A New York Times article attempting to discredit Justice Scalia’s Heller opinion misfires.
This past week, the New York Times published a piece by Mike McIntire and Eli Murray asserting that a central legal criterion for judging the constitutionality of gun-control measures rests on a misquote. Yet it seems the NYT reporters themselves have misfired.
Here is the article’s basic claim:
When the Supreme Court begins weighing the constitutionality of assault-weapons bans next month, the justices will be guided by the court’s own precedent: a landmark ruling that such restrictions are allowed only if a firearm is both “dangerous and unusual.”
For nearly two decades, judges across the country have invoked this language to strike down gun-control laws. It is a pivotal legal test.
It is also based on a misquote.
Justice Antonin Scalia, writing for the majority in the 2008 case, District of Columbia v. Heller, attributed the “dangerous and unusual” language to Sir William Blackstone, an 18th-century English jurist whose writings became the basis for much of American law.
But in his seminal 1769 treatise, “Commentaries on the Laws of England,” Blackstone referred to weapons that were “dangerous or unusual,” suggesting that a gun did not need to be both in order to be restricted.
But is there actually an error in the opinion? Here is the paragraph from Heller in which the alleged misquotation occurs, with the allegedly offending sentence underlined:
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
Note that the claim, with the quotation, is followed by a “See” string cite (followed, in turn, by a “See also” string cite of further authorities). If they were at all familiar with how legal citation works, this should have given the NYT reporters pause. As others have noted, the Supreme Court’s style guide indicates that the “see” signal is not used for direct quotations. Rather it indicates that “the cited authority is basic source material supporting, although not stating, the text proposition” (emphasis added). Blackstone is cited first not because it is the dominant source but because the authorities are listed in chronological order.
What makes matters worse is that it appears the authors of the story were informed of all this before the story went to press. One of the story authors contacted John Bash, who clerked for Justice Antonin Scalia the term Heller was decided and worked on the case, and Bash explained all of this to the reporter, as Bash details in this LinkedIn post. Bash writes:
This is stunning. A recent article in The New York Times claims that District of Columbia v. Heller–the 2008 Supreme Court case holding that the Second Amendment protects an individual right to own a firearm–contains a “misquote” of Blackstone. The supposed misquote is the phrase “dangerous and unusual weapons” in this passage:
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
That passage is followed by the signal “See” and numerous citations, the first of which is Blackstone. The Blackstone source says “dangerous or unusual weapons” (“or” instead of “and”), but a number of the sources that follow say “dangerous and unusual weapons,” in addition to sources that use the Blackstone disjunctive framing.
Back in October the New York Times reporter reached out to me about this, presumably because I was the law clerk for Justice Scalia on Heller. I immediately wrote back with a full on-the-record explanation of why there was no misquote. Yet the article does not refer to my explanation at all and asserts with no qualification that it was a misquote.
So if anyone is interested, I have posted my email below verbatim. I will also put in the comments my follow-up when the reporter asked me a question.
Here is the e-mail Bash sent to the reporter working on the story:
Hi Mike, thanks for reaching out on this.
Even if I remembered any conversation with Justice Scalia about this particular point (which I don’t), it would not be ethical for me to share private conversations I had during my clerkship wth Justice Scalia about the substance of opinions.
But just as an appellate lawyer, I don’t see the issue. If the historical sources are mixed on the conjunctive or disjunctive framing, then it is true that there is an historical tradition of prohibiting weapons that are both dangerous and unusual, the narrower category that is encompassed by either framing. The fact that Blackstone is the first citation is just because the treatise citations are in chronological order (consistent with making a point about historical tradition), followed by case citations also in chronological order. The introduction of the treatise list with a “See” signal (rather than no signal) means that the quoted phrase is not necessarily a direct quote from each source (or any source)—as with the “See also” signal for the cases. And assuming that it’s correct that the conjunctive sources all trace back to a single 18th Century treatise, that would not detract from the point that learned commentators had endorsed or applied that test through early American history, which is the point the text is making about historical tradition.
Hope that is helpful,
John
Here is the first follow-up e-mail Bash sent “in response to the reporter asking if he could quote me and whether the opinion purposefully omitted the Hawkins treatise quoted in the conjunctive-framing sources so that Blackstone would be first”:
Sure. Happy to take a look at the quote.
Can’t speak to the thinking that went into the opinion, but I really doubt that. As I mentioned earlier, I don’t think the provenance of the limitation is particularly relevant; the point was that commentators had recognized it throughout history. For example, in a Fourth Amendment case, a court might make the point that the curtilage rule—that the immediate vicinity of the home is considered part of the home—has been recognized through American history, citing late Eighteenth Century and Nineteenth Century treatises and cases. Even if that rule could be traced back to a single uncited treatise, that’s not really the point. It’s that courts and commentators endorsed it and so that history and tradition informs the constitutional analysis.
And all that aside, I just think it is implausible that the paragraph would be understood differently if Blackstone had been the second citation rather than the first—especially since Hawkins was himself a very influential legal commentator (if I recall correctly). I’ve never heard of a court or litigant attributing weight to the order of sources subject to the same signal (e.g., “See”), which would seem to me especially unwarranted when the sources are presented chronologically (and so there is an obvious explanation for the ordering other than importance). As I noted before, I think all the sources together make clear a uniform historical tradition of prohibiting dangerous and unusual weapons, the category encompassed by all of their articulations of the rule.
John
Interestingly enough, the NYT article concludes citing a scholar affirming Bash’s contention that, as the relevant passage claims, “there is an historical tradition of prohibiting weapons that are both dangerous and unusual,” or as some would put it, those arms that are “unusually dangerous.” Insofar as some lower courts have applied a different analysis, it is not clear to me how that is attributable to Scalia’s language in Heller, or the contested passage.
The NYT story ends citing a scholar for the proposition that “relying on centuries-old legal precedents requires understanding how earlier generations used language.” One might conclude that those writing on the Supreme Court should heed a similar admonition.
