The Seventh Circuit's Big Chance to Redeem Itself on Gun Control

Conservative jurist Richard Posner made a joke out of a deadly serious case. Now his colleagues have an opportunity to put things right.

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Being a judge is a pretty good job, the comedian and philosopher Peter Cook once mused. "You're not troubled by falling coal, for one thing." Though Cook didn't mention it, another reason is that judges sometimes get do-overs. The Seventh Circuit last week got a chance to relieve itself of an embarrassing opinion by its most prominent member, former Chief Judge Richard Posner. The opportunity to "vacate" Posner's opinion in Moore v. Madigan, offered by the state of Illinois' petition for en banc review, is one the court should not miss.

That's true, in fact, even if a majority on the circuit believes that Posner got the result right in Moore. I think the decision is wrong on the merits; but even if it isn't, it is poorly reasoned and unforgivably flippant in its treatment of what is literally a life-and-death issue in every city and state in the nation.

In Moore, Posner, writing for a 2-1 majority, struck down, on Second Amendment grounds, Illinois's statute -- one of the strictest in the country -- against carrying a loaded, accessible firearm anywhere outside the home. Plaintiffs in Moore argued that the Supreme Court's recent decisions in Heller v. District of Columbia and McDonald v. City of Chicago mean that states can't restrict law-abiding citizens from carrying guns about town.

There's some logic to the proposition. If, as the Heller Court said, the Second Amendment creates a personal right to self-defense with a firearm, it's not clear what in the text confines that right to the home. On the other hand, both Heller and McDonald expressly confined their holdings to the right to possess a handgun in a private home for self-defense. It's a stretch from that home-based right to a general constitutional privilege to tote guns anywhere, and one that a court of appeals judge might feel reluctant to make.

Posner, however, took the leap. A few weeks ago, I sharply criticized the methodology and tone of Posner's opinion. The opinion resolves the question of guns in the home and outside it not with serious reasoning but with this nearly hebephrenic jape: "[The Second Amendment right] is not a property right -- a right to kill a house-guest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell's painting Santa with Elves."

The issue in Moore is nobody's joke. It governs, among other things, the carrying of firearms in Chicago, the nation's third-largest city and one where the murder rate is stubbornly high. Posner could not have foreseen that the opinion would come out only a few days before the massacre of 20 children in Newtown, Connecticut. But he should have had the wit and sensitivity to treat a serious issue seriously.

The Seventh Circuit is the first court of appeals to push the Second Amendment so far; both the Second and the Fourth Circuits have shown themselves unwilling to carry gun rights farther than dictated by the Supreme Court.

After my last column, some smart people (some of whom know Posner personally) took me to task, saying that I misunderstood the intentional irony of Posner's opinion. Soon after Heller was decided in 2008, Posner criticized the Court's reasoning -- and that critique now forms part of his highly publicized intellectual quarrel with Justice Antonin Scalia over Scalia's book (written with Brian Garner) Reading Law. Posner, my correspondents suggested, was simply giving the Supremes a taste of their own medicine, demonstrating that the jejune and over-broad language of Heller and McDonald admits no limiting principle.

Posner may be having us on. If so, however, his satiric intentions do not render the opinion defensible. It is one thing for him to persecute Scalia in the pages of the New Republic or the University of Chicago Law Review; it is another thing entirely to take the dispute into the Federal Reporter, 3d Series. The words that appear in that volume are not opinion pieces but opinions; not legal scholarship but law. Moore was a 2-1 decision; Posner had the option of joining a thoughtful dissent by Judge Anne Claire Williams. Authoring the broadest possible interpretation of Heller and McDonald, Posner fed red-meat rhetoric to gun-rights lawyers and fanatics, a breed that is notably immune to irony of any kind.

Posner has been on the bench now for more than 31 years. As an intellectual, he is sometimes provocative and original, and sometimes slapdash and offensive. His most attractive trait is his willingness to revise his previous opinions in light of new information. Less winning is his unwillingness to take others' views seriously.

Even Jove nods, and Posner ain't Jove. His colleagues on the Seventh Circuit might contribute a small lesson in humility by vacating the Moore opinion and substituting one written in a truly judicial voice. No matter which way the en banc review comes out, it can't be worse than what he has written.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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