Heller question

[jmhaclj]

While I enjoy the precision, the logic, and the historicity of Justice
Scalia's opinions, I cannot share the view that his opinion for the Court in
Heller is very imaginative.  Not that Justice Scalia lacks imagination or
creativity.  Just that this point is not of his creation, or of recent
origination.  

Of course, as Mark DeWolf Howe cautioned us nearly fifty years ago in his
work, "The Garden and the Wilderness":

"Judges as judges demand respect as historians, a respect to which they are
not, qua judges any more entitled than any other person."

And

" Among the stupendous powers of the Supreme Court of the United States,
there are two which in logic may be independent and yet in fact are related.
The one is the power, through an articulate search for principle, to
interpret history.  The other is the power, through the disposition of
cases, to make it.  Phrased somewhat differently, the contrast which I have
in mind is that between the scholar's capacity to conduct a groping search
for past event and initial purpose and the statesman's talent for making the
decisive choice of a rule of conduct which he believes to be suitable for
the government of the future.  It is the common-law tradition, perhaps,
which leads the Court and those who study its processes to assume . . . that
the history which is made by the Court's decisions is merely the realization
of the past which the learning of the justices and their clerks has
uncovered.  The judge as statesman, purporting to be the servant of the
judge as historian, often asks us to believe that the choices that he makes
- the rules of law that he establishes for the nation - are the dictates of
a past which his abundant and uncommitted scholarship has discovered."

That the construction of the Second Amendment that Scalia and the Court's
majority accepted is found by some to be unconvincing, particularly when it
is splayed out next to failed proposals with differing language, does not
detract from its settled, historical pedigree.  And, as Professor Howe
instructed, we are all free to be our own historians on the point, not bound
to either Scalia's, Stevens' or Breyers' versions of things.

Jim Henderson
Senior Counsel
American Center for Law and Justice
Adjunct Professor
Regent University School of Law