Women Receiving Aliyot and the Second Amendment
Seforim has a posted a review by Aryeh Frimer of Daniel Sperber’s book Darka shel Halakhah. The review is part of a longer article which will be published in the future, and has resulted in a lively series of comments, numbering over one hundred. From some of the comments, it is possible to see the different ways that people think halakhah should be decided and the differences between them. This review and its comments came to mind when I read some analysis of the recent Supreme Court regarding the Second Amendment and the right to bear arms, D.C. v. Heller. For blogosphere commentary, see this summary at Legal Theory. One of the most interesting comments that I read was this post by Sanford Levinson. I think that Levinson’s comments are very relevant for those who give serious thought to how halakhah is decided and the relationship between history and halakhah. Here are some excerpts from his commentary, the emphases are mine.
Then there are the “internal” features of the opinions. I confess that I am equally dismayed by the Scalia and Stevens opinions (though, if absolutely forced to choose, I’d go with the Scalia opinion). One of the most remarkable features of Justice Scalia’s majority opinion (joined, of course, by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito) and Justice Stevens’s dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Justice Scalia, of course, has long been identified with “originalism,” even though some of his critics, both liberal and conservative, note that he has been a most inconsistent one. But Justice Stevens has certainly not embraced originalism. Yet they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.
If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory.
Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues.
What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so. Thus, in effect, they could not be citizens. Charles Sumner, who, unlike Taney is quoted by Scalia, strongly endorsed the rights of anti-slavery settlers in Kansas to have guns to protect themselves against their pro-slavery opponents. If one reads only Scalia and Stevens, one would believe that there is no dynamism to the Constitution, which is both stupid as a theory of interpretation and, more to the point, completely misleading as a way of understanding the American constitutional tradition.
Update: In a follow-up post with a reaction to other commentators who praised the level of historical analysis found in the Supreme Court opinions, Levinson writes,
My question is this, perhaps directed especially to legal academics: If a student had submitted either the Scalia or the Stevens opinion, or, even more to the point, if a job applicant had submitted as a writing sample either of the opinions, what would your reaction be? Would you possibly regard either one as an example of “scholarly quality” rather than tendentious brief writing? I would not, and I find it literally amazing that a competent scholar, as Prof. Bernstein most certainly is, would issue such praise for the handiwork of the Court (even if one agrees, as I do, with his critique of Justice Douglas’s ridiculous “only one thing” assertion).
The title of Levinson’s post, “Parallel universes about what counts as ‘scholarly analysis’.”