Legal Theory

Posner Fires Back in Spat over Scalia's Book and the Definition of Legislative History


What exactly is legislative history, and did Justice Antonin Scalia use it when he wrote his opinion in District of Columbia v. Heller holding that the Second Amendment protects the right to own guns?

Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals is considering those questions in response to comments by Justice Antonin Scalia, who asserted that Posner was telling a lie in a review of a book co-authored by Scalia called Reading Law: The Interpretation of Legal Texts. Reuters has the story.

Scalia disdains the use of legislative history when interpreting statutes because he believes it can be manipulated by lobbyists. Posner asserted in his book review, however, that the justice was “doing legislative history” when he looked for the original meaning of the Second Amendment.

The book review spurred Scalia to assert in a Reuters interview that Posner is wrong. “To say that I used legislative history is simply, to put it bluntly, a lie,” Scalia told Reuters. “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.”

After Scalia’s statement, Posner sent his response to Reuters along with an email that read, “Responding to a Supreme Court justice who calls one a liar requires special care in expression.”

According to Posner, Scalia looked to English and American sources to find a common law right of armed self-defense that was codified in the Second Amendment. In his view, he wrote in the response provided to Reuters, that’s legislative history.

Scalia may not consider his historical inquiry to be “legislative history” because he defines the term very narrowly, Posner says. “His coauthor, Bryan Garner, does not define it so,” Posner writes. “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.”

Hat tip to How Appealing.

Prior coverage:

ABAJournal.com: “Scalia Weighs In on Posner’s Controversial Book Review, Calls Posner’s Assertion ‘a Lie’”

ABAJournal.com: “Scalia Co-Author Sees ‘Tendentious Hostility’ in Review by Posner, Who Denies Any Personal Animosity”

ABAJournal.com: “Textual Originalism and the Great Sandwich Debate: Posner Reviews Scalia”

ABAJournal.com: “Scalia Discusses Views on Textualism and the Process of Co-Writing His New Book”

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