Judge Posner's criticism of Heller

One point that is often over looked is that Guard members are paid not by the states but by the Federal government. Therefore in this instance as well as many others it is not entirely independant of the Federal government as some claiming that it is the same as the state militia of long ago.

Is the good Judge Posner entirely unable to read the text of the contemporary statute defining the militia? Can't he read further how those militiamen were expected to arm themselves? He's simply defaulting to the tired old idea that the National Guard is the militia, so the Second Amendment must be moot.

I find this approach as absurd as Justice Stevens' assertion that he could not conclude that "over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons." That's precisely what the Bill of Rights was intended to do: limit the government.

I don't know who the guy is who commented on Posner's article (Alan Vanneman or something like that), but OUCH.

While I too find Judge Posner to be a generally astute and sensible man, I found it difficult to force myself to read this piece. In addition to seeming to believe that the National Guard constitutes the entire militia, he also seems to think it somehow meaningful to assert that the Second Amendment doesn't create a right to maintain private arms for hunting or self defense. That's right; it doesn't. Neither does the First Amendment create a right to free speech, peaceful assembly or free exercise of religion. He also asserts that it would be silly for the founders to have wanted individual militia members to keep their arms in their own homes, in case some other part of the militia should need additional arms at some other location. Much better, I suppose, to have them stored all in one central location for General Gage's convenience.

Awwww.. After this unrelated but excellent opinion a few years ago (my favorite bit is paragraph 15), I had him pegged as being rather libertarian-ish. Looks like that was just one of those "magnificent legal edifices" Kozinski was talking about in Silveira v. Lockyer.

/scratches Posner of the SCOTUS wish list

Sorry, I couldn't finish it. I am all out of patience for stupidity, intentional or otherwise.

Just another academic/judicial elitist.
He's always had money and security.
He'd have been a Tory in 1775.

I find the references to "law office history" most interesting. This phrase originated with Professor Cornell if I am not mistaken.

Essentially what Judge Posner states about historical arguments is that any historical information not coming from historians, all of whom he apparently views as disinterested, is without value and constitutes a snowjob. I suspect that he feels this way because he personally does not like the decision.

If Judge Posner actually thinks that historians are disinterested, perhaps he is interested in a bridge in Brooklyn. After all, historians are human.

Judge Posner would do well to read my History News Network article pointing out the numerous shortcomings of his so called "disinterested historians" in their Heller amicus brief. He is wrong about a great many other things as well.

The link for the History News Network article is here.

What is remarkable about the "law office history" remarks is that Posner, a legal scholar, conspicuously does not discuss the only caselaw that would prove/disprove his militia-conditional hypothesis, that is militia caselaw. You can't prove a militia theory by reference to gun possession cases, you have to prove it with militia cases. If Posner has a militia theory, he owes it to his audience to justify it by reference to militia law.

He does not, because he cannot. The militia caselaw flatly contradicts his militia theory. There is no 2nd Am limit in militia law. The only federal law ever struck down as an unconstitutional interference with the state militia was Lincoln's draft, enjoined by a PA state court, and that decision was overturned in weeks.

Collectivists had an offensive and a defensive position: their offense was to attack the RKBA both via originalism and via gun caselaw. Their claimed defensive position was the "collective" right, which they defended by reference to originalism . . . but never by reference to militia caselaw. They were, and are, hugely vulnerable on the militia-law position they claim to defend. But nobody ever attacks them there, nobody ever confronts them with militia caselaw and forces them to articulate a coherent position and support it with militia law cases. Instead we are trapped in an endless argument over the validity of the RKBA position vis a vis originalism.

We should be arguing about the validity of the collectivist position vis a vis militia law. That would be taking the fight to them, rather than letting them bring the fight to us.

JNH

This was an amazingly poor piece by Posner. Ignoring a rather large body of scholarship so cavalierly isn't the Posner I've read in the past.

This piece was quite the epitome of bad reasoning.

1. National Guards are the constituted militia spoken of in the Second amendment. They were not in existence until the 1900's. How can they be the militia when in the 1700's they didn't exist?

2. The idea of someone not keeping their arms at home, but in a storage facility shows that they do not own their arms? This absurd reasoning was ridiculous. The use of "private arms" in the function of militias is well documented. Indeed it was a privately manned militia that was "funded by merchant contributions and manned by Boston college boys" (Kramnic, I.(1987) The Federalist Papers)to take down Shay's Rebellion in Massachusetts!

3.But obviously the Framers did not mean to confer even a prima facie constitutional right to possess guns on ....criminals....

The answer to that question was yes. There were those with criminal records who served in the militia. Even today there are those with criminal records that serve with the National Guard. So if Criminals can serve in those capacities with governmental authority, why would the founders look to strip them of privately owning arms? The issue of criminality has only been a recent issue when it comes to owning firearms. I could be wrong on this, but I would be hard pressed to find much second amendment case law in the 1800's that mentions criminal background as a precursor of denying arms.

This article was refuted before it was written.....

I basically stopped reading after he started going on about "conservatives do this" and "liberals do that". Once he started in on that, it became an political opinion piece by someone who happens to be a judge.

ATL,

Prior to the nfa there was almost no fed law to contest re the second. The first may have been a 1927 law banning the *mailing* of handguns.

The fed seemed to understand that the people would truck no interference with their right to own (keep and bear) guns.

In 1934 the fed again exercised it muscle with the nfa for the safety of the people and law enforcement in the face of *criminals* using machine guns. Of course as with near every gun law enacted the only folks inconvenienced have been the law abiding.

One of the Amicus briefs details fed law prior to 1934, I think the one by Cramer and Hardy.

Judge Posner, the Heller dissenters, the academic historians and law professers who influenced Justice Stevens, and all of the gun control advocates who have denied a private rights purpose for the Second Amendment and asserted there is a government controlling militia related purpose for the Second Amendment are wrong. There are several entirely different lines of research and sets of facts that conclusively indicate this. The early arms related caselaw, the militia related caselaw, and the period history of the Bill of Rights are three such separate fields of information that turn out to directly contradict what supporters of gun control believe (and I emphasize believe because the facts uniformly contradict their beliefs).

J. Norman Heath's research into the militia caselaw of the early republic clearly shows that the Second Amendment was never understood to protect state authority relative to the militia in court cases dealing with conflicting state and federal militia laws. Mr. Heath has a post above about this subject. His article, "Exposing the Second Amendment: Federal Preemption of State Militia Legislation," is a masterpiece that anyone interested in the Second Amendment, and especially those in the legal community, should be familiar with. It can be found in the Journal on Firearms & Public Policy, Vol. 14, Fall, 2002, published by the Second Amendment Foundation.

Clayton Cramer's research into the arms related caselaw of the early republic provides a similar result based on the specific field of caselaw he studied. His book, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, published by Greenwood Press in 1994, is another essential source of information that those interested in the Second Amendment should be familiar with, especially any in the legal field.

My own research into the period historical sources has produced extensive and conclusive information directly contradicting the beliefs of gun control advocates and their supporters regarding the militia powers related nexus of the Second Amendment. As just one example, there is a set of three 1788 George Mason documents (a letter, complete Bill of Rights, and partial list of amendments) that settle this matter conclusively all by themselves. These documents indicate that the Second Amendment was completed and included in a Bill of Rights by Mason and Virginia Antifederalists prior to development of any proposed militia powers related amendments. For those interested, my research has resulted in two books, The Origin of the Second Amendment, a docment collection, and a new definitive history of the Second Amendment, The Founders' View of the Right to Bear Arms.

It should be clear from Judge Posner's article that he was relying on the accuracy and authority of the "disinterested" historians for his views as was Justice Stevens. Most of those who signed the historians' and law professors' Heller amicus brief were relying on the accuracy and authority of the writer, Professor Bogus and a few of the historian signatories for their accuracy and authority. The entire gun control advocate belief structure is a massive house of cards with almost everyone relying on someone else as having the detailed information backing up the beliefs. The three different lines of research descibed above all prove that there is nothing backing up the controllers' beliefs. Everyone accepting their beliefs is relying on someone else in a complex and fallacious web of appeal to authority, and not one of the supposed authorities addresses the overwhelming evidence directly contradicting them.

Finally, let it not be forgotten that Judge Rheinehardt of the Ninth Circuit Court of Appeals thought it best to go back to his Silveira vs Lockyer decision and remove all the citations to the "disinterested" historian, Prof. Michael Bellesiles. BTW, it was Clayton Cramer who first started that ball rolling.

I think Mr. Posner well knows what the 2nd Amendment is about.
Any honest, intelligent, literate, well-read human would.
He won't ever admit it. Can't. Doesn't fit with the correct world view.
So we debate with his ilk unproductively presenting facts, history, literature, tradition, sense. Won't matter.
Can't be so because they don't want it to be.
So they make s**t up.

Pulitzer Prize winning historian Leonard W. Levy states the following:

Believing that the [second] amendment does not authorize an individual's right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights. The "right" to be a soldier does not make much sense. Life in the military is dangerous and lonely, and a constitutionally protected claim or entitlement to serve in uniform does not have to exist in order for individuals to enlist if they so choose. Moreover, the right to bear arms does not necessarily have a military connotation, because Pennsylvania, whose constitution of 1776 first used the phrase "the right to bear arms," did not even have a state militia. In Pennsylvania, therefore, the right to bear arms was devoid of military significance. Moreover, such significance need not necessarily be inferred even with respect to states that had militias. Bearing arms could mean having arms. Indeed, Blackstone's Commentaries spoke expressly of the "right to have arms." An individual could bear arms without being a soldier or militiaman. Leonard W. Levy, ORIGINS OF THE BILL OF RIGHTS 134-35 (Yale Univ. Press 1999).

O.K., time for just a little nitpicking.

Generally, I agree with most parts of the above quote from L.L. Levy. However, the statement that Pennsylvania's novel Declaration of Rights language "the people have a right to bear arms" was "devoid of military significance" needs to be questioned. If by "military significance" it only means that the government was not involved in any organized defensive activities relating to the right, this statement would be true, although it is a rather strange and confusing way of stating such a concept. If what is meant is that there were no organized defensive activities associated with the people having a right to bear arms, that statement would be incorrect.

When this "right to bear arms" that "the people have" was written into the 1776 Pennsylvania Declaration of Rights, the Revolution was underway, and the people of Pennsylvania were associated for defense in the exact equivalent of militia companies only referred to instead as associators because they were not under government control. This came about previously - immediately upon the news of hostilities having broken out over a year earlier on April 19, 1775, in Massachusetts. Pennsylvanians spontaneously formed companies, elected officers, and trained for mutual defense all across the colony. The descriptions of this activity by the Patriot leaders, who were meeting in Philadelphia as the Congress, are amazing and apparently completely forgotten in modern times. These activites were analougous to defensive military action under government control but without the government control because the orgnaized defensive action was directed against government officials and forces that were viewed as violating the constitution and Pennsylvanians' rights.

While there had never been a militia law in Pennsylvania like those in all the other colonies by the time of the Revolution, Pennsylvanians had on a number of notable occassions prior to the Revolution associated for mutual organized defense without any authorization or involvement of government. On only one prior occasion was there a law organizing such associators' activites, and that law was dissallowed by the British BECAUSE associations are voluntary and individuals decide whether to associate or not.

Thus, the language "that the people have a right to bear arms for the defence of themselves and the state" in the Pennsylvania Declaration of Rights most assuredly had "militiary significance" under any normal undersanding of that phrase. That military significance was directed at assuring an effective defense on the part of the people against possible unconstitutional actions of force by the new government in the future. Without their own suitable arms, such defensive actions would not have been possible and the Revolution would never have occurred.

What a shocking ignorance of history, especially his ignorace of the Founder's views that militiamen wouldn't keep arms in their homes. One need look no further than the Militia Act of 1792 to find out that the Founder meant exactly that.

Of course, any student of history know that militia's have always owned and kept their own weapons. It is one of the key features that distinguishes them from regular soldiers. Ever since the first Greek wife handed her husband the family arms and said "with it or on it" militias have owned their own weapons.