What does the Scalia versus Posner fight mean to the 2A?

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KyJim

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There's a decidedly uncivil discourse going on between Supreme Court Justice Scalia and 7th Circuit Court Judge Richard Posner. Both jurists can broadly be considered "conservative" though that means different things to different people. The problem escalated when Scalia co-authored a treatise with Bryan Garmer on statutory construction (Garmer is the editor of Black's Law Dictionary and is a noted writer on legal writing). It essentially advanced Scalia's theory of legal textualism at the expense of legislative history. Textualism simply means to look at the meaning of the words and the grammatical structure of sentences to determine what a statute means. Scalia likes to look to the original meaning of words and sentences. Heller is an excellent example.

Anyway, Judge Posner harshly criticized Scalia's textualism in a review of the treatise in article entitled "The Incoherence of Antonin Scalia" in The New Republic. Posner writes in that article, "Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing." Posner argues that "most professional historians reject the historical analysis in Scalia’s opinion" and accuses Scalia of hypocrisy by extolling the virtue of a preamble of a statute to divine intent while ignoring the preamble to the Second Amendment, "A well regulated Militia being necessary to the security of a free State.” Posner states, " The preamble implies that the Second Amendment . . . is not about personal self-defense, but about forbidding the federal government to disarm state militias." The article is not just about Heller, but that is the perhaps the most interesting portion for most members of this forum.

Scalia and co-author Garmer both responded publicly to Posner's blunt criticism. Garmer accused Posner of “tendentious hostility.” http://www.abajournal.com/news/arti...us_hostility_in_review_by_posner_who_denies_/. Garmer rejected Posner's premise that the treatise he and Scalia co-authored was a defense of Heller:
Garner also takes issue with a statement in Posner’s review claiming their book is a response to criticism of Scalia's Heller opinion. “What?” Garner writes. “I spent three-and-a-half years immersing myself in the literature of statutory interpretation, scouring hundreds of books and a thousand-plus articles to write a full-length treatise, merely to help my coauthor respond to criticism about one case? What a breathtakingly and self-evidently farcical statement.”
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Ibid.

Scalia was even more blunt when he responded to Posner's assertions that he used legislative history in Heller, "'To say that I used legislative history is simply, to put it bluntly, a lie,' Scalia told Reuters." http://www.abajournal.com/news/article/scalia_weighs_in_on_a_controversial_book_review. Posner's more circumspect reply is at http://www.abajournal.com/news/arti..._scalias_book_and_the_definition_of_legislati.

My question is what does all this mean in regards to Second Amendment cases in the 7th Circuit?
 
As long as neither of them considers the Constitution to be a "living document" that should be interpreted according to what Europe thinks of it today, I see no problem. Let them duke it out.

Personally, I think the correct approach is a mix of "textualism" (i.e. a law says what it says) and original intent. That is, I believe that laws should be written so that those of us who are supposed to comply with them (remember, "Ignorance of the law is no excuse") can read the law and figure out what we need to do to be in compliance. But ... I also think that very old laws (and 200+ years is old) need to be read based on what the words and context meant at the time the law was written. Arguing about the militia clause in the 2nd Amendment is stupid (IMHO). Grammatically, it is now and was at the time ancillary to the core of the right. Posner doesn't seem to "get" that -- or else he's pretending not to just to pick a fight. Historically, it makes no sense to argue that the RKBA was at that time intended to prevent disarming the militia, because at the time the militia was every able-bodied male. So by Posner arguing that the original intent was to prevent disarming the militia, he is in fact arguing that the original intent was to not disarm the populace.

I can live with that.
 
Historically, it makes no sense to argue that the RKBA was at that time intended to prevent disarming the militia, because at the time the militia was every able-bodied male. So by Posner arguing that the original intent was to prevent disarming the militia, he is in fact arguing that the original intent was to not disarm the populace.

I can live with that.
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But the states can define who is in the militia (say 18 to 50 years of age) and regulate it. If the 2A is limited to that, it would mean the states would be free to disarm their citizens even if the federal government could not. That seems to be the Posner conclusion and one has to wonder how that will effect any decisions he might make.
 
KyJim said:
But the states can define who is in the militia (say 18 to 50 years of age) and regulate it. If the 2A is limited to that, it would mean the states would be free to disarm their citizens even if the federal government could not. That seems to be the Posner conclusion and one has to wonder how that will effect any decisions he might make
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.

Even if that were true in theory, with the modern doctrine of Incorporation, it wouldn't be possible.
 
Technically, who is the militia is already defined in Federal law, and it doesn't include me because I'm over the age of 45. But that's a law that was enacted after the 2nd Amendment was written, which is why pure "textualism" doesn't work unless the "pure" text is (as it should be) read in the CONtext of the time in which it was written. Otherwise, historical and societal changes may significantly affect what appears to be a textual interpretation of a law.

There's also the fact that, as a veteran, I swore an oath to protect and defend the Constitution of the United States. Nobody un-swore me from that oath when I came back from Vietnam and was released from active duty, nor did they un-swear me from it a few years later when my reserve commitment was finished. So irrespective of the Militia Act, I respectfully submit that I am still a part of the militia by virtue of prior service. (Dunno how far that might go legally, but that's my story and I'm stickin' to it.)
 
KyJim said:
Posner argues that "most professional historians reject the historical analysis in Scalia’s opinion" and accuses Scalia of hypocrisy by extolling the virtue of a preamble of a statute to divine intent while ignoring the preamble to the Second Amendment, "A well regulated Militia being necessary to the security of a free State.” Posner states, " The preamble implies that the Second Amendment . . . is not about personal self-defense, but about forbidding the federal government to disarm state militias."
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At a grammatical level, I don't see how Posner's point survives scrutiny. While a curious construction, like the latin supine mirabile dictu, there is no because, since or even a whereas in it. Posner's inference that the amendment is "...about forbidding the federal government to disarm state militias" is his own inference, not an implication of the language of the amendment itself.

Certainly, Sup Ct jurisprudence also involes politics, public policy and use of other case law, but building on flawed grammatical interpretation seems a bit of a cheat. Moreover, accusing Scalia of ignoring the preamble to the 2d Am. appears to be little more than an accusation that he hasn't adopted Posner's inference.

Textualism is not the first, last and only word in COTUS interpretation because it can't resolve every question. However, reasonable fidelity to text isn't too much to ask of a body tasked with resolving constitutional disputes.

Aquila Blanca said:
So by Posner arguing that the original intent was to prevent disarming the militia, he is in fact arguing that the original intent was to not disarm the populace.

I can live with that.
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Emphasis added. I don't think that is Posner's argument, since he relies on his inference that the amendment is "about" state militias, not general militia populations.

What this means for Heller is that the holding is subject to quick reversal if and when the court's composition changes.
 
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Posner's inference that the amendment is "...about forbidding the federal government to
disarm state militias" is his own inference, not an implication of the language of the amendment itself.
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+1

More to the point -- Had the Framers held to Posner's "militia" argument, they would not have inserted
the same target words as begin the entire Constitution itself: The People

quod erat demonstrandum....
 
Posner is a gadfly with some interesting ideas especially where law and economics intersect. Unless a case goes through the Seventh Circuit Court of Appeals and he writes an opinion he will have no impact.
 
Moore v Madigan is in the 7th right now...

If I remember correctly Shepard v Madigan has been combine with Moore.

Hopefully Posner correctly understands the Supreme Court's decisions in Heller and McDonald (unlike Judges Myerscough and Stiehl).

I personally wish Posner and Scalia weren't at odds. If Posner agreed with Scalia, I'd feel a lot better about Moore v Madigan.
 
Both cases, Moore (SAF/Alan Gura) & Shepard (NRA/ISRA) were combined at orals. Judge Posner is the President of the panel that heard these cases.

After listening/reading about this, over the last few weeks, I am hard pressed not to think that Judge Posner is telegraphing his intentions on the ruling. :(
 
Fortunately, an article in The New Republic, with such a tiny circulation, less than 50k based on a loss of half of their circulation from 2000 to 2009, will not have much impact. They stopped reporting circulation for 2010 and thereafter. Posner is an intellectual and will go where his mind leads him, not where the "law" leads him. Sorry to hear that the Seventh Circuit is hearing two "Second Amendment cases. In his 9-22-2012 Blog, John Lott had this to say:
"Calling Posner a "conservative" is really quite misleading. I don't know that he was ever a conservative, but he surely is someone who disdains precedent."
http://johnrlott.blogspot.com/2012/09/antonin-scalia-calls-richard-posner.html
 
zukiphile said:
Emphasis added. I don't think that is Posner's argument, since he relies on his inference that the amendment is "about" state militias, not general militia populations.
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If so, then he is historically wrong. When the Bill of Rights was written, I don't believe the states had state militias. Militias were organized at a much lower tier than the state, typically by the towns.

Nonetheless, I understand that his fundamental premise is that the 2nd Amendment was not intended to protect an individual RKBA, outside of service in a militia. He is wrong. A reading of documents contemporary to the drafting of the Bill of Rights will demonstrate this, as will a reading of the contemporaneous versions of the constitutions of the several states.
 
Richard Posner is unquestionably one of the most respected legal scholars in the nation. At least prior to Scalia's appointment to SCOTUS (not COTUS) Posner was far more respected and much more well known than Justice Scalia was. I believe Judge Posner was a Law Professor for the most part before his appointment to the federal appellate bench. Posner has written a lot of treatises , textbooks for law schools , etc. He was not a politician by trade. And it would not surprise me a bit to see him on the US Supreme Court. He is certainly more experienced than several recent additions to the Supremes.
 
After listening/reading about this, over the last few weeks, I am hard pressed not to think that Judge Posner is telegraphing his intentions on the ruling
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That was my concern when I posed the question. I knew there were a couple of cases in front of a panel that included Posner but couldn't remember the names (thanks Luger_carbine). My hope is that Posner is intellectually honest enough to lay aside his own interpretation of the 2A and follow what the Supreme Court said. I guess we'll find out.

Even if that were true in theory, with the modern doctrine of Incorporation, it wouldn't be possible.
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That's true if Heller and McDonald are followed and the RKBA is considered to be a personal, fundamental right. Posner's evident interpretation is that extolled by the Brady Bunch because it places all the power in the government. Again, my concern is that Posner will allow his interpretation of the 2A to color his judgment in applying Supreme Court precedent.
 
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There is an outstanding article on Posner on Wikipoedia. Some of his beliefs are a little out there. Others of his observations are so brilliant . I wish I had thought of them.Regardless of what I think or you think , the man is of high intellect. You don't get appointed to the Seventh Circuit because you helped out with the campaign. That is one step below the Supreme Court. If you lose in the Supreme Court your only further appeal is to God if you are so inclined.
 
You don't get appointed to the Seventh Circuit because you helped out with the campaign.
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Did you hear Judge Williams' questions about guns in liquor stores in the Moore case?

I think the issue she meant to get at was patrons having guns at bars.

How many people spend any length of time in a package store? There are the owners and employees - who should be allowed guns since liquor stores are often a targeted by armed robbers, there are the customers who spend 5 or 10 minutes in the store and then leave, and there are the armed robbers, who generally don't obey prohibitions on gun use.

It's not like a normally law abiding person is going to come in to a liquor store carrying and while they're in there they get falling down drunk, wack someone over the head with a pool que, get into an altercation and shoot someone.

Listening to her, I'm not sure how some of those judges got on the 7th.
 
Daggitt said:
You don't get appointed to the Seventh Circuit because you helped out with the campaign.
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On the other hand, the two newest female members of the SCOTUS were not appointed for their brilliant intellects or their incisive legal acumen. Kagan and Sotomeyor were political appointments, nothing more and nothing less. maybe not because they contributed to O's campaign, but political nonetheless.
 
As for Posner, I think it's a good thing he is probably too old to be considered for a SCOTUS appointment at this point in his career. He may be brilliant and he may be scholarly and he may write extensively, but he's a loose cannon. I fall generally in the camp that might be (and sometimes is) called "strict constructionist" or "originalist." And I think that's necessary, ESPECIALLY at the Supreme Court level when questions all revolve around the Constitution. How can any Constitutional matter be decided without looking at what the Constitution itself says on the matter? Posner basically says he doesn't care. That frightens me.

If one is only a "textualist," one takes words (text) at face value. But the meaning of words shifts over the course of time. In some cases this may leave a modern reader wondering, "Now what did they actually say there?" but in other cases linguistic, lexicographical, and grammatical shifts may operate to leave a sentence or a paragraph entirely readable, but change its meaning 180 degrees. That's the danger of strict textualism. I say that with some reservation, because I believe that laws which must be followed by us should be capable of being understood by us. On a lower level, if I do something that falls unfer the purview of a 300 year old law and a strict reading of that law today would say to anyone reading it that my action is legal, BUT a historian might know that 300 years ago the law meant that what I am doing was illegal ... then textualism saves my bacon. But suppose a police officer's brother is a historian and the cop knows the 300 year old meaning. I get arrested, and we argue textualism vs. original intent in court. Not good. I should be able to rely on what I can read in the statutes at the time I am performing an action.

But I think we need to set that aside for the Constitution. If we don't, we then automatically adopt the "living document, subject to modern interpretation" argument, which I find anathema.
 
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