Heller, HLR, and Holistic Legal Reasoning

Article excerpt

Well, the show sure ended with a bang. On the last day of the Term, the Court--for the first time ever, by a single vote, over vigorous dissents, and against the weight of circuit precedent--wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense.

Experts began parsing District of Columbia v. Heller (1) within hours of the Court's pronouncement. Over the ensuing weeks, sophisticated commentary blossomed in a rich profusion of blogs, wikis, posts, threads, and chats. Now, nearly five months after the decision, does anything remain to be said? In the Internet Age, does anyone still read law reviews? They seem so twentieth-century.

Yet the Justices apparently still do look at law reviews. Almost half the cases decided with signed opinions last Term cited at least one law review article. (2) In Heller itself, the various opinions invoked over a dozen articles, including a 1940 classic from the Harvard Law Review. (3) Indeed, last Term was a banner year not just for gun wielders like Dick Heller, but also for the editors of the Harvard Law Review. All told, the Justices cited fifteen different HLR articles--more than double the article count of any other legal periodical. (4)

Perhaps the Court pays particular attention to HLR because HLR has traditionally returned the compliment, famously beginning every Volume with an entire issue devoted exclusively to the Court's most recent work product and typically featuring in the remaining seven issues a rich smorgasbord of scholarship suitable for judicial consumption.

Remarkably, four former HLR staff members--John Roberts, Antonin Scalia, Ruth Bader Ginsburg, and Stephen Breyer--now sit on the very Court they once helped analyze as student editors. No other law review can point to four alums who have ever served on the Court, much less four former editors sitting together as Justices. And the next round of Justices may well be picked by Barack Obama, who first rose to national attention as HLR President. (5)

Nor is HLR's influence confined to those who once served on this review. Justice Stevens, for example, though not a Harvard Law Review alum, is evidently a loyal reader. Not only did he cite to HLR in Heller itself, but during the Term as a whole he invoked almost as many HLR articles (seven) as were cited by all his colleagues combined.

In this Comment, I refract Heller through the prism of HLR by paying particular attention to the aforementioned HLR alums and HLR's loyal reader, Justice Stevens. (6) I conclude that no member of the HLR group offered a sufficiently holistic account of certain important methodological and substantive issues implicated by the Heller debate. Methodologically, no member of the HLR group persuasively explained how the Court should proceed when established case law collides with the clear meaning of the Constitution itself. Substantively, members of the HLR group scanted various amendments beyond the Second even though three of these amendments--the Ninth, the Fourteenth, and the Nineteenth--are in fact key to a full understanding of what "the right of the people to keep and bear arms" properly means in America today. The HLR group's failure to highlight the Fourteenth Amendment is particularly notable because this failure has a fascinating history starring the Harvard Law Review itself and leading mid-twentieth-century figures closely associated with this periodical.

I. THE DUELISTS: SCALIA AND STEVENS

In 1959-1960, Antonin Scalia served as Notes Editor for Volume 73 of the Harvard Law Review. (7) In 2008, he delivered what history may well deem his most memorable opinion, writing for a five-Justice majority in the biggest Second Amendment case ever decided. John Paul Stevens, the Court's Senior Associate Justice, wrote the lead dissent for himself and three others. …