July, 2008

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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