Posner’s Complaint

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The New York Sun

Here’s a good litmus test that ought to be asked of every nominee for a judgeship: What part of the Constitution do you believe to be antiquated? The only right answer, by our lights, is the part about protecting the slave trade until 1808. The rest of the Constitution strikes us as worth keeping. The thought occurred to us while the dispatch in the latest number of the New Republic by Judge Richard Posner, who when not riding the Seventh Circuit of the United States Court of Appeals, writes quite a bit, and he thinks nothing at sneering in the public prints of the Supreme Court to which his own circuit is inferior.

In this latest dispatch Judge Posner’s main purpose is to denigrate the Second Amendment. He maintains that the Second Amendment is about giving states the right to keep militias. In his view, the Amendment doesn’t create a personal right for individuals to keep a gun. It’s an argument that has long been made by gun control advocates. It’s an argument that the Supreme Court rejected, five to four, in June, when it ruled in District of Columbia v. Heller that the amendment did speak to an individual right to own a gun. Griped Judge Posner to the New Republic’s readers: “There are few more antiquated constitutional provisions than the Second Amendment.”

It’s quite a thought, coming from a judge. After all, judges are not empowered — or, for that matter, any more qualified than anyone else — to say what the Constitution ought to say or even whether it is antiquated or ahead of its time. The power to write the constitution was delegated to the convention in Philadelphia and then the people, in ratifying the constitution, delegated the power to amend it — i.e., to decide what it should say — to the Congress and the state legislatures. No doubt Mr. Posner and a number of other judges reckon it was unfair that the judicial branch wasn’t given the power. Hence the griping in the public prints.


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