McDonald v. Chicago

Steven Jamar stevenjamar at
Mon Mar 1 15:29:43 PST 2010

I think Heller was decided within bounds, but it surely was weird in  
lots of ways.

The Court, as others have done and do, uses history in an instrumental  
way.  It is not trying to really discover what was, but what was from  
a certain perspective.  This is the way history has always been done.   
There is no One True History out there.  FWIW, I think Stevens had the  
better of the history, but even if he didn't, remember his was being  
presented in the context of a corrective to the majority  
overstatements and abuses of history.

It would have been much better to have history, particularly since it  
is unclear and contested, play a much smaller role and decided it  
straight up on policy without the disingenuous appeal to non-existent  
or thin or manufactured or highly selective support in the historical  

But some of the justices seem unwilling to recognize that that is what  
they are doing.

The caution from Brown that sometimes history isn't of much help has,  
unfortunately been forgotten or rejected by a number of justices.

> On Mar 1, 2010, at 5:40 PM, Raymond Kessler wrote:
>> Looks like some folks have  still not gotten  over the Heller  
>> decision.  Stevens’ dissent in Heller would be a D-.
>> Ray Kessler
>> Prof. of  Criminal Justice
>> Sul Ross State Univ.
>> From: Paul Finkelman [mailto:paul.finkelman at]
>> Sent: Monday, March 01, 2010 4:37 PM
>> To: 'Calvin Johnson'; conlawprof at; Raymond Kessler
>> Subject: RE: McDonald v. Chicago
>> The fact that the Court may have rejected these arguments may only  
>> indicate that the originalism of the majority is a useful ploy when  
>> it gets the majority where it wants to go and it ignored when it  
>> does not get the majority where it wants to go.  The Justices are  
>> not, in the end, really very much interested in history.  The  
>> Heller opinion would be a C- or worse in a history course.
>> ----
>> Paul Finkelman, Ph. D.
>> President William McKinley Distinguished Professor of Law
>> Albany Law School
>> 80 New Scotland Avenue
>> Albany, NY 12208
>> 518-445-3386 (p)
>> 518-445-3363 (f)
>> paul.finkelman at
>> --- On Mon, 3/1/10, Raymond Kessler <rkessler at> wrote:
>> From: Raymond Kessler <rkessler at>
>> Subject: RE: McDonald v. Chicago
>> To: "'Calvin Johnson'" <CJohnson at>, conlawprof at
>> Date: Monday, March 1, 2010, 4:14 PM
>> You’re nearly two years behind.  The points your are making about  
>> the militia were rejected in D.C. v. Heller (2008).  Many of those  
>> issues were settled in the militia clauses.
>> Ray Kessler
>> Prof. of  Criminal Justice
>> Sul Ross State Univ.

Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Howard University School of Law           fax:  202-806-8567

"I am in Birmingham because injustice is here. . . . Injustice  
anywhere is a threat to justice everywhere."

Martin Luther King, Jr., (1963)

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