Days before Newtown, the Seventh Circuit extended the Second Amendment beyond even the Supreme Court's decisions.
Cody Miller, 9, fires a machine gun with help from a range worker in West Point, Kentucky. (Aaron Bernstein/Reuters)
Judge Richard Posner of the Seventh Circuit has never minded being the bad guy in public debate. He once suggested that adoption law could be improved by selling babies to the highest bidder. After September 11, he publicly defended the internment of Japanese and Japanese Americans during World War II.
But not even a contrarian like Posner could have imagined that he would issue a pro-gun opinion so radical it makes Justice Scalia look timid -- in the same week as the Newtown massacre of 20 children and six adults by an intruder with a gun.
Posner's opinon in the new case Moore v. Madigan contains the most bizarre line I have read in a federal-court opinion since, well, ever. The issue is whether the Supreme Court's two recent gun-rights decisions, Heller v. District of Columbia and McDonald v. City of Chicago, create a right to armed self-defense outside the home. The Court's opinions said they did not; but to Posner, that's silly: "To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right -- a right to kill a houseguest who, in a fit of aesthetic fury, tries to slash your copy of Norman Rockwell's painting, Santa with Elves."
People may be dying in the streets, but to Posner, the case is a chance for shtick.
The Seventh Circuit case was a challenge to Illinois's statute -- one of the strictest in the country -- against carrying a loaded, accessible firearm anywhere outside the home. As noted, Heller and McDonald concerned the right to own a hand weapon in a private home. Posner has previously been critical of Heller, but in Moore he extends it far beyond its original result. He concludes that the Second Amendment right must extend beyond the home, because it's possible some people that carry guns might be able to defend themselves against attackers with guns. True, the statistical evidence of this is pretty thin, but Posner really doesn't care. "Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower," he reasons. There's some evidence that this may increase the severity of crime, if not the rate -- but that doesn't matter either: "the Supreme Court made clear in Heller that it wasn't going to make the right to bear arms depend on casualty counts."
Even though Posner rather casually changes the holding of Heller, he is right about that. Neither the Supreme Court nor the Seventh Circuit displays the slightest concern for the real-world effects of its decision. Instead, what matters is a kind of airless, abstract reasoning. To Justice Scalia, it is clothed in the garb of history; to Posner, it represents "pragmatism." In fact, that callous indifference to consequences -- ahistorical and unpragmatic -- disfigures both the Supreme Court's Second Amendment cases and reveals a flip attitude toward the problems of those who must live their lives outside federal courthouses surrounded by metal detectors and marshals.
More and more, the right wing of the federal judiciary is behaving like the nasty old uncle at the family dinner table, grumbling about how stupid young people are today. Why do they need medical care, or contraception, or protections from sexual violence, or anti-smoking efforts, or gun control? We didn't have any of that stuff when I was a kid, and look how great I turned out!
That avuncular growl is grating at the best of times. In a moment of national mourning, it is repellent.
Justice Scalia made his own set of headlines this week, mocking and belittling gay rights to a Princeton audience. Posner has recently made a specialty of needling Scalia, but the truth is the two judges are more alike than either would like to admit. And both of them might consider whether it's a good time to dial it back a bit.