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Posner v. Heller


Richard Posner has an interesting article — essentially an application of his recent HLR Foreword — critiquing the Supreme Court’s decision in Heller, the D.C. gun control case. It’s a useful corrective to the glib certainty of the majority opinion and its strongest supporters. And yet, it’s frustrating in its own right.

One problem is his apparent assumption that until very recently conservatives had a principled opposition to an activist judiciary, as opposed to an opposition to the substantive decisions of the Warren and early Burger Courts: “The idea behind the decision–it is not articulated, of course, and perhaps not even consciously held–may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives’ turn.” Given that there’s never been a post-Civil War court with a conservative median vote that didn’t engage in significant activism with highly contestable constitutional moorings, the basis for this is unclear. Well over a century after the Civil Rights Cases and Allgeyer and nearly a century after Hammer v. Dagenhart, it’s strange indeed to view reactionary judicial activism as a 21st century phenomenon. Also odd is the absence from Posner’s account of a rather notable recent example of unprincipled “judicial activism” far, far more egregious than Heller: Bush v. Gore. Presumably, this is because Posner wrote an entire book using pragmatism and what can only be called law-office democratic theory to defend the Court’s decision. Posner is entitled to change his mind, of course, but when he complains the he “cannot discern any principles in the pattern of the Supreme Court’s constitutional interpretations” one would think this would compel an acknowledgment of his own strong support for a “loose construction” that reached congenial results for conservatives.

This brings us to another problem, which is that rather than correctly noting that the legal materials surrounding the Second Amendment are considerably more complex than Scalia can allow and admit to multiple reasonable interpretations, he simply asserts without anything like the necessary evidence that Scalia is wrong. (“The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.”) This goes too far. His analysis is at one point even contradictory: he can’t seem to decide whether Scalia’s position is nonsense because “[i]t is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias’ effectiveness,” or because “the ratifiers of the amendment probably did think that the right of militiamen to keep and bear arms entitled them to keep their weapons in their homes.” Which is it? His overreaching certainty extends to other cases : for example , he claims that the contemporary doctrine that the Bill of Rights is “incorporated” against the states was “decided in the teeth of the language of the Fourteenth Amendment.” It is true that the Fourteenth Amendment repeating the language of the due process clause of the Fifth is a point against the incorporation theory, but it is hardly dispositive. Proponents of incorporation can point to the other side’s own textual puzzles — why did the framers of the 14th Amendment bother to include a privileges and immunities clause that allegedly just re-affirmed some minor rights already recognized prior to the Civil War? — and cite important historical evidence such as the fact that the floor manager of the Amendment expected it to incorporate the Bill of Rights. One can disagree with Black’s arguments, but to claim that they contradict the text of the Fourteenth Amendment is silly.

Posner is right that constitutional interpretation in interesting cases inevitably involves a significant amount of judicial discretion, although I don’t think that calls for “judicial modesty” have much point; as long as activist judicial review serves the interests of the legislators who make it possible, it will continue, and will come from judges of all ideological persuasions. But Posner’s own unfounded certainties about the meaning of broad, ambiguous constitutional provisions tend to undermine his own argument.

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  • tom

    I like Posner, but not always his arguments. He is a very entertaining speaker, and far more literate than the Scalia-Thomas gang. Sometimes, as in his arguments against sex discrimination, he really pisses off the wingnuts. As you point out, he is always certain, but not always right (that the Supreme’s 2000 decision was right because bush would be better for the economy was unbelievable at the time, and scandalous in hindsight).

  • howard

    tom, i think that’s a good summary of posner, and the reason i was posting was to take exception to the notion that “liberal” judges (earl warren, world-famous “liberal,” of course)”have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning.”
    unlike some of our hosts, i’m not a constitutional scholar (or even a lawyer), but i’d like to see the list of decisions that is “beyond any reasonable construal of original meaning.”
    one may not like the construing, but beyond “reasonable?” to what is he referring?

  • soundgardener

    Is Congress contemplating eventual “judicial activism” when it enacts some of the obviously unconstitutional laws we have recently seen. Arlen Specter famously said he thought the MCA was unconstitutional right before he cast his vote in favor of passing it. I wonder if these legislators secretly hope the judiciary will save the country from some of the more reactionary laws they pass while they still get credit from the voters for doing something about [insert hot-button “problem” here].

  • Joe

    “The idea behind the decision–it is not articulated, of course, and perhaps not even consciously held–may simply be that turnabout is fair play.”
    Or, simply, that Scalia et. al. thinks the 2A DOES protect individual gun ownership. Likewise, Kennedy takes part in the activism all the time, so that doesn’t quite work for him.
    I support the result but the reasoning surely is open to debate. Given the summary here, I sorta don’t think Posner is the best place to go, since you point to several core problems with his analysis, that goes to the heart of the matter.
    Anyway, Heller on its own isn’t really the problem. Any number of Scalia opinions can be targeted for similar reasons. It’s a shame such an acceptable ruling had to come down in such a fashion.

  • Joe–to be clear, I also would have voted with the majority in Heller (or, to be precise, at least concurred in the judgment.) My issue is with people who say that it’s an easy case, not with the decision itself.

  • Jenavir

    My fiery hatred of law-and-economics leads me to have a strong visceral dislike of Posner and all his works. To combat this, I try to read rational reviews of what he writes, so thank you for this post.

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