Supreme Court finds history is a matter of opinions

This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.

In doing so, however, the court has drawn criticism from some historians and legal experts who say the justices' readings of history were less than scholarly. And the justices sometimes disagreed sharply on the historical record, demonstrating that divining the original meaning of the Constitution is no small matter.

The term's two most important opinions -- on the reach of habeas corpus in the war on terrorism, and on the meaning of the 2nd Amendment -- trace the origins of the right to go to court and the right to "keep and bear arms" to 17th century England and Colonial America.

All nine justices agreed that the original understanding was crucial. However, they split 5 to 4 in both cases on how to interpret the history.

In the case of Guantanamo Bay detainees, Justice Anthony M. Kennedy cited early English cases in which Spanish sailors and African slaves petitioned a judge for their freedom. This suggests that the right of habeas corpus was not limited to English subjects, he said. Rather, when this right was written into the U.S. Constitution in 1787, it set a basic principle of liberty that protects people who are captured and held by the government, including the foreign prisoners held at Guantanamo, Kennedy said in Boumediene vs. Bush.

Wrong, Justice Antonin Scalia wrote in dissent. He said English history showed that the writ of habeas corpus was limited to sovereign English territory. It certainly did not extend to prisoners captured abroad by soldiers or sailors, he said.

In the other case, District of Columbia vs. Heller, the justices wrote about 150 pages of opinion and dissent on whether the 2nd Amendment was intended to preserve a "well-regulated militia" in each state or to protect an individual's right to keep a gun for self-defense.