM