July, 2008

Wrapping It Up: Incorporation and Judicial Activism

by Robert A. Levy
The Conversation
July 30th, 2008

With this final posting, I’d like to revisit two issues that I raised in my initial essay: incorporation and judicial activism. Both issues have implications for future litigation — consistent with the caption for this blog, “After Heller: The New American Debate.”
I use as my takeoff point two comments by Erwin Chemerinsky, who [...]

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Principle, Surplusage, and Danger

by Robert A. Levy
The Conversation
July 30th, 2008

Dennis Henigan begins his latest post by claiming that I endorse this non-sequitur: “Since there are liberal law professors who agree with Justice Scalia’s view of the Second Amendment, Scalia’s opinion in Heller must be as principled as the views of the liberal law professors.” Not quite, Dennis. Yes, there are many [...]

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The Heller Majority: Wrong and Unprincipled

by Dennis A. Henigan
The Conversation
July 29th, 2008

On the issue of whether Heller represents conservative legal activism, I’d like to go back to an intriguing argument made by Bob Levy several days ago. Levy argues that the law professors who favor gun control, but reject the “militia purpose” view of the Second Amendment, effectively insulate Justice Scalia’s majority opinion from the [...]

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They Pull Me Back In

by Robert A. Levy
The Conversation
July 28th, 2008

“Just when I thought I was out, they pull me back in.”  With due apologies to Al Pacino, that’s my reaction when Dennis Henigan and Erwin Chemerinsky persist in rehashing the question whether Second Amendment rights can be exercised only in the context of militia service — a question that has been laid to rest, [...]

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In Scalia’s Defense

by David Kopel
The Conversation
July 27th, 2008

Some of the points that Erwin Chemerinsky raises (e.g., the conscientious objector clause in Madison’s original draft of the Second Amendment; his interpretation of U.S. v. Miller) are addressed in Justice Scalia’s majority opinion. I think that Scalia rebuts them effectively; if you don’t think so, nothing I can write will change your mind.
So in [...]

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The Problem of Context Revisited: The Massachusetts Example

by Dennis A. Henigan
The Conversation
July 26th, 2008

Let me be the first to welcome Dean Chemerinsky to the fray.  Perhaps he will draw some fire while I reload (so to speak).
Bob Levy thinks a gun lobby strategy of using the “slippery slope” argument to keep gun owners in a perpetual state of anxiety about gun confiscation would be “bizarre and ineffective,” while [...]

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Standards of Review: A Review

by Robert A. Levy
The Conversation
July 25th, 2008

When it comes to the Second Amendment, Dennis Henigan believes in “greater judicial deference to legislative judgments.” Why? Because the right to keep and bear arms “has immediate and direct implications for the health and safety of others.” Hmm. What about publication of a manual for hit men, or a booklet [...]

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The Heller Decision: Conservative Activism and its Aftermath

by Erwin Chemerinsky
Reaction Essay
July 25th, 2008

In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

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If this Is Defeat, We’ll Take It

by Robert A. Levy
The Conversation
July 25th, 2008

Cloaking himself and the Brady Center in the mantle of “reasonableness,” Dennis Henigan disclaims the statement of Brady co-founder Pete Shields and asserts that it “has never been” and is not now the policy of his organization to “make possession of all handguns . . . totally illegal.” Perhaps so. Perhaps, as Henigan [...]

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The NRA and the Supreme Court

by David Kopel
The Conversation
July 25th, 2008

Dennis Henigan is a smart lawyer who knows a great deal about gun laws and the Second Amendment. But one subject on which he is not an expert is the internal deliberations of the National Rifle Association. Reading Henigan to learn the secret motives of the NRA is akin to reading Richard Dawkins to learn [...]

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Take It up with the NRA

by Robert A. Levy
The Conversation
July 24th, 2008

I fear that Dennis Henigan has somehow mixed up his blogs.  This blog — Cato Unbound — is an exchange between Henigan, Kopel, Chemerinsky, and Levy.  The blog on which Henigan has most recently posted is an exchange between Henigan and the NRA — somewhat complicated by the fact that the NRA is not a [...]

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What Did They Mean in Massachusetts?

by David Kopel
The Conversation
July 24th, 2008

In a previous post, Dennis criticized me for not “responding to the evidence, presented in my essay, of Justice Scalia’s manipulative and inconsistent textualism.” OK.
Much of the post does not merit a response because it does not advance the discussion, as it amounts to a précis of the arguments made by Justice Stevens in his [...]

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One Man’s “Sensible” Is Another Man’s “Extreme”

by David Kopel
The Conversation
July 24th, 2008

Dennis Henigan’s criticism of Bob Levy leaves a little to be desired in terms of accuracy. Levy had quoted Nelson “Pete” Shields’s explanation of his plan for gradual handgun prohibition. Here’s the full quote:
“The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is [...]

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