In Posner’s initial review of Scalia & Garner’s book in The New Republic, Posner chastised Scalia for citing legislative history in D.C. v. Heller.
Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.
Judge Posner points to a supposed contradiction: that the book condemns the use of legislative history, yet “Scalia is doing legislative history when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller.” Judge Posner knows very well that “legislative history” does not embrace what theHeller opinion used—the history of the times when the legislation (or constitutional provision) was adopted, including the understandings reflected in contemporaneous legislation and scholarly commentary. “Legislative history” means the floor debates, committee hearings, and committee reports of the legislature or convention that adopted or proposed the text in question. It was not the Court’s opinion in Heller but Justice Stevens’s dissent that used (and, we think, misread) the Second Amendment’s drafting history. Lawyers know the distinction, but Posner’s depiction of a contradiction where there is none, in a magazine directed to nonlawyers, preys on the unknowledgeable.
To this Posner replied:
Speaking of legislative history, Garner says that I “prey on the unknowledgeable” when I say that Justice Scalia was doing “legislative history” in his opinion that holds that the Second Amendment creates a right to own guns for personal self-defense (District of Columbia v. Heller). Garner defines legislative history more narrowly than I would, to mean only “drafting history”—but Scalia did discuss the amendment’s drafting history in his opinion and claimed that it supported his interpretation of the amendment.
Now, it’s Scalia’s turn to get in the mix. On Monday, during a wide-ranging interview with Scalia and Garner by Stephen Adler, Justice Scalia opined on Posner. When asked about Posner’s claim regarding legislative history (Adler does not quote from Posner’s article–see above for an accurate quotation), Scalia replies:
Only– only in writing for a non-legal audience could he have made that argument. Because any legal audience knows what legislative history is. It’s the history of the enactment of the bill. It’s the floor speeches.
It’s the prior drafts of committees. That’s what legislative history is. It isn’t the history of the times. It’s not what
people thought it meant immediately after its enactment.
It’s not what laws were– were continued in effect despite this. That– that is simply not legislative
history. And– and– and to say that I use legislative history in how– is– is simply, to put it bluntly, a lie. And–
you can get away with it in the New Republic I suppose, but– but– but (LAUGH) not– not to a legal audience
Justice Scalia did his best Joe Wilson impersonation, and said that Posner “lied” about Scalia citing legislative history in D.C. v. Heller.
At another event before the Federalist Society, Scalia had this to say about Posner’s legislative history charge:
What are your thoughts on the Richard Posner book review?
“I’m not going to get into this whole thing written for a glossy magazine.”
Okay, I will say this. It was misleading of Judge Posner to claim that I used “legislative history” in District of Columbia v. Heller, the landmark Second Amendment case. There’s a difference between considering “legislative history” — a legal term of art referring to the history of the enactment of a given provision, such as committee reports and floor statements and the like — and looking to the history of the time to get an understanding of how terms in a provision were understood.
Not to be outdone, Judge Posner put out a press release in response. Well it wasn’t really a press release, but I don’t know what else to call it. Reuters put out Posner’s remarks with this introduction:
Reuters has invited me to respond to a statement made by Justice Scalia in an interview of him by Stephen Adler on September 17.
Here is the crux of Posner’s reply:
I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment.
He may not consider such a historical inquiry to be an exercise of “legislative history,” because he defines legislative history very narrowly (and in the interview calls it “garbage”). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” The “background and events leading to the enactment” of the Second Amendment are the focus of the Heller opinion.
Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598-599, 603-605.
So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia “actually resorts” to “legislative history” in its narrowest sense (“drafting history”). But I did not say that.
Oooohhh….citations to Heller. So what is on pages 598-599 and 603-605 of Volume 554 of the U.S. Reports (I haven’t looked at Heller in years!):
On pages 598-599, Scalia discusses the debate that led to the Second Amendment in order to explain the “relationship between prefatory clause and operative clause” (boy, does that make me feel nostalgic for Supreme Court cases that have nothing to do with broccoli or precedents).
The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti–Federalist 234, 242 (H. Storing ed.1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed.1976) (hereinafter *599 Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed.2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.
Here, Scalia cites these debates to give meaning to how the Second Amendment was understood–not as evidence of how the Second Amendment was drafted (what we would call legislative history).
What about on pages 603-605? Scalia responds to Stevens’s attempt in his dissent to focus on the drafting history of the Second Amendment.
Justice STEVENS relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice STEVENS flatly misreads the historical record.
Over the next several pages, Scalia responds to Stevens’s arguments by citing debates in the state conventions.
Scalia’s opinion is entirely consistent with his retort to Posner:
There’s a difference between considering “legislative history” — a legal term of art referring to the history of the enactment of a given provision, such as committee reports and floor statements and the like — and looking to the history of the time to get an understanding of how terms in a provision were understood.
So is Posner correct when he says:
“Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598-599, 603-605.”
Well, on pages 598-599 Scalia discusses the original meaning of the Second Amendment. On pages 603-605 Scalia only discusses drafting history in response to Stevens’s dissent. So even by Scalia or Garner’s definition, Posner is wrong. There is just a slight bit of irony that Posner is citing a dictionary, and Garner’s dictionary at that, to define a term (aren’t dictionaries useless to define legal terms?).
Now, on a broader jurisprudential point, the distinction between original meaning, and what can be gleaned from the drafting history (what can be seen as original intent) is very thin. I argued in this article that the divide between Scalia’s majority opinion and Stevens’s dissent was that of original meaning and original intent. Scalia used history to show how terms were understood, and Stevens’s dissent used the drafting history to show what the intent of the framers were. In that article, I also criticized Posner for making similar historical errors.
Randy Barnett made similar points in this Op-Ed.
Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” – or the original principles “underlying” the text – to negate its original public meaning.
I think Posner’s confusion is jurisprudential, rather than analytical. As someone who rejects originalism, it is no surprise that he takes no care to distinguish between different strands of it, evolution and the doctrine, developments in originalist scholarship, and how it can be used to provide constitutional meaning.
In fact, Stevens actually criticized Scalia for relying on sources to give meaning to the Second Amendment, rather than focusing on the drafting history like he did!
Although it gives short shrift to the drafting history of the Second Amendment, **2837 the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone’s Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history.28 All of these sources shed only indirect light on the question before us, and in any event offer little support for the Court’s conclusion.29
Now, I think Stevens is correct about the latter two sources, as he notes in Footnote 28, where Stevens wrote:
The Court’s fixation on the last two types of sources is particularly puzzling, since both have the same characteristics as postenactment legislative history, which is generally viewed as the least reliable source of authority for ascertaining the intent of any provision’s drafters.
In Heller, Scalia stated that he relied correctly on post-ratification commentary:
We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. Before proceeding, **2805 however, we take issue with Justice STEVENS’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task. Seepost, at 2837, n. 28. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. Ibid. “Postenactment legislative history,”ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.
Again, Scalia is consistent in how he defines legislative history, though sources after the enactment of the Second Amendment may provide meaning, but is not original meaning.
As I wrote when I was a 3L for Joyce Malcolm’s class:
Although post-enactment material cannot have any bearing on the meaning of the Second Amendment as drafted by the framers, it still can help paint the picture of original public meaning. The understanding of the term “keep and bear arms” did not dissipate instantly in 1791 when it was ratified. Rather, strong emanations of this understanding pervaded throughout early America thought. As such, statements of law from this period service as strong indicia of reliability, though not dispositive, of the original meaning . . . .
This history, from 1215 to the early 19th century paints a very strong picture of keeping and bearing arms, as an individualized right meant to protect liberty. For Justice Stevens to merely focus on the drafting of the Second Amendment in the waning years of the 18th century, at the price of ignoring all that came before it, is unfaithful to the true principles of originalism, and unsurprisingly reveals his skewed and inaccurate version of history.
Of Posner, I wrote:
Judge Posner has some critiques of originalism. But rather than simply critiquing it, he seeks to redefine it. Odd technique. Judge Posner asserts that “originalism without the interpretive theory that the Framers and the ratifiers ‘expected the courts to use in construing constitutional provisions is faux originalism.’”264 Says who? Posner’s statement in it of itself devolves back into intentionalism, as he speaks of what the ratifiers “expected.” It is also curious that Posner, an avowed Pragmatist who rejects originalism, should be relied on as an expert on how to define the contours of this jurisprudence. . . . .
Rather than focusing on what the original public meaning of the Second Amendment was at the time it was ratified, Judge Posner attempts to ascertain what the “intent” of the Founders was. He is also guilty of relying on some of the seven dirty words of intentionalism.272 He uses words like the “motivation for the Second Amendment,” “concerns that actuated its adoption,” “the purpose of the Second Amendment,” and what the “framers meant.”273 As discussed supra, trying to determine what the motivations, concerns, or intentions of the framers is a futile endeavor.274 Elsewhere Judge Posner ceases using the seven dirty words, switches his vernacular, and adopts the accepted notions of “original meaning” and “original understanding” to conclude his article.275 Whereas his minor premises were conditioned on an “original intent,” even if his conclusion is based on “original meaning,” his syllogism collapses.
Because Judge Posner focuses so heavily on what he considers to be the intentions of the Framers, he fails to consider what the terms in the Second Amendment mean. He mentions the “language and background” of the Second Amendment, but totally glosses over the centuries of common law history, from Magna Carta, to the Game Laws, to the English Bill of Rights, to the disarming of the Bostonians. None of that matters to Judge Posner. Were Posner to fully appreciate the “language and background” of words such as “well regulated militia,” “free state,” and “keep and bear arms,” these terms would take on a whole new meaning. The Second Amendment cannot be interpreted in this historical vacuum Judge Posner creates.
It is fascinating how these jurisprudential debates keep emerging over and over again. The tropes between Scalia and Posner here are old–or at least as old as 2008.
Can you imagine if Reagan had appointed Posner to replace Powell instead of Kennedy? Scalia and Posner, both on the Court? It would have been worse that Frankfurter and Black! You know what? The sures way Obama could get Scalia to retire would be to appoint Posner to the bench!