The Heller Second Amendment Case

Most of the legal blogs I regularly read have posted extensively on the U.S. Supreme Court's ruling in Heller that the Second Amendment creates an individual right to own firearms, subject to certain undefined limitations. I don't have particularly strong opinions on the case itself, one way or the other, but I do want to briefly mention a couple of points.

First, many are celebrating both the majority's and the dissent's frequent citation and discussion of scholarship. Like most legal scholars, I love to see legal scholarship invoked as it gives me the hope that what legal scholars produce has a real role to play in shaping the law. However, it's not clear to me that in a 5-4 decision like Heller, where the Court is predictably split on conservative/liberal lines, whether the scholarship actually influenced the decision or is merely used to help explain a previously reached conclusion about how the case should be decided. A Canadian lawprof named Allan Hutchinson has also warned, rightly in my opinion, of law professors who write only with an eye to being cited by the courts, as if a count of citations was necessarily validation of the quality of one's work. Cynically manipulating one's writing in order to make it judicially palatable can be demeaning to true scholarship.

Second, Heller is another good example of the dangers that surround lawyers (advocates by nature) attempting to answer questions of historical or empirical fact. Judges and scholars are easily tempted to zealously embrace their position whole-heartedly and, in doing so, to argue that the opposing position is completely wrong and almost frivolous, when often the evidence is contradictory and the facts ambiguous. Such one-sidedness is laudable for a lawyer zealously representing a client but quite problematic in judging, where the goal is (or should be) an objective analysis of the relative merits of various positions. In other words, deciding that Position A is best doesn't always require treating advocates of Position B with thinly-veiled contempt. However, that's been the norm between majority and dissenting opinions in far too many recent Supreme Court opinions.