When Reading an Appeals Court Opinion Leads You Astray

This post was started before Connecticut and while the political pressure changes, the basic points I think still hold up.  I don’t oppose conceal carry with training–I live in Missouri where it has been law for a few years now and it’s pretty much a non-issue for the average person.  Thus, I can’t really argue to deny people’s ability to carry legally because it makes some people feel icky.  However, the response to the 7th Circuit Decision by Posner is way out of whack with what I believe is a pretty clear middle finger Posner is waving at Scalia.

Posner has written on Heller in The New Republic and he’s incredibly harsh on the decision by the Supreme Court’s majority in that case:

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.”======

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.

Here is the key to me of what is behind Posner’s decision in the 7th Circuit.  Scalia made some broad claims that certainly reasonable restrictions are allowed that have historically existed and pointed to Miller where such distinctions were made.

Posner’s decision deals with distinctions then that are arbitrary according to the Supreme Court’s previous decision


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. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. 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. That is not self-defense, and this case like Heller and McDonald is just about self-defense.

Pure Posner right there

Continuing later

A blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would. In contrast,when a state bans guns merely in particular places, such as public schools , a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need. Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun. See also Ezell v. City of Chicago, supra, 651 F.3d at 708. And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill. Heller v. District of Columbia, supra, 554 U.S. at 626. Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.

It is not that all states but Illinois are indifferent to the dangers that widespread public carrying of gunsmay pose. Some may be. But others have decidedthat a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons rather than to ban public carriage altogether, as Illinois with its meager exceptions comes close to doing. Even jurisdictions like New York State, where officials have broad discretion to deny applications for gun permits, recognize that the interest in self-defense extends outside the home. There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states. If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.


Judge Wilkinson expressed concern in United Statesv. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), that“there may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation.The notion that ‘self-defense has to take place wherever [a] person happens to be,’ appears to us to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities…. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree” (citation omitted). Fair enough; but that “vast terra incognita” has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts, though we need not speculate on the limits that Illinois may in the interest of public safety constitutionally impose on the carrying of guns in public; it is enough that the limits it has imposed go too far.

That last bit is a shot at the Supreme Court and Scalia in particular.  As a lower court judge, Posner must follow the decisions in Heller and McDonald, but how to operationalize those decisions was completely avoided likely because it is a morass.  Scalia tried to act like simple common sense would solve these problems in Heller, but the reality is that without any test that can be applied usefully to determine what fits under the 2nd Amendment and what does not, there is going to be lawsuit after lawsuit after lawsuit.

The next step is for states with may issue conceal carry or very restrictive laws to be challenged and for the Supreme Court to define exactly how much the states can restrict carrying of firearms.  After that we get to fight over just about every public facility to figure out what is sensitive and what is not.  Then, or at the same time we get to litigate over the exact limits of the 2nd Amendment applies to firearms and any other weapons.  Can you carry a sword down the street?  A concealed knife?  A .50 caliber rifle?  Given incorporation has not happened until Heller none of these questions have been answered and everyone will have to be.  The way Scalia wrote Heller creates no guidance how any of it will work and Scalia just created a whole new area of the law they are going to have to define and redefine over and over and over again.

Grab the popcorn and laugh at their attempts.

After Connecticut I would expect Madigan to appeal and the Lege sit it out until the Supreme Court makes a decision.  Regardless that the shooting in Connecticut is only tangential relations to conceal carry, that’s not a distinction most will make.  How will the Supreme Court rule?  I tend to think they will overrule Posner simply because the alternative means a lot of legislating from the bench that either Kennedy or Roberts will want to do in figuring out how to decide exactly what kind of conceal carry legislation is permissible and what is not.  Further, if they uphold Posner’s decision, they will realize they not only will have to figure out conceal carry tests, but tests for every other kind of restriction and there is not an easy way to do that.

The simple reality is that the 2nd Amendment is not an absolute right to bear arms and to figure out where those limits are is difficult to say the least.  Of course, if you want to disagree and claim the 2nd Amendment is not absolute, I welcome your essay on why RPGs should be legal for civilians.  I’m sure that will be fascinating as you attempt to distinguish an absolute right from being absolute.