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The Value of Proceeding Cautiously


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.

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