Grading the Heller Decisions

I have been wanting to do this for a while. I am taking the point of view that these are my students in a tutorial on the Second Amendment in US Constutional law at a British University.

Let's start with Stephen Breyer:

Steve--Interesting ideas, but not really constitutional or even germane. You're focusing a bit more on policy than law here. This isn't PPE or French, we're studying law here. OK, I am being far harsher than I should on you since you are choosing to defer to the legislature which isn't a bad position. Although see my comments to John R about leadership It's just that you are going out on a limb with this approach. Unique, but I am not sure the founders would have really been too thrilled with this approach or what they would have made of it. Cribbing John S's argument is what saved you from Nino and John R's fate here. Well, at least you didn't write an essay like Nino's since I hate giving "F"s. I know the Second Amendment is pretty confusing. Also, I don't agree that the protection the Amendment provides is not absolute--I mean it does use "shall". I was tempted to give you a D+, but you're getting a C- since I know you can do better. My question is why you didn't? Were you at the Union drinking with the lads when you wrote this figuring that cribbing John's essay would get you off the hook and a better grade? Are you ticked off that John made the cadet corps and not you?

Sorry, not much I can do for you on that front.

John--the best of the "three" essays since the other John cribbed Nino. Although I am really disappointed that you didn't deal with some other aspects of this issue, such as the insurrectionist theory or self-defence being an anachronism aspect. I would have loved to have seen your take on that. You also have a slam dunk with the "legislative intent" aspect from the ratification debates that you failed to address in detail. Other than that, you addressed the issue in pretty much a concise, thorough, and conservative manner. Sorry, but you get an A- because it wasn't perfect. As I said, I would have liked a bit more from you. Did you think that Nino was going to get an A for pure creativity?

Nino--Where did you come up with this? First off, you give stare decisis extremely short shrift. Not to mention your essay was a real surprise for me given all this talk about originalism and trying to decipher the founders' intent in the tutorials. You did everything but that. First off, your concept of legislative interpretation does not gibe with your desire to use the Common Law and the Bill of Rights as a source. Where did you come up with that idea anyway? You take Blackstone and totally misunderstand him in this essay. Instead of using his legislative analysis, you use something from a law review article from 1996! What about Marbury V. Madison as well--how could you have forgotten that one? Another thing, you use an idea of self-defence which originated well after the period in which the Bill of Rights was drafted. To top it off, you neglect any of the material from the ratification debates which show that the right was to protect the Article I, Section 8 militias.

You get an F since it probably won't hurt you in the long run. Sometimes original is just not good. Remember, "because everybody believes it" is a fallacy and does not make a concept correct.

Well, at least you didn't advocate the insurrectionist theory, then I would have really wondered what was going on. I would fail you in this course if you had done that.

Anyway, Nino, you need to reread John's essay as he has a pretty good grasp of the concepts here.

John R--You're supposed to be a leader. There are many responsibilities that come with leadership, one of which is not following. The other is setting a good example. Leadership is a position of trust and belief that requires experience. Additionally, one must make unpopular decisions when one is a leader. You cannot be afraid of controversy, especially if you know that the position you will take is the correct one. I had many reservations when I heard you were made a cadet for that reason, but it's a bit late for me to have you removed from the Corps. That said, I was hoping you would come up with something like the other John's essay especially after the comment during the tutorial about "not wanting the Second Amendment to have baggage". Therefore, I am truly disappointed that you cribbed Nino's essay. You didn't have the decency to come up with your own version of an essay, which at least Steve had the decency to do.

F and I will talk to your regiment's commander about this poor show as it is not worthy of a leader.

Editorial comment--I was going to make the PPE be an in joke for "Steve", but am explaining it for the non-UK and those who haven't attended British Uni types