Sept 20 (Reuters) - The following is the text of a response
by Judge Richard Posner to comments by Justice Antonin Scalia in an interview with Reuters this week:
Reuters has invited me to respond to a statement made by
Justice Scalia in an interview of him by Stephen Adler on
The statement comments on a purported statement of mine in a
review in the New Republic of Reading the Law by Justice Scalia
and Bryan Garner. I say "purported statement of mine" because
what Mr. Adler said I had said was that "Justice Scalia actually
resorts to legislative history in" District of Columbia v.
Heller. I didn't say that. I said that "when he [Justice Scalia]
looks for the original meaning of eighteenth-century
constitutional provisions-as he did in District of Columbia v.
Heller, holding that an ordinance forbidding people to own
handguns even for the defense of their homes violated the Second
Amendment-Scalia is doing legislative history." There is no
question that Scalia in Heller was looking for the original
meaning of the Second Amendment-that is his method of
constitutional and statutory interpretation, the method defended
in Reading the Law.
In the interview Scalia responded to Adler's
characterization of my statement as follows: "Only--only in
writing for a non-legal audience could he (Posner) have made
that argument. Because any legal audience knows what legislative
history is. It's the history of the enactment of the bill. It's
the floor speeches. It's the prior drafts of committees. That's
what legislative history is. It isn't the history of the times.
It's not what people thought it meant immediately after its
enactment. It's not what laws were-were continued in effect
despite this. That-that is simply not legislative history. And
and-and to say that I use legislative history in how-is-is
simply, to put it bluntly, a lie. And-you can get away with it
in the New Republic I suppose, but-but-but (laughter) not-not to
a legal audience." I had indicated what I meant by legislative
history when I had said that in seeking the original
eighteenth-century meaning of the text of the Second Amendment
Justice Scalia had been doing legislative history. His quest for
original meaning had taken him to a variety of English and
American sources from which he distilled the existence of a
common law right of armed self-defense that he argued had been
codified in the Second Amendment.
He may not consider such a historical inquiry to be an
exercise of "legislative history," because he defines
legislative history very narrowly (and in the interview calls it
"garbage"). His coauthor, Bryan Garner, does not define it so.
Here is the definition of the term in Black's Law Dictionary
(9th ed. 2009), of which Garner is the editor: "The background
and events leading to the enactment of a statute, including
hearings, committee reports, and floor debates." The "background
and events leading to the enactment" of the Second Amendment are
the focus of the Heller opinion.
Even if I accepted Scalia's narrow definition of
"legislative history" and applied it to his opinion in Heller, I
would not be telling a "lie." For Justice Scalia does discuss
the "drafting history" (legislative history in its narrowest
sense) of the Second Amendment. See 554 U.S. 598-599, 603-605.
So I would not have been lying, or even mistaken, had I said
in my book review that in Heller Scalia "actually resorts" to
"legislative history" in its narrowest sense ("drafting
history"). But I did not say that.
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