Friday, June 12, 2009
The best nine-page opinion ever written!
Sandy Levinson
Anyone interested in seeing how a very smart judge can write the equivalent of a treatise in nine pages should read Frank Easterbrook's opinion in National Rifle Association of America v. City of Chicago. It is a truly remarkable performance.
...........................
Judge Easterbrook notes that one might think that the right to trial by jury is part of the American tradition, yet it is notoriously true that neither the grand jury provision of the Fifth Amendment nor the petit jury provision of the Seventh Amendment has been incorporated against the states. There may be very good reason for this, but the reasons ultimately sound, dare one say it, in a "policy choice" rather than any plausible citation to the barebones text or original history of the sacred document. Indeed, the opinion notes that "the best way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate." Take that, Nino (a former colleague of both Easterbrook's and Posner at the University of Chicago Law School)! Is there any doubt that the panel is basically endorsing Fourth Circuit Judge J. Harvie Wilkinson's lacerating attack on Heller as betraying "judicial restraint" and instead serving as a "conservative" analogue of Roe? (Of course, Judge Posner, no inferior polemicist himself, delivered his own withering attack in the pages of the New Republic.)
But wait, there's more. The opinion concludes by quoting Brandeis's hoary chestnut about states as laboratories of experiment, thus throwing the "federalism" gauntlet before, say, Anthony Kennedy, who often writes of the "dignity" of states and the necessity of federal courts to protect that dignity against those who would unduly limit state autonomy. Thus the penultimate line of this remarkable opinion: "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."
Moreover, Judge Easterbrook (and his colleagues) note that any incorporation of Heller, assuming one takes Scalia's opinion truly seriously, means that every rejected self-defense claim suddenly becomes a constitutional issue, since the basis of Scalia's opinion is the hitherto unrecognized fundamental constitutional right of self defense. Some states have limited that right, for example, by requiring "retreat when possible" or "to use non-lethal force when retreat is not possible." Are such limitations now unconstitutional? If not, why not, if one both takes Scalia's opinion seriously and believes that it applies against the states? Chief Justice Roberts dissented this past week in Caperton. the "judge-buying" case, on the ground that it will open the floodgates to litigation by every frustrated loser in any given case. Maybe that's true, maybe not. But if one is concerned about such floodgates, then incorporation of the Second Amendment would seem to assure at least as many new constitutionally-based cases as Caperton. So perhaps Roberts will be less eager to incorporate than some of his conservative admirers think. Who knows?
The Court's moderates--I am hesitatant to call them "liberals"--might ordinarily be expected to endorse incorporating the Bill of Rights, but does anyone seriously believe they will do so in this case? Won't they happily embrace "selective incorporation" and suggest that the Second Amendment has little to do with the "ordered liberty" endorsed by Justice Cardozo in Palko v. Conn., which (in)famously refused to incorporate the double-jeopardy clause against the states.
In any event, anyone who enjoys good legal prose by a judge operating at the top of his game should read the Easterbrook opinion.
http://www.scotusblog.com/wp/wp-content/uploads/2009/06/7th-ca-nra-6-2-09.pdfhttp://balkin.blogspot.com/2009/06/best-nine-page-opinion-ever-written.html
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