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The Value of Proceeding Cautiously

[ 59 ] December 17, 2012 |

Garrett Epps on the recent 7CA opinion striking down Illinois’s ban on concealed carry:

Posner’s opinon in the new case Moore v. Madigan contains the most bizarre line I have read in a federal-court opinion since, well, ever. The issue is whether the Supreme Court’s two recent gun-rights decisions, Heller v. District of Columbia and McDonald v. City of Chicago, create a right to armed self-defense outside the home. The Court’s opinions said they did not; but to Posner, that’s silly: “To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right — a right to kill a houseguest who, in a fit of aesthetic fury, tries to slash your copy of Norman Rockwell’s painting, Santa with Elves.

People may be dying in the streets, but to Posner, the case is a chance for shtick.


Justice Scalia made his own set of headlines this week, mocking and belittling gay rights to a Princeton audience. Posner has recently made a specialty of needling Scalia, but the truth is the two judges are more alike than either would like to admit. And both of them might consider whether it’s a good time to dial it back a bit.

On one level, I think this is a little unfair to Posner. Whatever motivated his (tasteless) joke, it’s not that he’s a gun nut indifferent to the consequences of striking down gun control legislation. Posner has been openly contemptuous of the the Supreme Court’s holding in Heller.

Having said that, Posner’s opinion is a little odd. Had the Supreme Court in Heller merely declared an individual right to bear arms in self-defense without detailing the potential limitations, it would be hard to object to Posner’s application of the precedent. On its face, Posner’s argument isn’t illogical: if the 2nd Amendment creates an individual right to self-defense, this would seem to apply outside the home even if the facts of Heller were about maintaining a weapon in one’s residence.

The problem is, Scalia’s opinion did address this question directly, and at a minimum strongly implied that the 2nd Amendment did not proscribe concealed carry laws:

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Given that to Scalia originalism provided the justification for finding an individual right to bear arms, this settles the question for me. My reading of Posner’s opinion — since we know his application of Heller isn’t the product of a personal belief that the Second Amendment should confer an individual right to bear arms — is that it’s another round in his ongoing battle with Scalia. Scalia might disown the implications of his opinion, Posner seems to be saying, but lower courts are now obligated to follow his holding to its radical conclusions. If you don’t like it, overrule Heller.

I can sort of understand the impulse, but I think Epps is right that it’s the wrong course to take. Reductio ad absurdum is fine for a law review article, but less so for an circuit court. If the Supreme Court wants to hold that concealed carry laws are unconstitutional, it should go first. Especially since the Supreme Court can just refuse to hear appeals, lower courts shouldn’t apply Heller more broadly than necessary, it in particular shouldn’t cite it to strike down laws that the Court specifically implied are constitutional.


Comments (59)

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  1. Pithlord says:

    Generally agree with this. Posner, like Scalia, has way too much of the performance artist in him.
    OTOH, he knew this was a dissent.

  2. Murc says:

    I kind of respect Posner for being willing to give the finger to the high court in general and Scalia in particular, but this kind of brinksmanship seems a little dangerous.

    I believe the Supremes are fully capable of going “No, fuck YOU” and simply letting radical expansions of their more absurd rulings stand. This sort of behavior is more appropriate in academic catfights where the only stakes are who gets snubbed at the Christmas Party, not where sweeping policy changes are at stake.

    • L2P says:

      The benefit is creating a conflict in the circuits. Posner knows that the 9th Circuit is probably going to uphold a very similar statute at some point (I wouldn’t be surprised if he knows about a case percolating up the system).

      Once there’s a conflict, it’s hard for the Court to ignore it. If they do, there’s essentially no law on the books.

    • Scott Lemieux says:

      I believe the Supremes are fully capable of going “No, fuck YOU” and simply letting radical expansions of their more absurd rulings stand.

      Right. And other circuits can note that eventheconservative Richard Posner, the nation’s Most Respected Appellate Jurist, believes that Heller should be read broadly.

  3. Joe says:

    The opinion cited another opinion upholding a NY law that limited carry outside the home. Posner in effect argued the law in Illinois was too broad & gave the state (or locale in question) time to write a new law. The schtick quality is easily sneered at but given his criticism of Heller generally, this isn’t the best place to cite.

    Heller suggests the right in question is not limited to the home so the Posner opinion is reasonable on some level. Even if concealed carry can be limited or banned, the “right to armed self-defense” can be protected by open carry. In fact, traditionally, some places supported that, concealing the weapon deemed dangerous.

    • Scott Lemieux says:

      Heller suggests the right in question is not limited to the home

      As I said, I agree with this as far as it goes; I think Epps overreaches on this point. But the fact that concealed carry is listed as one category of laws Scalia specifically implied was a reasonable limitation shouldn’t be ignored.

      • Joe says:

        Yes. Heller goes out of its way to allow regulations though ironically you wouldn’t know it from some gun critics.

      • But how does Posner ignore that? The opinion is completely consistent with prohibitions on concealed carry.

        The Illinois law banned carrying a gun outside the home. This conflicts with Heller, for the reasons you cite. So the opinion strikes the Illinois law down. But it doesn’t go beyond that. It allows for restrictions on carrying a gun outside the home, including mandating or prohibiting open carry, concealed carry, high requirements for permits, etc.

        It’s even pretty explicit about allowing bans on concealed carry.

        And a state may be able to require “open carry”—that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626; James Bishop, Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L. Rev. 907, 920–21 (2012).

        Your criticism doesn’t seem to be based on anything.

        • Scott Lemieux says:

          It’s not inconsistent with Heller, I agree. But my point is that the law was a type of regulation that Heller didn’t explicitly rule out, either, so the better course would be to uphold the law and let the Supreme Court expand Heller if it wants.

  4. Joe says:

    Let me add that I think there is some right to self defense and by gun at that but the idea the 2A is primarily about the right to self defense in the home is just plain dumb to me. MAYBE, and I think Prof. Akhil Amar did some good work here, by the time of the 14A, that was what many understood it to mean, but the 2A in 1791 was surely not about that primarily even if the RKBA was partially about that. This is why people like Sandy Levinson can accept the result of Heller and sneer at the reasoning.

    • DrDick says:

      The wording of the amendment strongly indicates that is is right to defense against government tyranny and not against private violence.

      • Joe says:

        Yes. OTOH, by the time of the 14A, private violence (and state refusal to address it) was more an immediate concern. In fact, even McDonald v. Chicago notes the changing views of what the RKBA was concerned about.

        All the same, the concern of the 2A included the dangers of a standing army (query what they would have thought about modern day police) being the only means to protect society. This would include against private violence, so I think it’s a factor.

      • Murc says:

        The amendment is simply worded badly. Full stop. The militia clause either needs to not be there, or to be a hell of a lot clearer than it is.

        Frankly, that clause has always surprised me. The Constitution doesn’t include a lot of policy prescriptions or internal justifications. Take Amendment 1, for example. It doesn’t include a vague half-sentence explaining why freedom of speech, religions, assembly, and petition are important. They just lay the shit out and move on.

        • Richard says:

          Absolutely correct. The introductory clause with a statement of purpose is unique in the constitution. And its impossible, from looking at the legislative history, to determine why it was added there and nowhere else. Bad drafting.

          • UberMitch says:

            An introductory clause with a statement of purpose is not quite unique:

            To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

            • Richard says:

              Good find. So there’s two introductory clauses with a statement of purpose. Still no clue why it was made a part of the second amendment.

              • John says:

                There’s also the preamble, which seems like a statement of purpose to me:

                We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

                The government is instituted for those specific purposes, so that’s a statement of purpose, right?

                Also, Article 1, Section 8:

                The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States

                The purpose of the taxes collected is “to pay the debts and provide for the common defence and general welfare of the United States.”

                • Richard says:

                  But the preamble isnt part of the Constitution (at least the enforceable part of the document). And the statement of purpose of Article 1, Section 8 is very general and hardly limits the preceding section. The wording of the Second Amendment is just very curious. If they meant to create an individual right, why include it? If they meant to not have an individual right but only restrictions on the ability to curb a militia, then just say so instead of having very general wording about the right to bear arms. There’s good reason why there has been a long debate on this – its a very poorly worded provision.

              • Joe says:

                No clue? The framers were concerned with a particular thing and framed the amendment that way for that very reason.

                So why only there? We can guess though I’m not sure how important it is. Take the 1A. It listed five things. It would have been unwieldy to have introductory clauses for each. Ditto in the criminal justice amendments with many parts to them.

                The 4A is also carefully drafted. The 9A and 10A are basically statements of principle too.

                • Murc says:

                  It would have been unwieldy to have introductory clauses for each.

                  Yeah, but it wouldn’t have been unwieldy to say something like ‘The following freedoms being necessary for the security of a free people…’ and then listed everything in 1A.

                  And then we’d have people arguing speech is only free when it advances security, because that’s a stupid-ass way to word a legal document.

                • Richard says:

                  I dont think a reading of the historical record bears that out. I’ve read the books on that support the individual right theory and the ones that support only the militia right theory and find strong historical arguments on both sides with no easy resolution. But in reading the legislative history – that is the Federalist Papers and the documents regarding the debate about the Bill of Rights – I cant find anything that is even close to dispositive and nothing to indicate why they included a statement of purpose here and not for the First and Fourth Amendments.

      • Bill Murray says:

        I would say a reading of supporting national/state defense is more appropros than of fighting against government tyranny (excepting as how government tyranny relates to a standing army)

  5. pc says:

    I believe the statutes banning concealed carry that were cited approvingly in Heller were in states that allowed open carry. I read Heller’s holding as requiring a right to carry outside the home, but that it would be up to the State to determine if it should be concealed or open. The Illinois law struck down in Moore allowed neither.

  6. DrDick says:

    If we are going to look at 19th century jurisprudence, then we need to bear in mind that many towns and cities had bans on carrying weapons, openly or concealed, inside the city limits. This included most of the most famous cattle towns in the West. The notion that private citizens should be able to walk around town armed is largely a 20th century invention.

    • L2P says:

      Probably not, as I understand Scalia’s twisted mind to work.

      I believe Scalia would argue that how people interpreted the 2nd Amendment in the mid-1800s and later isn’t what the “Founders” thought. Really, it’s no different than how Justice Brennan interpreted the 2nd Amendment. It’s not like any of those guys picked up a quill pen and wrote any of the Articles, write? Or at least voted on the thing (votes by poor people, women, and non-white people not included, of course.)

      Scalia seems to only care what people living in the 1780’s thought the 2nd Amendment meant. Unless, of course, those people weren’t thinking things helpful to conservative causes, in which case Scalia doesn’t even care what people in the 1780’s thought.

  7. daveNYC says:

    So if the 2A gets tied in to the right to self defense, then wouldn’t the end result of such stupidity be Florida style Stand Your Ground laws being a thing everywhere?

    • Murc says:

      wouldn’t the end result of such stupidity be Florida style Stand Your Ground laws being a thing everywhere?

      Not necessarily. A Constitutional right to self-defense is fully compatible with a duty to retreat, in the same way that a Constitutional right to free speech is fully compatible with people not being allowed to yell ‘fire!’ in a crowded theater.

    • Warren Terra says:

      Yeah, that was my response. The so-called “Stand Your Ground” laws are bloodthirsty idiocy, and this sure read to me like an attempt to make them a Constitutional Right.

      • Murc says:

        I wouldn’t say they’re bloodthirsty idiocy, even if they’re bad policy.

        ‘If you’re someplace you have a legal right to be, you have the right to defend your presence there and not retreat before threats’ isn’t an insane position to take. What is crazy are laws that say if you so much as FEEL threatened you can blow someone away and get off scot-free, because that legal standard is insane and encourages violence.

        I’d be okay with laws along the lines of ‘you can defend yourself, but if you pull a gun on an unarmed kid who never touched you and blow him away, you’re going to prison for life regardless of how he made you ‘feel.” Sadly, the stand your ground folks all think they’re going to be the next great vigilante hero, rather than being concerned about what circumstances might REALISTICALLY warrant the use of force.

        • L2P says:

          It’s interesting that we’re re-living arguments that people had centuries ago. The “duty to retreat” exists because a bunch of judges thought it WOULD be bloody idiocy to let somebody just stand their ground if they felt threatened because you end up with a lot more dead people, a lot more arguing about who felt scared by what, and a lot of inconsistent trials where one guy gets off and another one goes to jail for doing exactly the same thing.

          Every now and then Burkean conservatism starts to make some goddamn sense, and then I get really, really scared.

  8. Semanticleo says:

    Sorry to be ot, but this seems mildly important….

    A connection between Newtown and Aurora triggermen…Libor…wtf?

    MK/Ultra Monarch? LIBOR? General Electric? I must be crazy with these theories.

    “The father of Newtown Connecticut school shooter Adam Lanza is Peter Lanza who is a VP and Tax Director at GE Financial. The father of Aurora Colorado movie theater shooter James Holmes is Robert Holmes, the lead scientist for the credit score company FICO. Both men were to testify before the US Sentate in the ongoing LIBOR scandal. The London Interbank Offered Rate, known as Libor, is the average interest rate at which banks can borrow from each other. 16 international banks have been implicated in this ongoing scandal, accused of rigging contracts worth trillions of dollars. HSBC has already been fined $1.9 billion and three of their low level traders arrested.”

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