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July 02, 2008

Another Justice Stevens Error Spotted

This one is found by Professor Volokh and is quite nitpicky. A disagreement between Justices Scalia and Stevens boils down to the meaning of the word "it" in an 1876 Supreme Court case, U.S. v. Cruikshank. As you read the following, keep track of what the word "it" is referring to:

The right there specified [in the indictment] is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.

It seems clear to me (and to Justice Scalia and Professor Volokh) that "it" refers to "the right there specified...'bearing arms for a lawful purpose.'" Justice Scalia used Cruikshank, in part, to show a long-standing recognition that the Second Amendment protected an individual right to firearms from Congressional interference. But Justice Stevens disagrees. He says, contrary to the words right out of the Cruikshank excerpt which you just read, that only the indictment used the phrase "bearing arms for a lawful purpose" and that those words were not adopted by the Court to describe the right protected by the Second Amendment.

The majority's assertion that the Court in Cruikshank "described the right protected by the Second Amendment as '"bearing arms for a lawful purpose,"'" is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment's description of the right.

Professor Volokh is charitable about the mistake and includes a bit of good advice. Perhaps future Stevens' clerks will even take it:

Maybe I'm missing something here, but I don't think I am: It seems to me that the dissent just flatly misread Cruikshank, and in an important way -- and didn't correct this despite Justice Scalia's express and accurate response in footnote 22 of the majority.

So this is one reason I tell my students: Never rely on an intermediate source's characterization (or even quotation) of an original source; always read, quote, and cite the original source. (True, sometimes when the intermediate source is authoritative -- for instance, is a majority opinion -- its mischaracterization of an original source may itself create binding law. [As in the Hamdan case as I shared last week. --Gabe] But the original source still says what the original source always said.)

I promise this post will be the last one of these I put up, at least for Kennedy, Heller, or Boumediene. At some point this just becomes cruel and tends to subject the judiciary to more scorn than it deserves. While Volokh and others are looking through the opinions so as to understand what the justices did, I find myself looking only to find what the justices did wrong. That's not really helping anyone.

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posted by Gabriel Malor at 09:11 PM

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