It is rare that I find myself in agreement with prolific jurisprudential gadfly Judge Richard Posner, though he is always interesting and provocative. Indeed, he is so prolific that I speculate there really is no one Richard Posner, but a basement full of Posner scholar-elves who, like Santa’s helpers, grind out countless articles, reviews, decisions and books. But to my surprise, I do agree with his interesting critique, in a recent issue of The New Republic, of the United States Supreme Court’s decision in District of Columbia v. Heller, the recent gun control case.
The Second Amendment states that “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.” Before Heller, the Supreme Court ruled four times — in 1875, 1886, 1894 and 1939 — that the amendment restricts the national government’s powers over state militias, but does not assure people the personal right to bear arms. Even conservative jurists — the late Justices Lewis Powell and Warren Burger, for example — have said that the Second Amendment does not ban reasonable gun controls nor assure an individual right to bear arms. Despite those precedents, and the escalation of gun violence to shocking levels, gun advocates have effectively fought against all controls. Politicians who support modest, rational gun controls, which the majority of the public approves, have suffered for their advocacy.