Thursday, August 21, 2008

More Heller-whining

Article by Richard Posner, a federal appellate judge on the Seventh Circuit Court of Appeals (based in Chicago), on the Supreme Court's Heller decision. Here's a sample:
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. It 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. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.

The statements that the majority opinion cited had little traction before Heller. For more than two centuries, the "right" to private possession of guns, supposedly created by the Second Amendment, had lain dormant. Constitutional rights often lie dormant, spectral subjects of theoretical speculation, until some change in the social environment creates a demand for their vivification and enforcement. But nothing has changed in the social environment to justify giving the Second Amendment a new life discontinuous with its old one: a new wine in a decidedly old wineskin. There is no greater urgency about allowing people to possess guns for self-defense or defense of property today than there was thirty years ago, when the prevalence of violent crime was greater, or for that matter one hundred years ago. Only the membership of the Supreme Court has changed.

Read the article here. Judge Posner is a well-respected jurist, but I think he gets it totally wrong in this case. Indeed, some of the 20+ commenters do a good job of ripping the Judge's arguments to shreds.

Judge Posner's tired and unoriginal arguments reflect the anti-gunners' disingenuous (and losing) arguments against an individual Second Amendment right: the Second Amendment doesn't apply to "the people" but only to the National Guard, the prefatory clause limits the operative clause, the right (even if individual) is different in different parts of the country, blah, blah, blah. So disappointing.

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