Judge Richard Posner of the 7th Circuit wasn’t impressed with Justice Antonin Scalia’s “originalist” interpretation of the Second Amendment in D.C. v. Heller. So he decided to publish an article in The New Republic to explain why.
At the end of June, the Supreme Court, in a case called District of Columbia v. Heller, invalidated the District’s ban on the private ownership of pistols. It did so in the name of the Second Amendment to the Constitution. The decision was the most noteworthy of the Court’s recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.
The majority opinion, by Justice Antonin Scalia, concluded that the original, and therefore the authoritative, meaning of the Second Amendment is that Americans are entitled to possess pistols (and perhaps other weapons) for the defense of their homes. Scalia’s entire analysis rests on this interpretive method, which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions. The irony is that the “originalist” method would have yielded the opposite result.
Bear in mind, this isn’t some lawprof taking cheap potshots at Scalia’s opinion, but a circuit judge who says the Supreme Court “exercises a freewheeling discretion strongly flavored with ideology” in interpreting the Constitution. Guess who’s not getting invited to the party?
It’s past the point of mattering whether Judge Posner is right. The case is decided, even though the decision has the teeth of a wet hen. But it’s a fascinating argument, made even more so by Posner’s willingness to buck the big court so openly and strongly.
But Judge Posner argues a more expansive point.
The Framers of the Bill of Rights could not have been thinking of the crime problem in the large crime-ridden metropolises of twenty-first-century America, and it is unlikely that they intended to freeze American government two centuries hence at their eighteenth-century level of understanding. Because of the difficulty of amending the Constitution, it has from the beginning been loosely construed so as not to become a straitjacket or a suicide pact. The older the constitutional provision and the more the environment has changed since enactment, the more appropriate is the method of loose construction.
Essentially, Posner contends that certain provisions of the Constitution are antiquated as written, and the push to apply them based upon originalist thought misses the mark. He argues that both sides of the ideological equation use loose construction, but to serve the opposing ends. He concludes that it’s all a pattern of unprincipled decision-making.
I cannot discern any principles in the pattern of the Supreme Court’s constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides.
So the debate continues.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I was wondering where you got the description that the Heller decisiion has “teeth like a wet hen”? Is that sort of like a gun without bullets? Or, a knife without metal, or a lion without a roar, or a decision without without sufficient reasoning? I like these descriptive terms — where did you get yours — is there a book or internet site I can read?
Terms like “liberal” and “conservative” are inadequate to fully describe anyone or any judge. I have known people or judges that could be considered “liberal” or “conservative” that will take a unique position on certain given issues. Personally, I believe in the second amendment. I believe people have a right to lawfully own a firearm. The Heller decision involving a capitol security officer attempting to obtain a permit for his own person handgun seems like common sense to me. I also believe that people who live in “crime” ridden neighborhoods and people that are victims of crimes should have the right to self defense. Self defense is a basic human instinct. Of course, reasonable and logical people, can and do disagree about some very important issues. Even father and son, mother and daughter, friends, Supreme Court Jurists, and everyday ordinary people can disagree. Some people have lived their entire lives around firearms and love to hunt, target practice, collect, and/or have legitimate reasons for owning a firearm and are not criminals. Many, many businessmen carry firearms because they are well aware of the need for self defense. Whether you base you decision on some historical interpretation of the Constitution or some social science arguments or perhaps logical and reasonable arguments, ultimately, it just seems like common sense to me.
Yours in the Defense of Fellow Human Beings,
Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
Quoting from Judge Posner’s article on the Supreme Court’s Heller decision on the Second Amendment:
I agree!
In the era of the Framers, the phrases “capable of bearing arms” and “able to bear arms” were in common use. They were synonymous with “capable of armed military service.” The republican ideal was for all men capable of bearing arms to serve as militiamen, and the right of the people of the individual states to a continuation of such a mutual security was the object of the Second Amendment.
The idea that the Second Amendment was written to keep the federal government from infringing a right to bear arms by individuals other than those considered capable of bearing arms is really far-fetched. If an individual wasn’t capable of bearing arms, protecting his “right” to do so wouldn’t make sense.
George Washington, dissatisfied with the quality of New Jersey’s militia performance in 1777, urged that state’s governor to pass what he called a “well regulated Militia Law,” writing this:
“What I would wish to have particularly insisted upon, in the New Law, should be, that every Man, capable of bearing Arms should be obliged to turn out…”
For Washington, bearing arms was a matter of militia service, not of individual self-defense, hunting, or shooting holes in traffic signs.
Regardless of which side of the issue someone is on, Judge Posner’s article is amazing in its strength. There is absolutely nothing held back.
I hope everyone reads it. Judge Posner is no gutless wonder.
Wet or dry, hen’s don’t have teeth so a decision that is like a wet hen without teeth has me confused. But here are some more chicken type sayings:
http://www.chickenvideo.com/sayings.html
At one time maybe hen’s did have teeth, maybe?
He’s a good writer — no Kozinksi, but few are — and it’s a strongly-written piece, and, sure, he doesn’t hold back.
Nor, for that matter, did Orin Kerr in the best comment I’ve read on the Posner piece:
“Posner is ridiculously wrong, of course: The fundamental truth of constitutional law is that Justices who agree with me are divining the true Constitution, while the rest are political hacks twisting the document to suit their policy preferences. Thus, my side is always principled.”
(One may argue that Kerr is, perhaps, being a tad arch.)
That said, other than the obvious stuff that others have commented on, one thing struck me as an awfully awkward moment in the Posner piece:
“Because of the difficulty of amending the Constitution, it has from the beginning been loosely construed so as not to become a straitjacket or a suicide pact.”
Hmmm… I can’t be the only person to have noticed the tie to the remarkably wrongheaded dissent of Justice Jackson in Terminiello:
“There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
One man’s liberty is another’s fear of a suicide pact; one man’s fish is another’s poisson.
I loved that quote from Orin, and even cited it here before I had read Judge Posner’s article. As good as Posner may be, Orin trumped him with that one. While it may be quite “arch”, it contains an awful truth.
Still, Posner’s piece is worthy of a good read. Unfortunately, it hasn’t gotten a lot of play here. Some of the more theoretical or “professorial” type posts don’t get nearly as much interest in some my more pedestrian stuff. Sigh.
That’s a feature, not a bug — IMHO, and all; gives more play to what you think of as pedestrian, but feeds some interests in what at least one of your readers can’t slake as easily elsewhere. (And, as long as I’m writing, if you’re ever in the mood to take requests, I know that I’d love to read more about the nuts and bolts stuff.)
Besides — and I know it’s an exaggeration, but it’s too close to the truth — other than you, Balko, Windy and occasionally me and my crowd, who’s paying attention to isolated”>http://www.google.com/search?hl=en&safe=off&rlz=1B3GGGL_enUS286US286&q=%22isolated+incidents%22+bad+cop+stuff&btnG=Search&aq=f>isolated incidents?
Another Judge Rips Scalia’s Heller Opinion
First it was 7th Circuit Judge Richard Posner, whose New Republic article challenged the legitimacy of the majority decision in D.C. v. Heller.
Another Judge Rips Scalia’s Heller Opinion
First it was 7th Circuit Judge Richard Posner, whose New Republic article challenged the legitimacy of the majority decision in D.C. v. Heller.
Another Judge Rips Scalia’s Heller Opinion
First it was 7th Circuit Judge Richard Posner, whose New Republic article challenged the legitimacy of the majority decision in D.C. v. Heller. Now, Adam Liptak in the New York Times brings us another judge on the warpath against this wild-eyed activist, Antonin Scalia. Now, it’s J. Harvie Wilkinson III of the 4th Circuit, who has written an article to be published in the Virginia Law Review.
Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle.
Another Judge Rips Scalia’s Heller Opinion
First it was 7th Circuit Judge Richard Posner, whose New Republic article challenged the legitimacy of the majority decision in D.C. v. Heller.