Convictions : Heller decision

Hills of Beans

Emily Bazelon — Wed, 02 Jul 2008 15:17:00 GMT

Hi, Orin, the Supreme Court's role is modest on some fronts, yes—I agree that deciding that child rapists can't be executed is not of the same order as upholding the death penalty in the first place. Or that outlawing one method of late-term abortion isn't up there with Roe. But in other areas, the court looks bigger to me, and the disagreements worthy. Boumediene is my best recent example: Whether the Guantanamo detainees have the right to go to federal court matters enormously to them, and quite a lot to America's legal tradition and world image, I think. Heller is harder to tell, since it's like an opening bid that invites more challenges to gun restrictions, but it's not every day that a new constitutional right appears in our midst. And the knocking back of the punitive damages award against Exxon seems significant to me, for its own sake and because of the signal Justice Souter's opinion sends about potential limits to state punitive-damages laws. I often wonder if to write about the court is inevitably to hype its importance, and I like your impulse to knock it (and many of us) down a peg. But I'm glad the justices see more than small beans to fight over—Justice Scalia's rhetoric, as usual, being the best evidence of passion stirred.

Is Heller an Original Meaning Decision?

Jack Balkin — Wed, 02 Jul 2008 13:39:00 GMT

Many commentators, including my good friends Randy Barnett and Larry Solum, have praised Justice Scalia’s opinion in Heller v. District of Columbia as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure.

I do not doubt that Scalia uses original meaning methodology at the beginning of the opinion. Rather, the crucial move that decides the case—and that separates the majority from the dissent—is not an argument from original meaning. Let me explain.

continue reading at Balkinization ...

Of Heller, Roe, and Politics

David Barron — Fri, 27 Jun 2008 20:54:00 GMT

At least one leading conservative believes the court fell down on the job in Heller if it views its job as making decisions in ways that create political debates sure to help Republicans, adding further support for my view that the claims by some that the court's approach to Roe (bend it, don't break it) thus far is best explained by a desire to keep that precedent alive for the purpose of ensuring Democrats lose. Jack?