Judicial Classicism in the Wild

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We thought we would draw the attention of our readers to an excellent concurrence by Judge Paul Matey, joined by Judge Jenn Mascott, in a recent en banc proceeding before the Third Circuit. The majority opinion, written by Judge Freeman, held that the state’s provisions criminalizing the possession of “assault rifles” and “large-capacity magazines” violated the Second Amendment, as interpreted in current doctrine. Judge Matey joined the majority opinion, but also wrote a separate concurrence, in which Judge Mascott joined (while she did not join the majority, principally because, as she explained, the majority in her view unnecessarily remanded the case for further proceedings). Judge Mascott also wrote separately, concurring in part and in the judgment.

Judge Matey’s deeply classical concurrence begins by observing that “‘[t]he right of self defence is the first law of nature,’ 1 Blackstone’s Commentaries, Editor’s App. 300 (St. George Tucker ed. 1803),” and only gets better from there. We are, of course, hopelessly biased by the fact that Judge Matey was kind enough to cite works by our editors, jointly and severally, but the concurrence is suffused with learning and clarity of thought, and a model of how classical judging can be done today. (This is true regardless of what one thinks of the disagreement between majority and dissent; as we have observed many times, the classical legal framework is perfectly capable of tolerating reasonable internal disagreement as to the sorts of judgments of practical reason that are the judge’s task). Do yourself a favor and, as they say, read the whole thing.

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