Wednesday, June 18, 2014

Judge Richard Posner on Scalia's dismissal of the first clause in the Heller decision

It's nice when the leading CONSERVATIVE jurist backs up my opinion.
Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.” The preamble implies that the Second Amendment (which creates a right “to keep and bear arms”) is not about personal self-defense, but about forbidding the federal government to disarm state militias. Contra Story, Justice Scalia treated the preamble dismissively in his opinion in Heller.
Actually, the proeme should act as a built in sunset clause.  It states the purpose for which the law was written, and once that purpose is no longer necessary: neither is the law.

In other words, those who would ask that we ignore it are tacitly admitting that the Second Amendment has no place in 21st Century America.

And if we are going to get into it, Aymette v State, 2 Humphreys 154 (Tenn. 1840), also contradicts what Scalia claims, which is " Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons.":
 We think there is a manifest distinction.  In the nature of things, if they were not allowed to bear arms openly, they could not bear them in their defence of the state at all.  To bear arms in defence of the state is to employ them in war, as arms are usually employed by civilized nations.  The arms, consisting of swords, muskets, rifles, etc., must necessarily be borne openly; so that a prohibition to bear them openly would be a denial of the right altogether.  And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the state, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence...
 ...To make this view of the case still more clear, we may remark that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides "that no citizen of this state shall be compelled to bear arms provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms.  A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.  So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
If the authorities are not helpful to his argument, it is because they contradict that argument.

Or did Scalia not bother actually reading Aymette and hope that no one else would and call him on it?

As is the case with most "pro-gun" arguments, Scalia's opinion in the Heller case does not withstand close scrutiny.


  1. "They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic."

    Fortunately, Judge Posner seems able to separate his personal feelings from his professional ones. Posner voted to overturn Moore vs. Madigan which took the state of Illinois from a no issue state to a shall issue state. And in fact Heller was even cited in the opinion which Posner himself seems to have written.

    "Judge Posner, writing for the majority, notes that while the Heller and McDonald decisions did say that the need for self-defense is most acute inside the home, that doesn't mean it is not also acute outside the home. "Confrontations are not limited to the home".[4] The distinct use of the words "keep" and "bear" in the text of the Second Amendment, the Court reasoned, implied the right to carry outside one's home, as in historical context, the meaning of the word did not limit it to the home and it would be awkward to attempt to assign that connotation to documents of the time period."

    "The decision also rejected the argument that the Illinois laws had an effect on gun crime, noting that Chicago's criminal element was undeterred by the ban on handguns overturned by McDonald. Citing the study, "Firearms Laws and the Reduction of Violence: A Systematic Review", and several other published studies, the Court found that evidence did not support a link between gun regulations and crime rates in either direction."

  2. Scalia can hold any opinion on any issue he wants. His mistake is on insisting the meaning intended in 1789 cannot change. Not to mention he just could be wrong about his interpretation of the original intent anyways. If he is such a scholar, how can he just ignore what Madison said about the second amendment, at the time, which clearly was referring to the health and needs of a militia, not individuals.

    1. I'd take it a step further. If it was about the militia then it's meaningless today. Simple.