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Go Home In Defense of Looseness

BOOKS AUGUST 27, 2008

In Defense of Looseness

BY RICHARD A. POSNER

At the end of June, the Supreme Court, in a case called District of Columbia v. Heller, invalidated the District's ban on the private ownership of pistols. It did so in the name of the Second Amendment to the Constitution. The decision was the most noteworthy of the Court's recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.

The majority opinion, by Justice Antonin Scalia, concluded that the original, and therefore the authoritative, meaning of the Second Amendment is that Americans are entitled to possess pistols (and perhaps other weapons) for the defense of their homes. Scalia's entire analysis rests on this interpretive method, which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions. The irony is that the "originalist" method would have yielded the opposite result.

The Second Amendment, part of the Bill of Rights added to the original Constitution in 1791, states: "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." In other words: since a militia, provided that it is well regulated, is a very good thing for a free state to have, the federal government must not be allowed to castrate it by forbidding the people of the United States to possess weapons. For then the militia would have no weapons, and an unarmed militia is an oxymoron.

Politically conscious Americans in the late eighteenth century feared standing armies, having fought the British army in the Revolution, and feared centralized government (as in Britain); and on both counts they wanted to make sure that the states would be allowed to have armed militias. The federal government could regulate them but not disarm them. The fear was that in the absence of such a provision in the Bill of Rights, the provision in Article I of the Constitution authorizing Congress to organize, arm, discipline, and call into service "the Militia" (a term that embraces the state militias, because the same provision reserves the right to train and officer "the Militia" to the respective states) would enable Congress to disarm them. That fear surfaced in the debates over the ratification of the original Constitution and was, as Justice John Paul Stevens's dissenting opinion explains, the motivation for the Second Amendment.

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 Court evaded the issue in Heller by cutting loose the Second Amendment from any concern with state militias (the "National Guard," as they are now called). The majority opinion acknowledges that allowing people to keep guns in their homes cannot help the militias, because modern military weapons are not appropriate for home defense (most of them are too dangerous), and anyway the opinion says that the only weapons the Second Amendment entitles people to possess are ones that are not "highly unusual in society at large." Modern military weapons are highly unusual in society at large. By creating a privilege to own guns of no interest to a militia, the Court decoupled the amendment's two clauses.

It justified this decoupling by arguing that the word "people" in the expression "the right of the people to keep and bear Arms" (the amendment's second clause) must encompass more than just militiamen, because eighteenth-century militias enrolled only able-bodied free men--a mere subset of the people of the United States. But obviously the Framers did not mean to confer even a prima facie constitutional right to possess guns on slaves, criminals, lunatics, and children. The purpose of the first clause of the amendment, the militia clause, is to narrow the right that the second clause confers on the "people."

My analysis to this point has been "originalist"--and it has led to the opposite conclusion from that of the majority of the Supreme Court. It has been a narrow originalism, like that of Scalia's majority opinion, because it has ignored the interpretive conventions of the legal culture in which the Second Amendment was drafted and ratified. The reigning theory of legislative interpretation in the eighteenth century was loose (or flexible, or nonliteral) construction. This is explicit in William Blackstone's Commentaries on the Laws of England, on which the majority opinion in Heller ironically relies. In the Commentaries we read that a medieval law of Bologna stating that "whoever drew blood in the streets should be punished with the utmost severity" should not be interpreted to make punishable a surgeon "who opened the vein of a person that fell down in the street with a fit." Blackstone explained that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.... As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them" (emphasis added). John Marshall, the greatest Supreme Court justice of the generation that wrote the Constitution and the Bill of Rights, was also a loose constructionist.

Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction. And loose construction is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.

The Framers of the Bill of Rights could not have been thinking of the crime problem in the large crime-ridden metropolises of twenty-first-century America, and it is unlikely that they intended to freeze American government two centuries hence at their eighteenth-century level of understanding. Because of the difficulty of amending the Constitution, it has from the beginning been loosely construed so as not to become a straitjacket or a suicide pact. The older the constitutional provision and the more the environment has changed since enactment, the more appropriate is the method of loose construction.

There are few more antiquated constitutional provisions than the Second Amendment. For example, the Framers and the ratifiers of the amendment probably did think that the right of militiamen to keep and bear arms entitled them to keep their weapons in their homes. They were expected to provide the militia's muskets rather than receive them from a weapons depot. Back then, moreover, guns required a lot of upkeep. Without constant care, they would rust and the powder would become moist. Storing the guns at a warehouse would have left many of them inoperable. To use this "original" understanding to allow members of the National Guard to store military weapons (machine guns, grenades, Hummers, and so on) would be preposterous, and it is disclaimed in the majority opinion.

 

In these and other ways, the Heller decision is exposed as an example of loose construction--despite the Court's pretense of engaging in originalist interpretation (but again, an originalism stripped of the original understanding of how a constitutional provision should be interpreted). Just as when the Supreme Court, in 1947 in Adamson v. California, decided in the teeth of the language of the Fourteenth Amendment that the amendment "incorporates" the Bill of Rights, an exercise of judicial discretion is presented in Heller as historically determined. The Bill of Rights was added to the original Constitution to limit federal power. One provision of the Bill of Rights forbids government to deprive persons of life, liberty, or property without due process of law. The Fourteenth Amendment contains an identical due process clause, but directed against state action. The Court in Adamson turned historical handsprings to interpret the Fourteenth Amendment's due process clause as incorporating--that is, making applicable to state action--most of the other provisions of the Bill of Rights. If Heller is applied to the states, it will be on the authority of Adamson.

The true springs of the Heller decision must be sought elsewhere than in the majority's declared commitment to originalism. The idea behind the decision--it is not articulated, of course, and perhaps not even consciously held--may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives' turn. Another plausible example of payback is the conservative justices' expansive interpretation of the free-speech clause of the First Amendment to limit regulation of campaign financing.

It is possible that in both the gun-control case and the campaign-finance cases the justices in the majority, rather than playing tit for tat, thought the laws they were invalidating very dumb, and in the case of the District of Columbia's ban on possession of pistols thought the law wimpish and paternalistic, like requiring bikers to wear helmets. A law that bans possession of pistols outright may even be inferior, at least as a method of controlling crime, to a law that combines strict permit requirements with heavy penalties for violating them, or even to one that simply imposes draconian penalties on crimes committed with guns. But judges are not supposed to invalidate laws merely because, as legislators, they would have voted against them.

There is an important difference, obvious but often overlooked, between using loose construction to prevent making the Constitution a straitjacket and using it to make the Constitution a straitjacket. In Kennedy v. Louisiana, a decision handed down shortly before Heller, the Supreme Court held that to execute a person who rapes a child but does not kill her violates the cruel and unusual punishments clause of the Eighth Amendment. That was a loose construction that tied the hands of the states and the federal government, and Scalia and the other conservative justices dissented. But in Heller it was the liberal justices who were dissenting from a decision that ties the hands of the federal government, and of the states, too, if the Supreme Court decides that the Second Amendment constrains state as well as federal government action. Compare these two cases to the Zelman case, decided several years ago. There the Court upheld, against a challenge based on the clause of the First Amendment that forbids governmental establishments of religion, the funneling of public monies to private schools by means of vouchers that parents can use to pay for their kids' tuition. Most private schools are Catholic parochial schools. The interpretation of the establishment clause that permitted the use of public moneys to finance parochial schools rejected the imposition on government of a constitutional restraint that the liberal justices wanted to impose.

Another illuminating contrast to Heller is the recent Kelo decision. The Supreme Court held that the just compensation clause of the Fifth Amendment does not forbid a state to condemn private property and, having thus seized it, to turn it over to a private developer. The decision provoked outrage by conservatives, who oppose condemnation because it infringes rights of private property. They should not have been outraged. All the Court did was unshackle government from a potential constitutional constraint, and by doing so toss the issue into the political arena. And sure enough, in the wake of the decision a number of states, under pressure from property interests, curtailed their eminent domain powers.

Similarly, had the Supreme Court upheld the District of Columbia gun ordinance, it would not have been outlawing the private possession of guns. It would merely have been leaving the issue of gun control to the political process. The popularity of the decision and its prompt endorsement by both presidential candidates attests to the political power of the "gun lobby"; and an unpopular decision in favor of the government would actually have strengthened the lobby, just as Roe v. Wade strengthened the anti-abortion movement. The proper time for using loose construction to enlarge constitutional restrictions on government action is when the group seeking the enlargement does not have good access to the political process to protect its interests, as abortion advocates, like gun advocates, did and do.

Constitutional interpretations that relax rather than tighten the Constitution's grip on the legislative and executive branches of government are especially welcome when there are regional or local differences in relevant conditions or in public opinion. The failure to recognize this point (or perhaps indifference to it) was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade. It would be the mistake the Court would be making in the unlikely event that it created a federal constitutional right of homosexual marriage. It is the mistake the Court has made in Heller. The differences in attitudes toward private ownership of pistols across regions of the country and, outside the South, between urban and rural areas, are profound (mirroring the national diversity of views about gay marriage, and gay rights in general, as well as about abortion rights). A uniform rule is neither necessary nor appropriate. Yet that is what the Heller decision will produce if its rule is held applicable to the states as well as to the District of Columbia and other federal enclaves.

Heller gives short shrift to the values of federalism, and to the related values of cultural diversity, local preference, and social experimentation. A majority of Americans support gun rights. But if the District of Columbia (or Chicago or New York) wants to ban guns, why should the views of a national majority control? Is that democracy, or is it Rousseau's forced conformity to the "general will"? True, a member of a national majority can be a member of a minority within a local area: gun buffs in Washington, D.C., for example. But a person who is a member of a local minority but a national majority can relocate to a part of the country in which the national majority rules. A resident of Washington can move to northern Virginia. This is not to say that there should be no national rights--that Mississippi should be permitted to stone adulterers, or Rhode Island to ban The Da Vinci Code. But the question of whether to nationalize an issue in the name of the Constitution calls for an exercise of judgment; and when the nation is deeply divided over an issue to which the Constitution does not speak with any clarity, and a uniform national policy would override differences in local conditions, nationalization may be premature.

There is a further difference between constitutional interpretations that permit government action and ones that forbid it: only the latter create new business for the federal courts. Conservatives rightly decry the enormous expansion in the federal caseload caused by the aggressive constitutional rulings of liberal justices in the 1960s. But if the new rule declared in Heller is applied to the states, we may see a similar result, this time engineered by conservatives; and we will have further confirmation that the Warren Court liberated conservative as well as liberal judges from the constraint of judicial modesty. Every time a gun permit is denied, the disappointed applicant will have a potential constitutional claim litigable in the federal courts.

Justice Scalia was emphatic that the right to possess a gun is not absolute. He sparred with Justice Stephen Breyer (who wrote a separate dissenting opinion) over the standard to be applied to restrictions on gun ownership. All that is clear is that an absolute ban on possessing a pistol is unconstitutional. The other restrictions that a government might want to impose are up for grabs. It may take many years for the dust to settle--many years of lawsuits that our litigious society does not need.

Conservatives rightly believe, moreover, that the efficacy of legally enforceable rights as an engine for social reform is overrated. The effects even of such well known and generally applauded decisions as those invalidating racial segregation of public schools and the malapportionment of state legislatures are uncertain, and may not have been, on balance, beneficial. The only certain effect of the Heller decision--for the scholarly literature has yet to reach consensus on the effects of gun-control laws--will be to increase litigation over gun ownership.

I cannot discern any principles in the pattern of the Supreme Court's constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides. The qualification in "most" is important, though. Scalia has voted to invalidate, on free-speech grounds, laws forbidding the burning of the American flag. That is loose construction--decidedly non-originalist in the narrow sense of his opinion in Heller--because burning is not speech; and it is a loose construction that produces a liberal outcome. Breyer concurred in a decision that allowed the Ten Commandments to be exhibited on the grounds of the Texas Capitol; and that was a conservative vote (and the swing vote in the case) by a liberal justice.

Whatever generated these justices' uncharacteristic votes in those two cases, it was not a decision-making method that prevents the exercise of discretion. Both justices employ judicial methodologies that leave them with plenty of running room. In his dissent in the Zelman case, Breyer argued that the school voucher system was unconstitutional because there was a "risk" that it could create "a form of religiously based conflict potentially harmful to the Nation's social fabric." In his dissent in Heller he reversed the burden, arguing that the risk that allowing limited gun ownership in the District of Columbia would lead to more death and injury from guns was enough to uphold the District's gun law against constitutional challenge.

Since Stevens devoted most of his dissenting opinion in Heller to his own interpretation of the original meaning of the Second Amendment, observers may conclude that the entire Court has now embraced originalism as the canonical method of interpreting the Constitution. But this is not a plausible inference in light of the child-rapist case of just a few weeks earlier (non-murdering rapists of adult women were being executed in the United States as recently as the 1960s), from which Scalia dissented. One supposes that Stevens could not resist meeting the majority on its own ground, since the text and the history (both pre- and post-enactment) of the Second Amendment favor the dissent. Among other things, professional historians were on Stevens's side.

Still, his opinion seems to me too dogmatic (the historical evidence is not as one-sided as his opinion suggests); and it leaves the impression that all that divided the two wings of the Court was a disagreement over the historical record. That was playing into Scalia's hands. The majority (and the dissent as well) was engaged in what is derisively referred to--the derision is richly deserved--as "law office history." Lawyers are advocates for their clients, and judges are advocates for whichever side of the case they have decided to vote for. The judge sends his law clerks scurrying to the library and to the Web for bits and pieces of historical documentation. When the clerks are the numerous and able clerks of Supreme Court justices, enjoying the assistance of the capable staffs of the Supreme Court library and the Library of Congress, and when dozens and sometimes hundreds of amicus curiae briefs have been filed, many bulked out with the fruits of their authors' own law-office historiography, it is a simple matter, especially for a skillful rhetorician such as Scalia, to write a plausible historical defense of his position.

But it was not so simple in Heller, and Scalia and his staff labored mightily to produce a long opinion (the majority opinion is almost 25,000 words long) that would convince, or perhaps just overwhelm, the doubters. The range of historical references in the majority opinion is breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.

This is strikingly shown by the lengthy discussion of the history of interpretation of the Second Amendment. Scalia quotes a number of statements to the effect that the amendment guarantees a personal right to possess guns--but they are statements by lawyers or other advocates, including legislators and judges and law professors all tendentiously dabbling in history, rather than by disinterested historians: more law-office history, in other words. Sanford Levinson, a distinguished constitutional law professor, has candidly acknowledged that the most important reason for his support of a constitutional right of private possession of guns is that opposition to this right is harmful to the electoral prospects of the Democratic Party.

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.

If constitutional decisions are to be determined by the balance between liberals and conservatives on the Supreme Court, the fig-leafing that we find in Heller--the historicizing glaze on personal values and policy preferences--will continue to be irresistibly tempting to the justices, with their large and tireless staffs and their commitment to a mystique of "objective" interpretation. There is no way to purge political principles from constitutional decision-making, but they do not have to be liberal or conservative principles. A preference for judicial modesty--for less interference by the Supreme Court with the other branches of government--cannot be derived by some logical process from constitutional text or history. It would have to be imposed. It would be a discretionary choice by the justices. But judging from Heller, it would be a wise choice. It would go some distance toward de-politicizing the Supreme Court. It would lower the temperature of judicial confirmation hearings, widen the field of selection of justices, and enable the Supreme Court to attend to the many important non-constitutional issues that it is inclined to neglect.

Richard A. Posner is a judge for the Seventh Circuit of the U.S. Court of Appeals and a senior lecturer at the University of Chicago.


 

 

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By Richard A. Posner

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107 comments

In his book on the Supreme Court's decision in Bush v. Gore, Judge Posner argued that the Court has the right, and in fact the duty, to make pragmatic decisions to make sure that things come out "correctly," regardless of the letter of the Constitution. He faulted the Court, in fact, merely for failing to come up with a good cover story for its decision. Having granted the Court plenary power to do whatever is "right," he now churlishly faults its recent decisions in Heller and other cases. But since it is the Supreme Court that has the power to decide what is "right," not Judge Posner, and since it is also the Supreme Court that has the power to decide what cover story should be served to the public to clothe its otherwise naked exercise of power, it would behoove the judge to maintain a decorous silence. Unless, of course, the appetite to see his name in print is Judge Posner's ruling passion. Which may perhaps be the case.

- Alan Vanneman

August 11, 2008 at 3:53pm

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1. The right to keep and bear arms existed prior to the Second Amendment. This right had many facets, including both self-defense and common defense (i.e. militia service). There is no reason to understand the right as being only limited to self-defense or only limited to militia service. 2. The Constitution gave Congress the power to "To provide for organizing, arming, and disciplining the Militia..." 3. The Second Amendment was drafted because people were concerned that this Constitutional power could be misused to disarm the militia. "A well regulated Militia, being necessary to the security of a free State..." 4. Regardless of the particular reason for enumerating it, the Second Amendment did not confer, create, expand or narrow any rights. Instead it prohibited the abridgment the of an existing right--"the right of the people to keep and bear Arms, shall not be infringed." 5. The right to keep and bear arms, including both its self-defense and militia-service elements, remains a right retained by the people. (See the Tenth Amendment.) 6. The fact that the Second Amendment includes the particular reason for enumerating the right it in the Bill of Rights should not be construed as creating a substantive limit on that right. (See the Ninth Amendment.) 7. Judge Posner is fundamentally mistaken in his conclusion that--instead of this being a preexisting right which the people retained--this a "right that the second clause confers on the 'people.'" His entire analysis is based on this incorrect premise. 8. At the state level, the right to keep and bear arms--not limited to militia service--was commonly understood at the time of its ratification to be one of the privileges and immunities of citizens that was protected by the Fourteenth Amendment.

- Christopher John Brennan

August 13, 2008 at 12:19pm

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Mr. Posner, your contextual analysis misses the forest for the trees. The founders were terrified that the Federal Government would become oppressive. Therefore they limited its ability to disarm the people, in order to make rebellion possible. That is the real purpose of the amendment. The notion that the founding fathers intended to give the federal government the ability to take people's guns when they had so recently resisted by arms the british government is preposterous on its face. Which is not to say i am defending every vote on the court as one for original intent. Kennedy traded in his original intent credentials, and indeed his ability to even claim to plausibly apply precedent and standards even-handedly in Kennedy v. LA. But in Heller, they got the result reasonably close to the founders intent. You also forget the principle of expressio unius when discussing it. you want to say the people = the militia, but if they meant the militia they would have said it. Legal writing 101, my friend. Finally you confuse loose interpretation to protect people versus loose interpretation to protect power. Indeed, in the Blackstone example you have an odd definition of "looseness" where you take a case where the court reads a term MORE NARROWLY than the literal words of the statute and you call that "loose." Of course all of that is in the service of making sure a doctor didn't get punished for trying to save a life. And why exactly should we be less charitable to a man whom the District of Columbia apparently believes can be trusted with arms to defend others, but not himself, his family or his home? Blackstone cuts against you, my friend. And as for Marshall, he also said this in Dartmouth College v. Woodward: > It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous or repugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an exception. Thus a charter became a contract within the contracts clause. It seems to me, the same logic applies to the right to bear arms—a presumption for Mr. Keller unless the pro-gun-control forces can make a plausible case in the opposite direction. That is, for instance, how I argue that the right to bear arms doesn’t include a right to bear nukes. All in all a poor and unconvincing performance. To any student of history who really seriously tries to understand where the framers are coming from, the meaning of the second amendment is crystal clear, and essentially identical to what the Supremes said it was in Heller.

- A.W.

August 13, 2008 at 3:27pm

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There are MAJOR problems with the theory that the 2nd Amendment was meant to ensure (and only to ensure) that States could arm militias. The biggest is historical. In drafting the Bill of Rights, Madison worked primarily from the Virginia ratifying convention's demand for one. This contained the prototype of the present 2d Amendment. Madison took that. But the Virginia demands ALSO called for a guarantee that the States could arm and organize their militias should Congress fail to do so. Madison omitted that. In the First Senate, the VA Senators moved to add it back in to the Bill of Rights. They were voted down. When the Framers wanted to say States shall have a right to organize and arm militias, they were perfectly capable of doing so, in clear language. Those who wanted that proposed it, separate and apart from the 2nd Amendment. And they lost. Twice. Second problem is pragmatic. My State, like most, has a legally-created militia, all persons 18-45. They are of course unorganized. (And are also the US militia: see 10 US Code sec. 311). Assuming that organization is necessary, suppose the State were to arrange for enrollment, or even, as in colonial days, one day of training a year (which Hamilton thought adequate for the average militiamen, see Federalist 25 or 26, I forget which). Would my State then be able to exempt us from all Federal gun control? Would the Federal government be unable to prevent us from purchasing machine guns at will? How about if the State decided to join the Nuclear Club? It has a constitutional right to equip its militia, under this theory, without interference by Congress. I believe the theory that the 2A protects only a State run militia is popular with some only because they see it as making the 2A meaningless. And if we go to interpretative method: the popular debates at the time make it quite clear that freedom of speech and press were viewed purely as (1) relating to political expression and (2) relating to prior restraint -- *many* authors of the time assumed that criminal libel laws would remain in place, with at most a defense of truth (indeed, several commented that this was what made the right to a jury so important, since they would acquit if your criticism of a public official seemed truthful). Is this how we should interpret the 1st Amendment, as well as the 2d? If not, why use two different standards for the two rights?

- David Hardy

August 13, 2008 at 3:39pm

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"In other words: since a militia, provided that it is well regulated, is a very good thing for a free state to have, the federal government must not be allowed to castrate it by forbidding the people of the United States to possess weapons. " Judge Posner should have stopped right there. It is clear tha he doesn't even have the historical background to tackle an Originalist argument. The simple fact that he misuses the term "well-regulated" at the very beginning of his article is proof enough that what follows is going to be less than stellar. I suggest reading the amicus briefs for Heller, they provide actual quotes and references to the very things that Posner so casually dismisses. I was not disappointed at his dissapointing logic.

- Deavis

August 13, 2008 at 3:50pm

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The words "well regulated" do not have the same meaning today as they did in 1776. Back then "well regulated" meant "well equipped" and did not have anything to do with regulation like we use the term today.

- ParatrooperJj

August 13, 2008 at 4:30pm

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Conspicuously missing from this column is any discussion of militia caselaw, although Posner's hypothesis is that the amendment relates to militia laws, not individual rights. This is undoubtedly because Posner could find no militia caselaw that supports his thesis, and a great deal that contradicts his thesis. I have researched and published on the subject of federal preemption of state militia laws. According to 200 years of caselaw at every jurisdictional level, Congress has plenary power over the militia, can exclude citizens from the militia, can remove the militia from state control, can abolish the militia by conscripting all the members, and can regulate and arm the militia as poorly as it wants. The Second Amendment is not a feature of militia law at all. It is only found, functionally or otherwise, in gun-possession cases. The Supreme Court has finally given it some meaning as an individual right; it has no meaning, and never did, as anything else. J. Norman Heath

- JN Heath

August 13, 2008 at 5:58pm

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As pointed out in these comments, the English language references of the 1790s and even the Heller decision itself. "well regulated" did not have the same meaning then as today. Judge Posner shows a profound ignorance of the history of the 2nd Amendment and is therefore no more qualified to interpret it than I am. My paraphrasing of it is: "Because a well equipped and practiced military eligible citizenry is necessary to the preservation of a free nation, a citizen's right to own and carry weapons shall not be restricted." I challenge Judge Posner to prove my version is incorrect. On the other hand, his version is amply discredited here and in the Heller decision.

- rspock

August 14, 2008 at 10:59am

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As pointed out in these comments, the English language references of the 1790s and even the Heller decision itself.

- rspock

August 14, 2008 at 11:09am

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Geez, Posner! 9 comments and nobody's buying it. Well, 10 now. I think you know well what the 2nd Amendment is all about but you just can't reconcile it with your own world view. Sure you've got lots of company but that doesn't make your version accurate or right.

- Mack Rogue

August 14, 2008 at 3:35pm

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Where did this judge get his law degree from? What a total lack of ability to understand what the supreme law of the land means. I couldn't even finish reading this ridiculous opinion piece because it comes nowhere near to defining the real meaning of the constitution, bill of rights, rights in general, and the 2nd Amendment specifically. How can any sitting judge advocate such intellectual dishonesty?

- DKSuddeth

August 14, 2008 at 4:13pm

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Mr. Posner said, "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." I remind Mr. Posner that a few years after the 2nd was passed the Congress did this very thing with the passage of the 1792 Militia Act. In this law all able bodied men (other then politicians, judges and Quakers) between the ages of 18 and 45 were to be enrolled in the militia and to acquire at their own expense a musket or rifle, a certain amount of ammuntion and a bayonet and to keep these arms at their homes. Further, by 1798 all the arms of the infantry were to be of one bore: a bore compatible with the Army standard musket of the time. The law required individual ownership, plus it did not limit what arms men could own and to what purpose they could be used. It only required that the men own at minimum a weapon that met the 1792 requirements. Further the arms were not kept at a central location, nor were they the property of the State. As the Federal letter of 1809 states the arms are owned by the men and are separate and distinct from either the arms in Federal store or the arms in State armories. And please none of this junk history that the Act was never taken into effect(Arver Vs US, 1918) or that it wasn't enforced for 100 years prior to its repeal (Perpich Vs Dept of Defense). We have common militia returns out to 1838. Further, Perpich can't explain how the common militia existed 12 years after the government stopped enforcing the act. Otherwise all the references to undisciplined militia in the war of 1812 was the National Guard. And that in turn throws the selective service act in to the trash since the 1814 bill quoted in Aver Vs US states it was a draft of 80,000 men from the state militias.

- James Gibson

August 14, 2008 at 4:56pm

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To better understand the Second Amendment to the United States Constitution it is helpful to consider how almost every reasonable person would interpret this amendment if it did not involve something which is considered controversial or politically incorrect by some and idolized by others. Arms in the possession of ordinary citizens meet both criteria. Let's, for the sake of argument, suppose that the Second Amendment dealt with books, not arms or weapons, and read like this: "A well educated electorate, being necessary to the maintenance of a free State, the right of the people to own and read books, shall not be infringed." Does anyone really believe that liberals would claim that only people who were eligible to vote should be allowed to buy and read books? Or that a person should have to have voted in the last election before the government would permit him or her to buy a book? Would the importation of books be banned if they did not meet an "educational purpose" test? Would some States limit citizens to buying "one book a month"? Would inflammatory "assault books" be banned in California? The meaning of the Second Amendment becomes quite clear if one removes the emotional "gun" issue. Let's re-state the 2nd in another context: A well educated electorate, being necessary for the security of a free state, the right of the people to keep and read books, shall not be infringed. If this were the law, would only educated people have the right to keep books? Or, would only the voting electorate be allowed to read? Of course not. All the people would have the right to keep and read books, and the state would benefit by having a more educated electorate. There is NO requirement to be a member of a Militia to have the RIGHT to keep and bear arms. However, the more people who DO, the better the security of the state. The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)] For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution. [Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)

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August 15, 2008 at 4:09am

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If the judge cannot seem to separate his feeling from the facts, he should step down. He has no business being a judge whatsoever. For someone who has been through several years of college, he has a very poor grasp on the English language. He also seems to have the mistaken impression that the Bill of Rights to the Constitution confers Rights, it does no such thing. It recognizes pre - existing, natural Rights that every single person is born with. It states the government may not infringe on these natural Rights. It is no small wonder when we have people like this as sitting judges, that the country has become such a socialistic nightmare. Thank - you judge Posner for your part in destroying this country.

- Bill

August 15, 2008 at 10:00am

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Posner complains that "Scalia quotes a number of statements to the effect that the amendment guarantees a personal right to possess guns--but they are statements by lawyers or other advocates, including legislators and judges and law professors all tendentiously dabbling in history, rather than by disinterested historians..." Just who are these "disinterested historians" that Professor Posner presumes to exist? It is the rule rather than the exception these days that university social science professors tailor their research to support their philosophical and political biases. For example, Emory University history professor Michael Bellesiles won a lucrative prize from the national historians' association for a book that presumed to de-bunk the NRA's interpretation of firearms in American history -- only to resign in disgrace, his prize withdrawn, when amateur historian Clayton Cramer, after checking out Bellesiles' cited sources, posted credible evidence that the entire work was essentially fraudulent. Yes, the "disinterested" professors who so gleefully celebrated NRA-debunking "research" without first verifying its accuracy side with Stevens in the Heller case. That proves nothing other than the fact that most professors of history want more gun control. Scalia's account of the 2nd Amendment history was done in good faith. Justice Stevens and the "professional historians" who supported him did not study history in good faith; _they_ were the ones who engineered deliberately misleading interpretations in the hope of getting their desired political result. _That_ is the difference. The truth is that the 2nd Amendment was intended to prevent the federal government or its subordinates from infringing the right to keep and bear arms. To the extent that the states were considered sovereign entities unbeholden to the Bill of Rights in general (a position which is generally rejected today), they had the power to pass whatever gun laws they pleased. They could determine the extent to which their "militia" was sufficiently regulated, and the races of the people who qualified to vote or keep firearms. As the states were encouraged to create their own republican forms of government, most of them put the individual right to keep and bear arms into their own state constitutions with the intention that _no_ level of government would infringe this right. In practice, however, the states' respect for civil rights was often compromised due to racism or expediency, and Jim Crow courts let them get away with it. _That_ is the history. In short, the Supreme Court made the correct decision in the Heller case -- by any theory of Constitutional interpretation.

- fsilber

August 15, 2008 at 1:21pm

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Mr. Posner is a revisionist historian, and suffers a severe case of gavel envy.

- greg

August 15, 2008 at 3:27pm

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I find it ironic that you can use "The People" in the second Ammendment in a different context than anywhere else in the Constitution and Bill of Rights. I also find it ironic that you would feel it necessary to list a right of a government in a document meant soley for declaring rights of the people. The Constitution define exactly what the government can do, anything not listed is not allowed. The constitution does not allow the government to pass any law outside of the specific defined powers granted to the government, period. It is also equally absurd to claim that these are meant to be re-interpreted from time to time. Freedom is freedom, 1000 years will not make the definition different.

- Don Tremaine

August 16, 2008 at 2:32pm

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It's only the democrat Justices that legislate from the bench. It is not a POWER of the supreme court to decide what they think is right or wrong. It's only purposed is to determine if the law is according to the Constitution or violate it. They can not interpret their view of what should be "the right thing to do", or the way they "feel" is right. The second amendment is very clear "The People" is not ambigous. "Right to bear arms" is not ambigous. Liberal justices that legislate from the bench are in violation of their oath to uphold the constitution, not change it.

- Don Tremaine

August 16, 2008 at 2:39pm

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I know that most people believe that the Bill of Rights only applies at the federal level. Not so at all. Can you imagine Washington DC making it illegal to pray out loud on government property. That's against the first amendment. Oh I forgot they did. Let's try another topic. My point is that this extremely left wing governemnt is completyely out of control/\. We need a new definition for the Congress. They should be redefined as law removers not law makers. As law makes if they don't produce more laws they are not perfoming their duty. If we make them law removers, they can have a field day just looking for unconstitutional laws. It could take deades to clean up the laws in this country.

- Don Tremaine

August 16, 2008 at 2:46pm

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I would like to know how a state can pass a law in direct violation of a federally protected right?

- Don Tremaine

August 16, 2008 at 2:57pm

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Great post

- Don Tremaine

August 16, 2008 at 3:03pm

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Hey Judge: Answer this...how come these States have it in their Constitution/Bill of Rights that the people have the right? Huh? Ooopps...you forgot that little issue didn't you? Connecticut: Every citizen has a right to bear arms in defense of himself and the state (1818). Kentucky: [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792).Massachusetts: The people have a right to keep and to bear arms for the common defence (1780). North Carolina: [T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power (1776).Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power (1776). Rhode Island: The right of the people to keep and bear arms shall not be infringed (1842).Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796). Vermont: [T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777). Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

- scott. mt. airy, md

August 16, 2008 at 8:48pm

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Prior to the American Revolution the colonists privately owned guns. All the Founding Fathers owned guns. Those who drafted the Constitution and the Bill of Rights owned guns. They didn't create the Second Amendment to have their right to own guns be based upon belonging to a militia. The philosophical roots of the Second Amendment stems from ancient anglo political philosophy that can be stated as: "if my government wants my trust then my government has to trust me." A just government has nothing to fear from law-abiding citizens who own guns.

- Paul March

August 17, 2008 at 1:45am

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Not one supporting comment in a "liberal" journal, and some very learned objections. In fact, Barack Obama has also disagreed in public. Can we drop the gun control subject now?

- Robert Powell

August 18, 2008 at 2:18am

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It's like you didn't even read the opinion. Scalia addresses all of the issues you bring up.

- Dave

August 18, 2008 at 10:13am

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The Supreme Court ruling in the Heller case was the right one. It affirmed that a citizens right to self defense is a Constitutionally protected right. It is not a right created by the Constitution but is a right that has always existed! Judge Posner is mistaken when he says that this right is for a militia. It is not! It is a right that every citizen has. Posner's convoluted argument can be destroyed with one quote from James Madison. "Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison.) The Federalist Papers #46 Nowhere in that quote does Madison talk of a militia. He states quite plainly that the right to be armed belongs to the American citizen, not a militia. Why is the opinion of James Madison important to any debates about the Second Amendment? Because James Madison wrote the Second Amendment! Madison wrote the Second Amendment to protect citizens from any government encroachment on our natural rights. Claims that the right to be armed is contingent on membership in a militia are contrary to what Madison wrote. The Supreme Court decision in the Heller case is based on James Madison's Second Amendment.

- Bryan Bjornson

August 18, 2008 at 10:24am

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Federalist Paper #28 ( Hamilton) "If the representatives of the people betray their constituents, there is then no resource left but in the exercise of that original right of self defense which is paramount to all positive forms of government, ..., The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."

- Harry O. Hendry

August 18, 2008 at 11:10am

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Of all the Amendments, the Second Amendment is amongst the most plainly worded. Debate over its meaning or attempts to interpret it in a "flexible" manner are the result of hoplophobia. I find it interesting that left-wing liberals, so eager to "re-interpret" the Second Amendment, are the first ones to hide behind the First Amendment. I'd like to see their "flexible" interpretation of that one.

- Fred

August 18, 2008 at 2:37pm

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Thankfully we (the People) aren't dependent on thinkers like Mr. Posner for the protection of individual liberties.

- D

August 18, 2008 at 3:29pm

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"...which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions." There is no such legitimacy, and Posner's bias is exposed in that comment. If the Constitution is to be "flexibly adaptable" then why even have it?

- tammy

August 18, 2008 at 3:32pm

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I believe the comments by the anonymous individual in comment #13 above are some of the best observations I have seen on this topic. Substitution of the word book for the word gun provides an extraordinarily effective arguement! Both are dangerous, both can be used to provoke, injure or defend. The perfect metaphor! I would love to read Posner's response to the use of this specific metaphor, particularly in light of the virtually unanimous rejection of his arguements in this particular forum.

- Phil

August 18, 2008 at 3:38pm

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I find it absolutely amazing that some of the commentators on this board are so self-assured and haughty as to suggest that Posner "shows [] profound ignorance" or isn't aware of the (smoke and mirrors) principle of "expressio unius" or of the nature of pre-constitutional conceptions of gun ownership rights. You do realize that, in making such equal parts hilarious (in their unknowing) and ad hominem (in their invective) comments, you are merely signaling that you the commentator are incapable of holding an intelligent discussion on the matter. Do you even know who Posner is? Have you spoken with the man or read his work? He's easily one of the top five living jurisprudential thinkers in the United States of America. This isn't some sycophantic paean: everyone gets things wrong, Posner included. But when you write such childish comments, you're just marking yourselves out as true idiots. I'd encourage you to take another twenty years to ponder this subject before you so easily spout off. Start with reading background material outside the confines of the purely affirmational. Then - barely - you might try to actually discourse with the author. Best, AK

- A.King

August 18, 2008 at 3:54pm

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The idea that we have a Bill of Rights for the government is absurd, as James Madison (author of the Bill of Rights) and other founding thinkers of the day made it clear that all rights reside with "the people." Government has no rights. Government has only powers given to it by the people, exercising their rights to establish and empower government. The people have the right to expand the powers of government, reduce the powers of government, and even abolish the government and create a new one if they so choose. Therefore it is absurd to argue the 2nd Amendment describes a right of the government to disarm ordinary citizens. The government cannot have a right.

- Steve

August 18, 2008 at 3:57pm

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Leave it to TNR to find a judge that would bury the simplicity of the Second in semantic dross. What, Judge Posner, are you angling for an Obama appointment? Couple things here: Well regulated means well trained and equipped, the intent being to have ORGANIZED militias that would function far better than an armed rabble. Too dangerous? Modern weaponry is most emphatically dangerous only when improperly fired or inappropriately used. Any object or manufactured item can be dangerous in the hands of a creative or hostile user. The distinction here should be in EFFECTIVENESS. The simple fact is that at Concord Green, the revolutionaries in fact had SUPERIOR weapons to the British infantry, namely rifled muskets versus smoothbore, which made them more EFFECTIVE and therefore DANGEROUS to the enemy. And it is a historical fact that at least up until the National Firearms Act of 1934, the average citizen did in fact have legal access (if not always fiscal) to firearms equal to if not better than those provided for military, national guard, or militia personnel. All that said, Scalia's decision was lacking. All he managed to accomplish is to re-establish a right while leaving the boundaries of that right open for further discussion -- a jobs program for lawyers. So I guess I agree with THAT tiny part of Posner's tortured rant.

- Dave Skinner

August 18, 2008 at 4:11pm

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The quote Blackstone is not at all contrary to Scalia's method of interpretation. The quote, as Blackstone directly states, is an argument against literalism. Blackstone says that "if literally understood" the phrase "whoever drew blood in the streets" would lead to an absurd result (e.g. punishing surgeons for aiding the wounded). Scalia would happily agree with Blackstone's point because Scalia is also not a literalist, so the quote is entirely beside the point. Scalia believes that we should interpret the words and phrases in the Constitution according to the ordinary meaning those words and phrases would have had to people at the time the Constitution was written. I presume (and it seems that Blackstone presumes as well) that when they wrote the law, the term "draw blood in the streets" meant strike someone in a manner that causes them to bleed. If that is the case, then Scalia would have interepreted the law the same way, because that is the ordinary meaning the words had to the people at the time the law was written. If a surgeon was prosecuted under the law for "drawing blood" (or maybe if a chile was prosecuted for drawing blood in red chalk on the streets) Scalia would have overturned the conviction bvecause that's not what the words meant at the time the law was written. Blackston is immensely authoritative in law and so it's no surprise that Posner would like to use his authority against Scalia. The only question is, did he use this example negligently, out of his own ignorance of original meaning? Or did he use it knowingly, in reliance on ours?

- Sean

August 18, 2008 at 4:12pm

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Judge (is this guy really a judge?) Posner is fundamentally wrong in his comprehension of Constitutional Law and the purpose and meaning of the 2nd Amendment. This "judge" would impose his own tyranny upon "we the people" rather than bow to the considered wisdom of our founders and comprehend the depth of historical experience which demanded such protections as afforded by the 2nd Amendment, in particular. Justice Scalia's reasoned opinion remains the finest articulation of Constitutional understanding in my half Century lifetime. Posner gets a failing grade for Constitutional imbecility-on this score.

- Mike deMayo-Mohawk, NY

August 18, 2008 at 4:17pm

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What an idiot.

- John Mearsly

August 18, 2008 at 4:19pm

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The Second Amendment is the last line of defense for our (USA) citizens against invasion by a foreign force, a criminal, or against our own Government if need be. Ask the Georgians if the Russians would have been so quick to invade if there was at least one gun in each home that could have been used against the aggressors! Ask the African people who have been driven of their lands and are starving to death if they would be better off now if they had been armed and able to resist their aggressors. Strong laws against the misuse of weapons are absolutely necessary and should be enforced. However, disarming citizens for their own safety or to control them is like taking away all cars, trucks, planes, etc to reduce fatalities caused by a few irresponsible people or mechanical failure. To paraphrase "An armed person is a Citizen, an unarmed person is a Subject controlled by others.”. If all responsible United States citizens, at the age of twenty-one, were required to know how to use a firearm our crime rate would be much lower and accidental deaths caused by firearms would be greatly reduced. The Second Amendment is the cornerstone of our Liberty and safety, now and in the future!

- M. Cuff

August 18, 2008 at 4:24pm

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Bravo Richard Posner, accurate rendition. Though you will find few such accolades from this motley group, pro gun zealotry is more rabidly intense on this issue & saturates gun boards with rightwing mentality. .. I wld like to add a comment regarding Wm Rawle, whom the supreme ct5 cited as 'supportive' of their individual rights (i-rkba) ruling. Wm Rawle circa 1826 wrote 'a constitutional view of the united states' which touched on 2ndA & is excerpted by scalia (=supr-ct5)... scalia thinks rawle supports his irkba, when rawle actually contradicts him. .. here is how scalia cited Rawle (abbrev & emph added): "In 1825, Wm Rawle, a prominent lawyer who had been a member of the Pa Assy that ratified the BoR, published an influential treatise, which analyzed the [2ndA] as follows: "The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . ."The COROLLARY, from the first position is, that the right of the people to keep and bear arms shall not be infringed." wikipedia: A COROLLARY is a statement which follows readily from a previously proven statement..... In mathematics a corollary typically follows a theorem..... The importance of the corollary is often considered SECONDARY to that of the initial theorem; ... A is UNLIKELY to be termed a corollary if its mathematical consequences are as significant as those of B. .... Sometimes a corollary has a proof that explains the derivation; sometimes the derivation is considered to be self-evident. Webster's 1828 dictionary: COROLLARY: 1. A conclusion or CONSEQUENCE drawn from premises, or from what is advanced or demonstrated. (2). A corollary is an INFERENCE from a preceding proposition. (cont'd next post)

- Jimmy the One

August 18, 2008 at 4:25pm

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Mirriam Webster Online defines militia with three (3) definitions. One is : a body of citizens organized for military service. A good reason for a "body of citizens" to organize militarily is to to overthrow a government that has become tyrannous in its purpose and methods. That government is not going to hand out guns to those organizing themselves to overthrow it. Parts of the country of Georgia are now experiencing a confiscation of their weapons by an invading army. In real time, they know how important their access to weaponry is. Afghanistan in the 80's was also quite knowledgeable about the need to be armed.

- Paul Porter

August 18, 2008 at 4:34pm

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I believe Posner has provided us with a very good example of the results-driven reasoning adopted by judges who would legislate from the bench. Once the preferred result has been determined, it's relatively easy (although intelectually dishonest) to build a case to support that result. As is usually the case with gun control advocates, Posner totally misses the point. Should the desired result be the stripping of individuals' rights to own a gun, whether handgun or long gun, whether law-abiding citizen or criminal, or should the desired result be the reduction of crimes, and especially violent crimes, committed with firearms? If the desired result is the elimination of gun rights, I would question Posner's motives, and I would caution him about the slippery slope associated with that desired result, because the next right to be eliminated may be one he views more favorably. If, on the other hand, the desired result should be the reduction of gun-related crimes, then I would suggest there are much more effective ways to pursue that result by pursuing it directly, instead of indirectly through eliminating gun rights for all individuals. Richmond, Virginia has been very successful in reducing gun crimes by targeting criminals, not guns. Getting serious about prosecuting gun crimes, and levying long prison terms for gun criminals instead of plea-bargaining their offenses down to misdemeanors, produces significant results.

- Bill Grant

August 18, 2008 at 4:40pm

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(cont'd Wm Rawle, 2): Already, thanks to the supreme court5 citing Rawle, we have disproven one pro gun argument - their grammatical argument that 2ndA construction makes the individual clause the dominant clause. No, by rawle, the individual rkba clause was a CONSEQUENT to the well reg'd militia (wrm) clause... i-rkba being a consequent, stemmed from the wrm clause. What Scalia also ruled: ".. the 'militia' reference .. simply 'announces the purpose for which the right was codified: to prevent elimination of the militia.' ... he added that this 'prefatory statement of purpose' should not be interpreted to limit the meaning of what is called the operative clause 'the rkba, shall not be infringed.' Instead, Scalia said, the operative clause 'codified a pre-existing right' of individual gun ownership for private use." Scalia contradicts himself when he cites rawle & simulataneously contends the i-rkba clause to be pre existing, since Rawle referred to the i-rkba clause as a CONSEQUENT to the wrm clause. Can a corollary (or consequent) be pre existing to the corollary's proposition or theorem? Not accd'g to webster. .. how then can scalia's ruling comport with rawle's 'influential treatise'? .. by now it's apparent to most all unbiased reasoning readers what rawle intended, that rkba was granted to support the wrm. But modern day gun gurus can spin mt everest just by looking at it. .. approx how long was scalia's i-rkba a 'pre-existing' right? preexisting to 1791 when 2ndA was written? or preexisting to the need for a wrm? one or the other, or both. .. american colonies well prior to 1791 recognized the need for well regulated militias, prior to 1776 as well, & 1776 or 75 is about as far back as scalia can justify any pre existing american rkba. Rawle covers both the date & the wrm qualifier. .. scalia contradicts rawle when scalia contends i-rkba was there to 'prevent elimination of the militia'. As if a corollary was developed to preserve it's origin, as if the reason for development of the carburetor was to prevent the internal combustion engine from malfunctioning. Scalia has reverse engineered rawle's proper reasoning.

- Jimmy the One

August 18, 2008 at 4:49pm

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The "right to keep and bear Arms ... " . Interestingly all the legal scholars amongst us never dsicuss what "Arms" actuall are in their diatribes or defenses? "Arms" meant a hell of a lot more than guns, it meant knives, swords, side swords and other non-firing weaponry. You'll note the main defenders of this supposed, "Right to bear Arms" are "The National Rifle Association" not some entity called "The National Sword and Knives Assocaition"? The Supreme Court's stupid decision leads me to lobby for my "right" to carry a side sword or machete, one of which I put to good use in the jungles of South East Asia years back. If we're going to be fair about this issue let's allow "citizens" the right to use whatever weapons the Founders used when they concocted this rule? arrtist

- arrtist

August 18, 2008 at 4:57pm

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A government which proposes to be the sole possesor of firearms is aiming(pun intended) to be the SOLE oppressor.

- James Groome

August 18, 2008 at 4:59pm

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I had the chance to visit Williamsburg VA a number of years ago where I toured the Governor's mansion. It was decorated with guns. The tour guide explained this strange decor as normal for Colonial times and that these guns were available for issuance to civilian militias at time when the governor thought they needed them. The point of displaying them like this was so everyone would know exactly who they had to depend upon for the arms necessary to protect themselves. I now think I know exactly what was in the minds of the second ammendment authors. By limiting gun access the Williamsburg governor was using a threat of selective protection as a source of power over his subjects. (One sees the same thing happening in an abusive sense with "Bad" sheriffs in classic westerns.) The right to bear arms speaks directly to limiting the ability of the state to leverage its powers by prohibiting individuals from providing protection for themselves. I suspect that an expansive view of Constitutional law could expand this notion of limiting leverage to any number of other areas where the government prohibits non-government-sanctioned access to things are necessary for life, liberty, and the pursuit of happiness.

- wbillc

August 18, 2008 at 5:04pm

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It has been alomost 50 years since I studied American Political Thought but my recollection is that "a well regulated militia " is US-WE THE PEOPLE- no one trusred the government in any form.

- LEW

August 18, 2008 at 5:05pm

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If these posts, or the will of the people is any indicator, Richard Posner is an idiot. This publication should give serious consideration to printing illogical and poorly formed arguments of this sort, lest it further cement a reputation as a liberal rag. While I imagine the author is a learned individual, and passionate in his support of gun control, he is quite wrong in his view. What's more, this opinion is dangerous as it robs us all of an inherent right to protect ourselves, our loved ones, and personal property. Allow me to simply end by quoting Thomas Jefferson, whom we can all agree knew something about the original intent, as he said, "No freeman shall be debarred the use of arms [within his own lands or tenements]."

- Spencer

August 18, 2008 at 5:06pm

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D Hardy writes: "My State, like most, has a legally-created militia, all persons 18-45. They are of course unorganized [militia].. suppose the State were to arrange for enrollment, or even, as in colonial days, one day of training a year .. Would my State then be able to exempt us from all Federal gun control?" ............................... ................... .... ............ this is hypothetical & has little to do with the argument; an unorganized mob with guns is no more a militia than loose bricks & lumber is a house (old roman or greek saying)........... The US code you cite separated all americans into 2 categories, first the national gds aka well regulated militia, & secondly the unorganized militia comprising everybody else (or ~97% of adult americans excluding the army navy af marines et al military)....I repeat: an unorganized mob with guns is no more a militia than loose bricks & lumber is a house .......... An unorg'd militia fails the 2ndA requirement for a well reg'd militia since by definition an unorg'd milita is not well regulated. ... applying 2ndA to your hypothetical would mean your state's militia could not be disarmed or demilitarized by a corrupted congress or your state's corrupted legislators.

- Jimmy the One

August 18, 2008 at 5:17pm

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Judge(I use the salutation loosely) you analyzed the text and state "The purpose of the first clause of the amendment, the militia clause, is to narrow the right that the second clause confers on the "people." WRONG First of all the first part is a present participle not a clause... As stated in the literary analysis below... The ammendment has been analyzed by Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus." Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished 17-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field. He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus," has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publisher's Humanities Award. Complete text here... largo.org/literary.html A few highlights... [Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?" [Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people." [Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?" [Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence." Read the complete analysis here largo.org/literary.html Restore the Republic!!!

- James Groome

August 18, 2008 at 5:37pm

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bryan bjornson's misconception, citing JMadison: "Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison.) The Federalist Papers #46 Nowhere in that quote does Madison talk of a militia..... .......... ........... ....... ....... ....... ......... NOWHERE in the quote does madison talk of a militia, bryan? that's because you fell for nra gun lobby propaganda, your quote is TAKEN OUT OF CONTEXT & appears reworded.... Here is the full quote, & you need to retract & rethink:.... "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate govts, to which the people are attached and by which the MILITIA officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple govt of any form can admit of. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the govts are afraid to trust the people with arms." .... should be clear that madison was in militia context there, bryan.

- Jimmy the One

August 18, 2008 at 5:38pm

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You've shown your ignorance early in this article. 'Regulated' at the time was used to mean trained or practiced, not controlled as you indicated. Your whole premise is therefore false.

- HD

August 18, 2008 at 5:45pm

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Judge Posner; The militia is us, not the National Guard. “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.” -James Madison in Federalist 46

- Brick Oven Bill

August 18, 2008 at 5:53pm

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As has been pointed out, Posner is delusional, and not only for the many excellent points in this discussion, but for the simple fact that he takes a completely exceptional position with nothing to back it up. In every case we have always determined that the rights are not group rights, but individual rights. Only in modern history have “deep thinkers” decided to make the second amendment a collective right that does not apply, like all the others, to individuals. He is asking us to believe that the Second Amendment is the ONLY amendment in the Bill of Rights that does not guarantee an individual right, and he is asking it without basis. Freedom of religion does not mean that I have to join a government recognized church in order to practice. Freedom to be armed does not mean that I have to belong to a government sponsored militia, and even the term “militia” means all able bodied men over the age of 18, is he suggesting that only men can have guns as well? Freedom from quartering soldiers doesn’t mean as a community, but it means they can’t come into your home. And down the list you go. Each one of them applies to the individual. After all, we have a true liberal system that places the individual at the center of the political equation. Anything else is illiberal.

- Lionidas

August 18, 2008 at 5:54pm

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The first part of the 2nd Amendment (i.e., "A well regulated Militia being necessary to the security of a free State...) may have provided one of the rationales for the right to keep and bear arms. But that right (i.e., "... the right of the people to keep and bear Arms, shall not be infringed.") neither changes nor disappears just because militias metamorphosed and standing armies emerged.

- Mitty

August 18, 2008 at 6:17pm

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Nothing prevents a state from enacting additional protections that go beyond the protections offered by the federal constitution. So, you could have a "right" that isn't protected by the federal Const., but is protected by your state Const. It's called federalism. I actually disagree with Judge Posner's interpretation of the 2d Amendment and believe that it does, in fact, protect private gun ownership. I was going to leave a comment to that effect, but was more disappointed by all the posts personally attacking Posner (alot of the posts, not all). You can disagree with logic, history, etc., but to accuse him of being dumb or dishonest only shows your own ignorance. Although I disagree with Posner's conclusion, the article is well written and interesting. Posner has more intellect in his little finger than most of the people on this thread combined. In fact, most of the pro-gun advocates here would agree with the majority of Posner's decisions. The New Republic deserves credit for printing the piece (and I'm a conservative).

- Untrained Ears

August 18, 2008 at 6:23pm

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The decision actually should have been that, since the 2nd Amendment was designed to protect states from the Federal government, and since the DC Council is a creation of the federal government (DC being the "federal city", where Congress has general lawmaking powers), the 2nd Amendment has no validity in DC. This was one argument made by the lower court's dissent, by the way. If you are scared of the federal government, why are you living in the only place it has general police powers? Anyway, the Heller decision has no bearing on state laws, such as Chicago's ban on handguns.

- MDL

August 18, 2008 at 6:39pm

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oh, please, richard posner is going to tell us the supreme court's decision in the gun case was wrong because the text of the statute and the concerns it addressed don't support that decision? that may or may not be true--my view is that posner is wrong--but posner's allusion to law or facts is mere illusion, because posner does not believe in text or facts; rather, he believes judges are kings and queens and that THEY make the law. although posner is a republican by repute and has often made the "short list" of supreme court potential nominees, he is in fact a rather extreme proponent and practitioner of judicial law-making well beyond normal bounds. here's what posner really believes, as the judge puts it in his book, the problems of jurisprudence, harvard university press (1990), at pages 459-460: "fifth, law is an activity rather than a concept or a group of concepts. No bounds can be fixed a priori on what shall be allowed to count as an argument in law. The modern significance of natural law is not as a body of objective norms that underwrite positive law but as a source of the ethical and political arguments that judges use to challenge, change, or elaborate positive law—in other words to produce new positive law. there are no moral “reals” (at least none available to decide difficult legal cases), but neither is there a body of positive law that somehow preexists the judicial decisions applying, and in the process of confirming, modifying, extending, and rejecting, the “sovereign’s” commands. The line between positive law and natural law is no longer interesting or important and the concepts themselves are jejune. . . . sixth . . . There are no “logically” correct interpretations; interpretation is not a logical process. . . . seventh, there are no overarching concepts of justice that our legal system can seize upon to give direction to the enterprise. . . .” so, don’t you see, the law is whatever judge posner says it is on a given day--'cause there ain't no overarching concepts of justice in any of those legal books i read in law school. Precedent be damned. but let's turn to gun control issue. the text of the second amendment could not be more clear. the united states government cannot make gun control laws. the right of the people to bear arms shall not be infringed by the federal government and that's that. the gun lobbyists are also correct in asserting that this right is meant to keep the federal government at bay the next time hitler takes over the white house. we cannot, for the sake of convenience, just gloss over what the founders wanted where that intent is (1) clear, and (2) has not been modified by amendment. we have to work within the constitutional framework if we do not want to harm the integrity of our system by “end runs” around the law as surely as the guns harm it by killing and maiming our fellow citizens. however, that doesn't mean that guns aren't a problem or that the country is powerless to address the problem. the easiest control would be to amend the constitution to allow the federal government to control guns--well, the easiest in theory, but maybe the hardest in practical terms. however, there is a simple solution to gun control that is constitutional, yet will take away the right of every urban gang member, alienated suburban brat, and country weirdo to own a weapon—although with a gun for every man, woman, and child in the country already out there, even this solution won’t end the problem entirely. for all those who spend their time imagining the final battle against a future evil white house, the solution is to give them the chance to be real soldiers, so that when the time comes for that fight, they can do us some good (and pick up highway litter and sandbag overflowing rivers in the meantime). working within the system and controlling guns is not hard to accomplish. the primary focus of the 2nd amendment is that the serious business of overthrowing a dictator necessitates tight organization and, therefore, should be carried out by the states. their success eliminates the need for “the people” to act as the bulwark against a dictatorial washington. the right to keep and bear arms is rightly part of a system of “well-regulated” state militias. but our system provides for the 50 elected governors, to take the lead against the next mr. hitler, not the president of the national rifle association, leading a band of unorganized citizens. only if a state’s governor throws in his or her lot with the washington dictator does the right to oppose by force of arms devolve to the people, and even then the constitutional object is to align the well-regulated militia of one state with an elected governmental leader from another state. state legislatures could adopt a uniform well-regulated militia act. such a law could say that if you want a gun, you have to serve in the national guard of your state for six weeks every year at the rate of $75 per week, or whatever other time and sum a state can afford. while on duty, but not at war, this well-regulated militia can clean up the slums, build dams, dig ditches, spruce up railway tracks, help the elderly and disabled to get to the hospital or get food, and perform myriad other socially useful tasks. this law will require anyone desiring to own a gun to take courses on its care and its responsible use. all those wishing to own a gun by joining the militia (called the national guard in most places) will also have to study the federal and state constitutions and criminal law regarding guns, so that when they go on the march against mr. hitler, they will know why they are going and exactly what it is they are protecting—a liberal, tolerant, democratic, capitalistic society that rejects racism and is operated for the general welfare of all the people. if someone commits a crime with a national guard gun, the militia member appointed to the gun will be charged with failing to secure property important to the preservation of our liberty and appropriately punished if convicted. under this proposed law, the governor of each state, as commander-in-chief of the militia, can determine when and where each member may use his or her gun and where to store it. thus, you may never get to see your weapon, at least until the governor decides that the best strategy to re-take washington is to have you charge the washington monument with guns blazing. most important, if anyone possesses a gun other than through this well-regulated militia plan, the idea is to slap him or her in the hoosgow, and for a long time. This will work, if anyone has the guts to clean up dodge city america. The following is the proposed text of the uniform well-regulated militia act. preamble The legislature recognizes that the proliferation of arms among its citizenry has endangered life and limb among those citizens, as well as other residents of, and visitors to, this state. the legislature does recognize that the second amendment to the constitution of the united states bars the united states from infringing upon the right of the people of the united states to keep and bear arms. however, the legislature also recognizes that this prohibition of the united states constitution does not apply to the state of the union; rather, the states have the right to control the right to keep and bear arms through a “well-regulated militia.” the legislature has therefore determined to attempt to keep life and limb in this state safer by regulating the rights of persons to keep and bear arms in this state through its militia, the national guard. it is the intention of the legislature that no person in this state shall keep or bear arms other than in compliance with this act. sec. 1A. no person who is neither a citizen of this state nor has declared his or her intention to become a citizen of this state may keep or bear arms in this state. any such person who is, or intends to be, a citizen of this state shall be known under this act as a “qualified-potential arms owner.” only a natural person may be a qualified-potential arms owner. [too tired to edit out all the upper case from this point onward] Sec. 1B. No Qualified-Potential Keeper and Bearer of Arms may actually own or possess arms in this State except as provided in this Act. Any Qualified-Potential Arms Owner who actually owns or possesses arms in this State shall be known under this Act as an “Arms Owner.” Sec. 1C. No Arms Owner may own any type of arms other than those prescribed by the Commander-in-Chief and the Adjutant General of this State in the customary chain of command. It is the intent of the Legislature that such arms be as uniform as possible in keeping with the proper defense of this State and the United States. Sec. 1D. The Commander-in-Chief and the Adjutant General, through orders given in the customary chain of command, shall implement a system whereby the State is aware at all times of each individual arm issued to and possessed by Arms Owners. Without limitation, each Arms Owner shall at all times be responsible for keeping the National Guard informed of the location and condition of the arms issued to him or her. The Commander-in-Chief and the Adjutant General may order, from time to time and/or at all times, that any and/or all arms in this State be stored at a specific location or locations. Beginning 1 year after the date hereof, and concluding as quickly as possible thereafter, all arms not authorized hereby to be in the possession of an Arms Owner shall be condemned at market value and taken into the possession of the National Guard under orders prescribed by the Commander-in-Chief and the Adjutant General in the customary chain of command. Sec. 2A. During the time they are Arms Owners in this State, all such persons are permanent Members of the National Guard. Sec. 2B. During the time they are Members of the National Guard, each Arms Owner shall serve six weeks in active duty in each calendar year. The dates of such active duty for each Arms Owner shall be established by the Commander-in-Chief and the Adjutant General through the customary chain of command. Each Arms Owner also shall be subject to call to active duty the same as any other member of the National Guard. Any Arms Owner who avoids or schemes to avoid his or her duty to serve six weeks of active duty in each calendar year or any other call to active duty by moving from state to state, or otherwise, shall be subject to serving two years of continuous active service and/or forfeiture of his or her right to keep and/or bear arms for the remainder of his or her natural life, or both, and/or fine, confinement, or punishment under the military laws of this State the same as any other military personnel who is absent without leave. Sec.2C. During the annual six weeks’ active duty in each calendar year, and in addition to any other military training and/or duties prescribed by the Commander-in-Chief and the Adjutant General in the customary chain of command, each Arms Owner shall receive training in marksmanship, arms maintenance, the federal and state Constitutions, citizenship, responsible use of arms, and state and federal criminal law relating to arms. Sec. 2D. During such time as they are on active duty, each Arms Owner shall receive compensation at the rate of $75 per week. Sec. 3A. Each Arms Owner is responsible to keep his or her arms from any person (a) who is not authorized to keep and/or bear them and (b) who is not authorized by the National Guard to possess the particular arm in question. If any civilian or military crime is committed with the arm issued to an Arms Owner by a person or persons other than the Arms Owner, then upon conviction by a general court martial, and in addition to any other sentence for the underlying crime or crimes committed with the arm, the responsible Arms Owner may be sentenced to up to 10 years in the county jail, and if committed by the Arms owner, up to 25 years. ___________________ This solution ought to satisfy everybody. The NRA can have its guns, the States’ Righters can have their States’ Rights, the Liberals can have their socially active domestic training program, and everyone can have safer streets. Moreover, when Hitler takes over Washington, maybe we can even beat him. i'm a liberal, but we don't need posner-inspired prattling to un-do the constitution; it says what it says and there are ways of accomplishing liberal goals within what it says--fairly and without distortion. i would have though liberals would have learned their lesson when they used the "commerce clause" as a civil rights law. my gosh, why didn't they just point to the post civil war amendments and say, "no more discrimination--it's in the constitution" for goodness sake. in any event, you've just read the truth about the second amendment, something avoided by both sides in the argument. keevan d. morgan, chicago author, "why you are a liberal--or should be" (2004)

- keevan d. morgan

August 18, 2008 at 7:03pm

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Judge Posner, With all due respect, the point of the Second Amendment is that the Federal Government - cannot infringe on the right of private individuals to keep and bear arms. It can be read as a prohibition on Federal power rather than as a right conferred upon states and individuals. It's is not about judicial theories. It's about prohibiting the Federal Government from doing certain things.

- Marc Ellis

August 18, 2008 at 7:27pm

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Posner's comments on militia's are simply bizarre. They are not expected to keep arms at home? Lets keep them at an easily overrun facility so they can be lost while we assemble (this was before cell phones and a touch before radar)? They are keeping someone else's weapons at their house? This kind of logic comes out of children who missed allot of class and simply does not belong in a real discussion of the second amendment.

- Dean Gilbert

August 18, 2008 at 7:45pm

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If originalism means freezing the interpretation of the Bill of Rights at the time it was written, isn't the Second Amendment limited to the "arms" available at that time? :)

- Eben Spinoza

August 18, 2008 at 7:50pm

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Robert: Most of these comments are snide and fatuous. They are marked by bald assertion and betray a total unfamiliarity with legal or historical analysis and only a highly selective familiarity with the relevant legal and historical materials. The analyses they do attempt -- e.g., the book example above -- are pretty pathetic. Their aggressiveness and their number are clues to why those who are (to my mind) weirdly obsessed with "gun rights" have won the day. That doesn't make them right or Posner wrong. It is patently obvious that this group would disregard any evidence or arguments deployed against their position -- including the plain words of the amendment itself -- and pounce on any sliver they can find, however credible or misunderstood, to support their position. Many of the comments unwittingly show why their side should have lost. The amendment, as some concede, has to do with a time-specific preoccupation with the ability to resist federal tyranny via threat of armed rebellion and a related distrust of standing armies -- concerns which, if you hold them seriously today, mark you as crackpot. (We have a standing army now, of course, and the notion of an armed citizenry as a check on government power is not only archaic and silly but downright dangerous.) I have read some serious scholarship on the Second Amendment, by those who are ambivalent on the subject and are more prone to dispute the long-held prevailing view that the amendment does not guarantee a right to possess or carry a handgun as an every-day defense against criminals than to reinforce it, and it seems to me that the history comes down more on Posner's side than Scalia's. Limiting what type of gun you may own or carry in a given community does not strike me as so serious an invasion of personal liberty -- or violation of the letter or the spirit of the constitution or what we might even more broadly think of as constitutional values -- that the matter should be removed from the realm of the democratic process and varied state and local decision. Indeed, it strikes me as a pretty obvious subject of regulation for the public safety, a concept that is in perfect harmony with the Second Amendment and the constitution generally. But, the wrong-headed are often more hysterical than the sensible, and hysteria tends to win in the end. This is a case in point, and the comments do nothing more than illustrate that.

- jhildner

August 18, 2008 at 7:53pm

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The phrase 'well-regulated' had a very specific meaning at the time the Constitution was written, according to the scholarship of Brian T. Halonen: "The meaning of the phrase "well-regulated" in the 2nd amendment From: Brian T. Halonen The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment: 1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations." 1714: "The practice of all well-regulated courts of justice in the world." 1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial." 1848: "A remissness for which I am sure every well-regulated person will blame the Mayor." 1862: "It appeared to her well-regulated mind, like a clandestine proceeding." 1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city." The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it."

- sagi

August 18, 2008 at 7:55pm

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Are you an "Originalist", a liar, or just plain stupid? If you had done any research at all, you would know that the term "militia" had nothing to do with the state, but consisted of all able bodied men from 18 to 45. There are multiple sources from the founding fathers for that definition. If you knew that, you're a liar by trying to mislead your readers. You should also have discovered that the term "well regulated" at that time meant "well trained, capable" I had nothing to do with direction or control as it does with today's state militia. A sorry state of affairs when something this misleading is printed in a public medium.

- BartB

August 18, 2008 at 8:30pm

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Oh come on. Does anyone here with a straight face think letting people carry hand guns is a useful protection against enemies domestic or external? The amendment referred to military weaponry, which once reasonably could be kept in private homes but now cannot. For 200 years the courts have agreed with this position, which has the virtue both of tradition and common sense. This isn't a dumb group...a lot of you must have qualified with an assault rifle. That said, it surely never occurred to the founding fathers to guarantee the right to keep weapons, any more than it would have occurred to them to guarantee the right to keep axes. And on the gripping hand...why do you want a hand gun anyway? You'll either kill your neighbor's dog, miss completely, or have it taken away. Get a shotgun. And if you really want to protect the country and play with things that go "bang," join the National Guard. They need you.

- AlanK

August 18, 2008 at 8:39pm

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totally missed the point didn't you posner. While the second amendment has long been seen as ambiguous you write in this column to show us not an analysis but your own bias leanings. Consider two things please: 1.why was a comma used to separate the text about a militia and the right to arms; and 2: do you really think tjats what they intended? No guns? Really? Because if so you are very very stupid.

- shawn

August 18, 2008 at 9:02pm

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I tried reading your article, but since you are wrong in the first 2 paragraphs, I stopped, so I could respond. What the second amendment says, in plain lauguage is: "Since the Government must have guns, the people have a right to guns as well". The plain reading is the correct reading. I never went to Law School, I guess you did, but it seems to not have taken very well. Scalia says I'm right and you Sir are wrong. Good Day.

- William Robertson

August 18, 2008 at 9:10pm

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Part of the problem, as noted by the majority opinion- in the infant United States, the militia was the “whole people” meaning males from the ages of 15-45 (varied by states). This was a fact for the drafters of the 2nd Amendment; they intended the right to be individual because in their reality all (male) individuals were part of the militia. They simply weren’t thinking outside of that box.

- Peter H

August 18, 2008 at 9:26pm

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No lenghty discussion necessary here. Since the authors misconstrued assumptions are the basis for argument. When the Constitution was written just about everyone had in their possession or household firearms. It was a matter of fact and life. Thank goodness the forefathers were clear headed enough to state the obvious. That an armed citizenry would not be held captive to its government. DUH!!!

- Greg

August 18, 2008 at 9:36pm

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I'm a lib dem, have been pro-gun control for decades, but no more. With the way our country is going, with the extremist left finally getting their way, the destruction of our democratic republic, by their alliance with the corporate elite, I realize that there might have been some legitimacy to the concerns even moderate republicans have had about the gun control movement. One of my husband's friends is a retired police officer and has offered to teach me how to fire and take care of a gun, and I've been thinking about it.

- Jenny

August 18, 2008 at 9:58pm

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Military weapons are "too dangerous" for home defense? That's a laugh and quite obviously written by the truly ignorant.

- Joseph L Cooke

August 18, 2008 at 10:24pm

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Not being a lawyer I cant come close to some of the fine analysis outlined in the comments to this disturbing op ed. However, as I rational sane thinking citizen, I am greatly concerned that someone of Pozner's profile could be so wrong. How can someone rise to such a position that requires non biased temperment be so flatly wrong? Could it be that decades of liberally minded education system have created such a person incapable of divorcing ones personal opinion with matters of historical fact?

- pacificaharry

August 18, 2008 at 10:44pm

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I concur with the comments above, that the Heller decision eviscerated the collective rights argument, eviscerated the militia-only argument, and eviscerated the denial of an inherent right to self defense. The emanations and penumbras upon which Roe is based, which elucidated a right to privacy so all-encompassing its ramifications are still being explored, have been criticized but have held up to multiple challenges. Heller, with a much stronger basis in history, precedent, law, political science, moral philosophy, and human behavior, is also the start, not the end, of a revolution in the law of self defense.

- Mike Owens

August 18, 2008 at 10:44pm

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Obfuscation. Totally and completely. A piece of tripe. "Judge," if you deem to call him that, harps on "militia" in the hopes that any freedom loving person would forget that the right to self defense goes beyond even the constitution. As Charleton Heston said "You can have my guns when you pry them from my cold dead hands." As if we are so sophisticated these days. Just look at Russia's recent actions in Georgia and tell me it isn't a jungle out there. And liberals trying to take away my guns, is to me, the same as Russia encroaching on my rights.

- Ray Esquivel

August 18, 2008 at 10:46pm

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"...the right of the people to keep and bear Arms shall not be infringed." It doesn't get any simpler than that. The Bill of Rights does not define what the Citizen can do, it defines what the Federal government can NOT do. Government exist solely to protect the rights that are from our Creator, they do not come from government, and can not be restricted by government. The 2nd Amendment clearly delineated that the Federal government has no authority to regulate the keeping or bearing of arms by the citizen. The Founding Fathers had no reason to fear an armed Citizenry, but they well knew that they could not trust any government. History has proven them brilliant beyond measure. The expression "well regulated" does not mean 'controlled by Federal regulations', it means that they should be well-trained and properly equipped. We have far too many Federal officers who do not comply with the Oath of Office that they are required by the COTUS to swear, as a precondition to exercising their office, to "...preserve, protect, and defend the COTUS against all enemies, foreign and domestic." Nowhere does the COTUS suggest, imply, or permit modern re-interpretation, or re-definition of it's terms. As for those politicians (legislative, judicial, and/or executive) who "reinterpret" the COTUS, it is time that they be removed from office for failure to perform their duties as defined by the COTUS.

- Frank D. Banta

August 18, 2008 at 10:49pm

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Here are some quotes for you: "To disarm the people - that was the best and most effectual way to enslave them." - George Mason I assume you believe that George Mason wanted to enslave the populace? "Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." - James Madison "I ask, sir, what is the militia? It is the whole people, except for few public officials." - George Mason "The Constitution shall never be construed....to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams Can you honestly tell me Sam Adams would support DC in this court case? "To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." - Richard Henry Lee, 1788 In all honesty I'm starting to look at anti-freedom judges as flat Earthers. They are simply disconnected with reality and believe whatever they want to believe.

- Culpeper

August 19, 2008 at 12:22am

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Folks, this is The New Republic! You didn't HONESTLY expect a writer here to actually AGREE with the Supreme Court's ruling that posession of handguns is a right, did you? For one thing, it is quite ridiculous to even THINK that banning handguns will decrease gun violence. The exact opposite has been proven to be true again and again and again. Just look at the places that enact gun control laws and watch the violence shoot up. This seems to baffle Liberals, but the answer is common sense. Heck, don't even believe me, find out what criminals fear most. When asked in prison, criminals almost to a person said "an armed victim." Not the police or the law, an armed victim. Why? Again, obvious: One has to call the police to get help from them, and if the criminal is armed and the victim is not, that cannot happen. It seems the writer of this column, like many liberals, thinks that criminals actually abide by laws. Well guess what? They don't. Thus, the term..."criminals." It ain't that hard, folks. But oh, if we only had ALL guns banned, how wonderful would THAT be? Uh...not very, considering the FINE FINE job the government is doing with illegal drugs, and keeping THOSE out of the hands of people! Ban guns and this country would see a bloodbath that its NEVER seen before, and hopefully never will. Americans have a right to be secure in their homes, and with no means to defend ourselves aside from an aluminum bat, we would otherwise have none. Of course, people like Joe DiMaggio might be able to hit a bullet with a bat in their prime but I'm no Joe. Too many liberals want only power, and banning guns is a critical step in that process. We ban guns, we might as well ban democracy. Google a town named Kennesaw, Georgia. In 1980, they enacted a law that isn't even enforced, but it says all citizens in the town must own a gun. Just own one. Any kind. There hasn't been a murder there in over 25 years.

- Kenneth Dye

August 19, 2008 at 5:20am

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Jeez, are the libs STILL whining about this? Read Heller and weep, judge, you're screwed, blued and tattooed. And now, off to the range.

- Robert T. Rex

August 19, 2008 at 7:18am

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It may be worth noting that the legislative history of the Second Amendment does not exactly support Judge Posner's interpretation. On August 24, 1789, after considerable debate, the House adopted the following version of the Second Amendment and sent it to the U.S. Senate: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person." The Senate deleted the words "composed of the body of the people" and the provision exempting conscientious objectors from service. More significantly for the present discussion, the Senate considered, but rejected, language that would have added the words "for the common defense" as part of the phrase "the right of the people to keep and bear arms (for the common defense) shall not be infringed." The language of the Second Amendment, as adopted September 9, read: "A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed." On September 22, 1789, the House voted to accept the changes made by the Senate, but the Amendment as finally entered into the House journal contained the additional words "necessary to": "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." If one is trying to figure out what the Framers had in mind (which I understand is not the final word in the interpretation of the Constitution), one must certainly take into account that they considered but rejected wording that would have tied the right created by the Amendment to common defense.

- JPKatz

August 19, 2008 at 9:32am

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This article is what passes for legal thinking in most left-leaning Law schools. Posner is just staying safely in the herd so he can he can move on up. I thought he might argue that certain states and cities have imposed restrictions on gun ownership historically so why is it unconstitutional now. But he didn't. Were guns ever banned in the late 1700's or early 1800's. How did the Supreme Court or the state court rule on this issue in those days??

- unamuno42

August 19, 2008 at 1:55pm

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JPKatz, You are correct to note that the legislative history of the 2nd Amendment specifically, and the Constitution in general, is very important in understanding what the Founders thought they wrote (as we try to discover it). I am very much of the mind that very few too no person alive at the time of the Ratification believed that the 2nd Amendment conferred merely a collective right. And I believe that any serious commentator who argues otherwise is guilty of intellectual dishonesty to conceal their true agenda. In other words, it would be impossible to draft an honest revisionist history of our Founding and its selective incorporation of English common law (and make no mistake- it was selective: see the difference between being a subject to the crown and being a citizen of a republic) and come to the conclusion that the right to keep and bear arms was a collective right rather than an individual right.

-

August 19, 2008 at 8:52pm

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Originalism doesn't necessarily mean freezing the interpretation of the Constitution; but it means not showing such contempt for the intended meaning that you utterly contradict it. Eben Spinoza asked whether originalism means we should limit it to the arms available at the time. Well, it would certainly be an improvement if I could legally walk the streets of Manhattan wearing a brace of loaded double-barreled flintlock pistols for use against muggers. However, the intended meaning was that the people should have the same weapons as do agents of the government. That doesn't mean we need nuclear weapons -- only the army has them and Posse Comitatus forbids the government from using the army for domestic police work. So a good rule of thumb is that the 2nd Amendment protects, essentially, the types of weapons used by the government in domestic law enforcement.

- fsilber

August 19, 2008 at 9:16pm

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Jhildner, indeed, some of these comments are deservedly derogatory, but fatuous-you must have a very high opinion of youself, for you, posner and jimmy the one seem to be the only dilletantes arrogant enough to embarrass yourself with specious drivel and incoherent quill-driving in defending an indefensible position. When you attempt to circumscribe and infringe a basic human right, you paint yourself a National Socialist, and you set yourself up as precisely the type of enemy Thomas Jefferson (et alles) warned us against, i.e. that a Government which can give its people everything they may want, is also powerful enough to take away everything they have. Justice Scalia clearly understands the limits of judicial power and the purpose of the 2nd Amendment as the ultimate guarantor of our freedoms. That is why 'we the people' will never relent in our demand for adherence to the very clear Original intent of our founders in this regard. Those of you who think otherwise, and who go to great length and effort to undue our founders language and intent, better find a way to get more votes than me and my friends...and, should you then try to 'infringe' my individual right...you had best be damned careful what you ask for-as neither long history, nor contemporary history is on your side, and the 2nd Amendment remains my guarantee to ACT in defense of freedom against tyranny, be it judicial or otherwise.

- Mike deMayo

August 19, 2008 at 10:47pm

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Private ownership of "Arms" is also endorsed by the constitutional provision giving congress the power to issue letters of Marque and reprisal. This presupposes private ownership of cannon.

- Sesquiculus

August 19, 2008 at 10:54pm

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.. patently clear to many of us adhering to the militia interpretation that this was a political spin job, the headlines on ruling day should've read 'Supreme Court successful in subverting the 2ndAmendment'. ... What scalia & his gang of 5 did (metaphorically) was prostrate themselves before the nra & gun lobby, kiss their boots, turn their heads slightly & ask meekly 'will there be anything else, me lords?'. ......... ............................................... ............... (dang this run on sentencing format) ............. .... so how can rightwing gunnuts & gun gurus spin wm rawle's 'influential treatise'? They can fabricate that rawle's 'corollary consequent', to the well reg'd militia clause, was to indeed grant individual rkba rights in order to maintain the militia. This is about the only way I see for them to spin it, even tho this concurrently, perhaps unwittingly amongst this boards crowd, acknowledges that the 2ndA today is obsolete, since there is no well reg'd militia comprising all white males 17 - 45 (ok throw in all our freed blacks too, twas always the ultimate intent of our all wise founding fathers, wasn't it there gunnuts?) ................ here is wm rawle's complete report on 2ndA from his 'influential treatise' (accd'g to scalia), & note how the first part centers about the need for a regulated militia, complete with regulations, reasons, fears, & the only time he references 'the people' is to (later not here) remark on how congress cannot disarm them, ie congress disarming a state's militia(s) for political purpose perhaps. For congress to actually disarm the whole body of people, what would it do? send out federalized militias to every nook & corner of the state to confiscate? The state's militias would merely balk. --------- ---------- --------------- --------------- ------------------------ --------- Wm Rawle' 1826 report on 2ndA: .. while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of govt. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state govt is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

- Jimmy the One

August 20, 2008 at 8:49am

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unamuno wrote: "Were guns ever banned in the late 1700's or early 1800's. How did the Supreme Court or the state court rule on this issue in those days??" ........ .............. ............... ........... .......(answer): no reason to ban firearms then, they weren't causing the death toll then as they do now, & hadn't saturated america with firearms, maybe 1 firearm per 20 total people living in america then (including slaves & women & children) rather than nearly 1 gun per american today. White males 17 - 45 then comprised only ~18% of all americans living in the states (1790census), & this elite 18% were the ones entrusted with rkba. Firearms weren't kept loaded on the fireplace mantel, powder would dampen, like a precursor to the DC longgun law req'g them to be triggerlocked or safekept ........... .............. ............ ... .............. as far as later 'bans', ccw was generally tabu in western states: --- 1876Colo: The right of no person to keep and bear arms- shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. ---1875 Missouri: .. but nothing herein contained is intended to justify the practice of wearing concealed weapons. --- 1912 NMex: ..but nothing herein shall be held to permit the carrying of concealed weapons. --- 1879 Louis: A well regulated militia.. This shall not prevent the passage of laws to punish those who carry weapons concealed. --- 1891 Ky:..subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons. --- 1889 Montana:.. but nothing herein contained shall be held to permit the carrying of concealed weapons. ---- 1907 Okla:.. but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons. ---- 1978 Idaho: this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person ---- 1890 Mississ: , but the legislature may regulate or forbid carrying concealed weapons. ---- 1876 Texas: ..the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

- Jimmy the One

August 20, 2008 at 9:00am

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I did not get through all the comments. The ones I read miss the point. Posner's article is not about gun rights but is about judicial review. Posner recognizes that the central problem with judicial review of legislation is that judges impose their personal views. Posner's point is that judges appear to impose these views even when they claim to be strict constructionist. He appears then to be calling for a different type of review that would protect people who did not have access to the political process -- See Democracy and Distrust by John Hart Ely. Posner is not even purporting to state "the correct" history of gun rights in America.

- S. Forbes

August 20, 2008 at 11:50am

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If the 2nd Amendment to the Bill of Rights was intended to restrict the Federal Government's power to disarm either the States or its citizens, whether for militia or purely self defense reasons as most of the commentators here argue, that still does not confer on the Federal Government or the Supreme Court the power to prevent States and Cities from enacting gun control laws if they choose to do so in spite of state costitutional provisions which they may interpret differently, SO the more interesting question is when the States (and Cities a la Bloomberg) will wise up and significantly tighten up gun regulation. After all states can apparantly pass seat belt, motorcycle helmet to protect us from hurting ourselves and anti-smoking laws to protect us from second hand smoke in locations that no ones makes us go, is it really conceivable that states can't strictly regulate handguns and automatic weapons which have very limited utility in self defense (probably causing more harm to their owners than those who attack them) and periodically cause tragic mass killings not to mention the thousands of deaths and serious injuries in routine crimes.

- Elliott

August 20, 2008 at 12:26pm

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deMayo writes: "When you attempt to circumscribe and infringe a basic human right, you paint yourself a National Socialist, and you set yourself up as precisely the type of enemy Thomas Jefferson (et alles) warned us against" ............... .......... .............. .......... ........ (reply): .. thanks demayo, for demonstrating that rightwing cretinism is alive & well in america - I'm a nazi, hildner's a nazi, posner's a nazi, typical rightwing fabricated sleaze. .. if the supreme court had wanted to bestoy an individual rkba they should've created a new amendment, not subverted the original 2nd. Militia supporters stand for a proper interpretation of what was written, & what has been historical precedent, & what miller39 substantiated (& what gun lobby manipulated perversely);.. 2ndA has been twisted about by nra & gun lobby to this final supreme subversion in bush's waning hour, I am of the mind they got it in 11th hour to spite democrats rising approval & the fall from grace of republicans, one final spiteful maneuver from the mildly deranged egocentric scalia. He 'is' mildly deranged, thinks he is super intellect, super mind, whatever he says is gospel, legend in his own mind. ... the basic human right, demayo, is to self defense, self defense rights which had been around for centuries prior to 2ndA - 2ndA had nothing to do with prescribing an already preexisting right to self defense. There is no basic human right to possess a firearm, demayo, that is a granted one, & has generally been granted to provide for common defense. .. gunnuts are happy now, they can own real life military weaponry, without ever having to join a real live military, never have to salute anyone or take orders, just buy as many rifles & guns as they want & play god in their armed castle doctrine, chanting 'cold dead fingers' as they rock back a jack, & snicker ... Who needs the real 2nd Amendment to harness those assault rifles, when you can have scalia circumvent the regulations?

- Jimmy the One

August 20, 2008 at 2:41pm

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I believe Judge Posner's only "mistake" was using Heller as the example of his thesis about judicial restraint. While I agree with the decision in Heller (one can believe that states and municipalities do have leeway in deciding what constitutes reasonable regulation of firearm sales while still believing that *banning* such sales is unconstitutional), Posner's actual argument is pretty interesting -- and if you actually, golly gee, *read* the argument, it's awfully hard to call Judge Posner a stereotypical liberal. Anyone who knows anything about the fellow wouldn't call him that, of course, but... well. There's an awful lot of knees jerking here, all right, but they're not on the left. This comment thread is by and large a good reminder of why, despite generally supporting gun rights, I wouldn't want to be trapped in an elevator with all too many gun rights advocates.

- Watts

August 21, 2008 at 2:27am

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We should take the preamble to the 2nd amendment far more seriously: "a well-regulated militia, being necessary to the security of a free state" means that we should arm and train as many adult citizens as possible, as Switzerland does. In Switzerland, practically every adult has a fully-automatic assault weapon and ammunition at home. Switzerland has remained free for hundreds of years. Let's do likewise.

- terrymac

August 21, 2008 at 3:55pm

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After having re-read Federalist Paper #46 I stand by my earlier comments. What the Constitution and the Bill of Rights do is place limits on our government. In FP #46 Madison talks of our government being the trustee of “the people”. That in the Second Amendment it speaks of a well regulated militia does not take away the right of “the people” to keep and bear arms whether in a militia or not. One must remember that when the Bill of Rights was written all of "the people" were considered to be members of their local militia. As such it was the duty of “the people” to own and be proficient in the use of a gun. Now that most people are no longer members of militias does not change the meaning of the words "the people" as used in the Bill of Rights. When the words "the people" are used in the First, Fourth, Ninth, and Tenth Amendments they have the same meaning as they do in the Second Amendment. To believe otherwise requires verbal gymnastics that Madison and those who helped him write our Constitution and Bill of Rights did not engage in. Only those who wish to disarm "the people" engage in those verbal gymnastics. Because I am armed and proficient in the use of my guns I am a member of a well regulated militia. All who are armed and proficient in the use of their guns are members of a "well regulated militia." A self regulated militia perhaps but one that Madison would agree is well regulated.

- Bryan Bjornson

August 22, 2008 at 3:04am

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“Militias” by their nature are not professional. Nor do they meet for training often enough for the members to maintain their skills without practicing in their own time. Militias practices marching and maneuvering in occasional communal exercises but people were expected to learn marksmanship at home. You're statement that allowing guns at home would reduce the effectiveness of militias is simply wrong and makes me doubt you know much at all about how early American militias actually functioned.

- libarbarian

August 22, 2008 at 10:35am

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Do you even know who Posner is? Have you spoken with the man or read his work? He's easily one of the top five living jurisprudential thinkers in the United States of America. He may know law intimately but he obviously doesn't know much about guns or the history of their use.

- libarbarian

August 22, 2008 at 10:57am

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Posner is the Judge of choice for gun grabbers, so don't expect fair and balanced from his pen.

- Wigger

August 22, 2008 at 6:23pm

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Though agreeing with gun rights supporters that the Second Amendment prohibits Federal gun bans, I also agree with Elliot (#87/89) that individual States have substantial powers to regulate their own "militias," whether to disarm them (as NY has allowed NYC to do), or to rely on them to uphold the Fourth Amendment against "unreasonable searches and seizures" by criminals. The "Heller" decision has not really addressed States rights. Let the States continue to experiment. Much was learned, for example, in 1987 when Florida required issue of concealed-carry permits to anyone able to pass a background check. Gun banners predicted a bloodbath, but murder rates declined, as predicted by gun rights advocates: the sort of people who can pass a background check are not the people who commit violent crimes. Gun-rights States should not be gainsayed by Congress, by the President, by Federal Courts, or by courts of other States.

- Hugo S. Cunningham

August 22, 2008 at 11:29pm

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Judge Posner professes not to understand why Constitutional protection of gun ownership is clarified only today, not "thirty years ago... or for that matter a hundred years ago." The answer is that only since the 1960s has there been a serious political movement to nullify that right on a Federal basis. Some national "gun control" measures were reasonable, eg banning mail-order gun sales after the assassination of JFK. Others, however, are mere red-herrings, promoted by social-democrats who, like their British counterparts, are uncomfortable discussing *effective* anti-crime measures and wish to change the subject. In response to this first-time threat of national prohibition, a multi-pronged response arose: (1) academic criminology, debunking prohibitionist claims with solid evidence, (2) political organizing, and (3) a legal counteroffensive.

- Hugo S. Cunningham

August 22, 2008 at 11:40pm

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Judge Posner asserts without proof that militia arms kept in armories are more efficient than arms kept at home by the people. But those who ratified the Second Amendment were acutely aware of the opening battle of the Revolutionary War, caused by attempted British seizure of a rebel armory at Concord MA. Centralized armories are better for foreign wars, but conveniently consolidated targets for domestic tyrants.

- Hugo S. Cunningham

August 22, 2008 at 11:50pm

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hugh conningham writes: .. in 1987 when Florida required issue of concealed-carry permits to anyone able to pass a background check. Gun banners predicted a bloodbath, but murder rates declined,.... ........... ................................ ......... (reply): hugh conningham makes a typical righttwing specious claim, specious bragadoccio. Florida enabled shall issue ccw in 1987 & the next 5 years florida's violent crime rate increased 17%, & only then, ALONG WITH MOST ALL of THE REST OF THE COUNTRY, florida's violent crime rate started to decline. Gun Control States also experienced declines & tending at a more rapid rate. Florida still REMAINED THE STATE WITH THE HIGHEST VIOLENT CRIME RATE IN THE USA for almost the next couple decades after enabling shall issue ccw. How in the world were 'pro gun advocates' right in their predictions if florida stayed at number one in violent crime rate? .... florida's murder totals actually ROSE for 3 years after shall issue ccw enacted, thus hugh told a LIE, altho her murder rate stayed the same for 2 years & then started to decline. ..... also it should be noted that when shall issue ccw was enacted in montana in 1991, montana's violent crime rate eventually tripled it's 1991 rate, now about double, but shall issue ccw had the reverse affect in montana. Same as with both dakotas, their violent crime rates have near doubled since enabling shall issue ccw (altho still very low), & west va's viol crime rate also has about doubled since si-ccw, & pennsylvania's violcrime rate rose 27% & has not one year fallen below it's 1989 start year. All stricter gun control states have seen drops in violent crime rates since the early 90's, most dramatic drops as NY 60%, excepting hawaii which has remained at parity, with her relatively low viol crime rate. .... hugh conningham only supports the premise, MORE GUNS, MORE LIES.

- Jimmy the One

August 27, 2008 at 9:04am

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terrymac writes: In Switzerland, practically every adult has a fully-automatic assault weapon and ammunition at home. Switzerland has remained free for hundreds of years.... .......... ........... ........... ......... ...... phfft, what lies, what nonsense. America has remained free for hundreds of years, & that was with the militia interpretation of 2ndA... terrymac is apparently under some misconception about the swiss. Nearly every adult does NOT have an assault rifle, that would be physically impossible since there are ~8 million swiss & only ~3 or 4 million guns. Terrymac should keep up with swiss law, last year or so they passed a law mandating ammunition for those assault rifles be kept in a federal armory, & not at home. They also are trying to pass a law requiring those assault rifles be kept in the armory, due to serious breaches by some swiss, ranging from murder & suicide to robbery using those assault rifles. .... Swiss does not have shall issue concealed carry, you cannot carry concealed guns thru the streets, you must apply for a ccw permit & 'self defense' is not a valid reason to obtain one. ... swiss referendum for stricter gun control laws passed ~80% support near turn of century... permit is required to purchase. Terrymac adheres to some swiss myth, part & parcel of the overall 2nd Amendment Mythology, Armed Fantasy Doctrine..... America has ~275 million guns, Swtzland has ~4 million, or in other words the US has approx 275 million more guns than the swiss. To bring america's gun ratio down to swiss's US would need elimintate approx 150 million guns.

- Jimmy the One

August 27, 2008 at 9:16am

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¿is there no difference between a book and a gun?

- j. alfaro

August 27, 2008 at 1:47pm

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Not withstand the debate over gun procession and whether it is a fundamental human right this type of debate on the US constitution intrigues me. Growing up in Britain a parliamentary democracy with an unwritten constitution, governments draft and pass laws and the courts interpret the law, which becomes case law. There may be continuing refinement of that interpretation for special cases or new circumstances but the original interpretation is rarely if ever revisited. If the law is inadequate or the interpretation is not what’s desired then the government changes the law. Whilst I would imagine that the US has a similar process what is different is this constant reference back to a 200 hundred plus year old document. The debate sounds similar to that over the bibles passages where the interpretation is dependent the participant’s worldview. Is it more than a coincidence that one of the world’s most religious societies makes it law with a debate framed by a theological tone?

- Tim BL

August 28, 2008 at 9:20am

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Not withstand the debate over gun procession and whether it is a fundamental human right this type of debate on the US constitution intrigues me. Growing up in Britain a parliamentary democracy with an unwritten constitution, governments draft and pass laws and the courts interpret the law, which becomes case law. There may be continuing refinement of that interpretation for special cases or new circumstances but the original interpretation is rarely if ever revisited. If the law is inadequate or the interpretation is not what’s desired then the government changes the law. Whilst I would imagine that the US has a similar process what is different is this constant reference back to a 200 hundred plus year old document. The debate sounds similar to that over the bibles passages where the interpretation is dependent the participant’s worldview. Is it more than a coincidence that one of the world’s most religious societies makes it law with a debate framed by a theological tone?

- Tim BL

August 28, 2008 at 9:30am

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Judge Posner ignores the obvious. The Bill of Rights has two dimensions. First, it enumerates a set of rights that the Constitution protects. In Amendments I, II, IV, V, IX, and X, it specifically guarantees rights to the 'People' (in amendment V the singular 'Person' is used. What Judge Posner is saying that there is a difference between the "People" referenced in In Amendments I, IV, V, IX, and X, and those in Amendment II. The authors of the Constitution were very good lawyers and writers, and had they intended such a distinction, they surely would have made it plain. What the founders did do that makes Amendment II different from the others is to give that Amendment a preamble. Preambles were and are common stylistic devices in formal legislative and quasi-legislative bodies; Most laws passed by legislatures begin with a list of "Whereases" which define why the law is necessary, and then proceed to define what the law is. So, the Constitution itself has a preamble which begins "We, the People" - nb not "We, the militia". The operative part of Amendment II vouches safe "the right of the People to keep and bear arms". Moreover, it promises not to "infringe" on that right. This protection is less strenuous than in Amendment I ("Congress shall make no law"), but suggests, as Justice Scalia notes that a certain amount of regulation is permissable (e.g. no criminals, children, or insane persons are extended the right) but also suggests that elimination of entire classes of widely used firearms violates the amendment. Currently, there are some 40,000 Federal, State, County and City laws regulating firearms, and taken as a whole, they represent a massive infringement of the 2nd Amendment. All legislation that limits fundamental Constitutional rights is subject to what is called the "Strict Scrutiny Test". Strict scrutiny is the most stringent standard of judicial review used by United States courts reviewing federal law. Along with the lower standards of rational basis review and intermediate scrutiny, strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the liberty provision of the 14th Amendment; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. To pass strict scrutiny, the law or policy must satisfy three prongs: First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong. Most of the tens-of-thousands of laws on the books which regulate every aspect of firearms including their manufacture, transfer, sale, and use violate one or more aspects of Strict Scrutiny Test. It will take years to sort this out, but, at last, we are on our way.

- James Harold Fink

September 17, 2008 at 9:10am

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I'd respectfully refer Judge Posner to the text of the Militia Act of 1792. It explictly requires the militia to provide their own firearms at their own expense. It would seem a stretch to think these weapons were not maintained in the home between drills or call ups. "That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack."

- dvc

October 21, 2008 at 1:19pm

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"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." "In other words: since a militia, provided that it is well regulated, is a very good thing for a free state to have, the federal government must not be allowed to castrate it by forbidding the people of the United States to possess weapons. For then the militia would have no weapons, and an unarmed militia is an oxymoron." No. Over the years, I've gone back and forth about the efficacy and ethics of gun-control laws. I've seen it, mentally and emotionally, from many sides, and concluded that there are many different effective, ethical approaches to the interplay of laws and gun ownership, depending on many factors. Efficacy and ethics aside, we are left with a simple question of the meaning of a plain English sentence, even if it is oddly punctuated and of sub-standard legal clarity. The legal-clarity problem is that the sentence initially brings up some reasoning that is entirely unnecessary for the main clause to stand on its own. If I say "Because I like orange juice a lot (and especially in the morning), I require orange juice to be available to me all day and all night", everything before the comma does nothing to change the basic requirement described after the comma. It doesn't matter whether I like orange juice at all; and it doesn't matter whether I especially like it in the morning, in the evening, or never: we still have "I require orange juice to be available to me all day and all night": there is the rule, plain and simple. And let's address vocabulary. The Founders used the word "militia" in the sentence: so we know that they were capable of using it when they meant to discuss the militia. They also used the word "people": we know they were capable of using it when they wanted to discuss the people. So there's no question that they had both words at their disposal. These were bright men, who put together magnificent plans and forged a lasting republic from the colonies of a monarchy: I bet there were smart enough to say "militia" when they meant "militia", and "the people" when they meant "the people". (Maybe we should just have a new amendment, repealing the Second, devoid of any "reasoning" clause, and simply stating the limits of the people's old right to keep and bear arms.)

- Smadaf

October 21, 2008 at 1:47pm

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Judge Posner's assertion is bull crap! he is just rationalizing his opinion because the decision did not turn out the way he thought it should! The majority of the SCOTUS ruled based on the historical context of the 2A, as they should, and not on some sense of rewriting the constitution on-the-fly for the purpose of social engineering based on a judge's idiologically based idea of what a civilized society is! The Founding Fathers made it quite clear the 2A was an individual right and this was demonstrated to the satisfaction of majority of SCOTUS. The so-called "right to a militia" or "collective right" view was a fiction invented and then proclaimed long and loud starting about 40 years ago. "A well regulated militia being necessary to the preservation of a free state, the right of the people to keep and bear arms shall not be infringed." Think archaic English (like Shakespeare). The English of the 1790s today would be correctly read as: "Because a well trained and equipped military eligible civilian population is necessary for keeping the nation free, the right of citizens to own and carry firearms shall not be infringed." This interpretation is what the SCOTUS endorsed, based on a large amount of evidence as detailed in the majority of the amicus briefs and in the opinion.

- rspock

October 21, 2008 at 6:52pm

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I agreed completely with the Heller decision. And I disagree completely with Judge Posner's interpretation of the 2nd Amendment's scope. With that said, my reason for feeling that way is because I firmly believe that every person SHOULD have a right to bear arms. It is NOT because Judge Posner's reasoning in this article does not have considerable merit in terms of the constitutional theory employed by Justice Scalia. Judge Posner is, in my opinion, the most brilliant thinker I have ever encountered or read. His general thesis throughout all of his books and writings on the subject of constitutional theorizing is that formulating ANY formalistic theory on a jumbled up collection of clauses that cover completely separate and distinct substantive topics (aka our Constitution) is impossible and Scalia, the 2nd most formalistic judge (aka "bottom-up) on the Court, emphatically bases his opinion on the "original meaning" of a clause that was indeed written in an era when militias were clearly the main purpose of its inclusion. I interpret the 2nd Amendment's ambiguities to run in favor of protecting a person's right to bear arms because that is the interpretive theory I have for THAT PARTICULAR CLAUSE. Basing the opinion on "original meaning"--NOT intent mind you b/c Justice Scalia forcibly believes that ONLY THE TEXT MATTERS--was silly and unnecessary in this context namely b/c any REASONABLE reading of the 2nd Amendment from the era when it was written would have come out as Judge Posner articulates in this article. As to the person claiming Judge Posner has helped bring socialism to this country: you, sir, have never been more mistaken. Judge Posner is a champion of economic freedom and wealth maximization. His economic analysis of ALL realms of law have allowed many young lawyers to see past the rigid socialistic dogma that has polluted our nation's law schools for far too long. God bless you Judge Posner. And I agree to disagree with you on this article.

- Z.Alsobrook

April 16, 2009 at 4:18am

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