It is rare that I find myself in agreement with prolific jurisprudential gadfly Judge Richard Posner, though he is always interesting and provocative. Indeed, he is so prolific that I speculate there really is no one Richard Posner, but a basement full of Posner scholar-elves who, like Santa’s helpers, grind out countless articles, reviews, decisions and books. But to my surprise, I do agree with his interesting critique, in a recent issue of The New Republic, of the United States Supreme Court’s decision in District of Columbia v. Heller, the recent gun control case.
The Second Amendment states that “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Before Heller, the Supreme Court ruled four times — in 1875, 1886, 1894 and 1939 — that the amendment restricts the national government’s powers over state militias, but does not assure people the personal right to bear arms. Even conservative jurists — the late Justices Lewis Powell and Warren Burger, for example — have said that the Second Amendment does not ban reasonable gun controls nor assure an individual right to bear arms. Despite those precedents, and the escalation of gun violence to shocking levels, gun advocates have effectively fought against all controls. Politicians who support modest, rational gun controls, which the majority of the public approves, have suffered for their advocacy.
The Heller case, a split decision along liberal-conservative lines, ruled that the Second Amendment forbade a ban on handgun ownership. However, as Judge Posner noted, “The other restrictions that a government might want to impose are up for grabs,” and precisely what restrictions short of a ban will be constitutionally acceptable are unclear — weapons of mass destruction, use by convicts, or children, or the mentally incompetent? The Heller majority did not, in its own words, authorize “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Expect much litigation refining the specifications of the Supreme Court’s rule in Heller.
There should be room for different specifications about gun controls. Hunting rifles differ from handguns, to note the obvious. Guns on shooting ranges pose different requirements from guns in schools. As Judge Posner also noted, “A uniform rule is neither necessary nor appropriate.” Under our federal system the states are encouraged to be social engineers on divisive issues; what works in Idaho might not in New Jersey. Thus, a uniform national policy on gun usage “may be premature,” to use the judge’s phrase.
Judge Posner analyzed various recent decisions to demonstrate that the divisions in Heller are political — more so than jurisprudential — and calls Justice Antonin Scalia’s rationale “faux originalism” and explains why. Hopefully, with shifting political forces that are expected in November, a safe and sane policy of domestic disarmament will evolve.