The flagship publication of the DC Bar Association is the Washington Lawyer. The December issue reviews a new book by legal journalist Jeffrey Toobin, The Oath. Here’s an excerpt from the magazine’s regular reviewer, Ronald Goldfarb:
What is clear is Toobin’s ability to tell intriguing stories, and also to present sound overviews of important cases and the jurisprudence they represent without dumbing down the legal analysis. An example is his story behind the notorious District of Columbia v. Heller case dealing with gun control. I know the inside story from the man behind the case (not Dick Heller, the selected plaintiff, but Robert Levy, the chair of the board of directors of Cato Institute who dreamed up the case and managed its route to new constitutional law), and Toobin’s story rings true. Toobin’s characterization of the politics, history, and constitutional law surrounding this very important decision is smart and informative. His conclusion that Justice Antonin Scalia’s majority opinion was “an improvisation designed to reach a policy goal” is ironic. Scalia argues that the Constitution is “dead,” not a living document, and Toobin shows how perverted Scalia’s theory is by using the justice’s own words and reasoning in Heller. Rather than an example of his repeated preaching that the Constitution is “textualist” and “originalist,” Scalia’s opinion demonstrates that the Constitution is what the justices say it is: always dressed up in chameleonic jurisprudence to suit the justices’ predilections and to reach their political conclusions. (Bush v. Gore is a classic example.)
There you have it: A sound overview without dumbing anything down. Cato chairman Bob Levy “dreamed up” an idea about some constitutional right to keep and bear arms. Then Justice Scalia said, “My predilections match your dream!” Scalia then cobbled together some nice‐sounding arguments and now America has to live with this darn Heller precedent.
Mr. Toobin, the book author, makes the claim that Scalia was once a “conservative intellectual” but is now a “right wing crank.” The book reviewer, Mr. Goldfarb, then informs us that Toobin’s treatment of the justices is “quite balanced.” (I know you don’t believe me — so go read it yourself.)
For a quick blog post, suffice it to say that Scalia was not alone on this. Four other justices agreed with his conclusion in Heller. I would also note that distinguished liberal scholars — Sanford Levinson, William Van Alstyne, and Nat Hentoff, to name a few — hold similar views of the Second Amendment.
For more on the Heller case and the Second Amendment, go here and here.
For another look at the worldview of establishment liberalism, go here.