Posted by Randy Barnett:
Posner & Easterbrook in Action During Oral Argument on Incorporation of a Right
to Arms:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243398293
Circuit Court Judge Bauer expresses his enjoyment of Judges Posner and
Easterbrook's roasting of Stephen Halbrook and Alan Gura's argument
that the Seventh Circuit is not bound by Supreme Court precedent
(Cruikshank & Presser) denying that the Second Amendment is applicable
to the states because these decisions failed to consider whether the
right to keep an bear arms is incorporated in the Due Process Clause
of the Fourteenth Amendment. At the invitation of Judge Easterbrook,
Gura eventually preserves his arguments on the merits and sits down.
While Judge Easterbrook also expresses his view that the
Slaughter-House Cases were wrongly decided, that and $2.25 will get
you a ride on the CTA. For his part, Judge Posner manifests his
general contempt for a constitutional right to arms--indeed he
volunteers his view that states may constitutionally abolish the
privilege of self-defense. He denies that there was any enthusiasm for
gun rights in 1868, and seems completely unaware of the copious
evidence that the Thirty-Ninth Congress was much concerned about
protecting the individual right to keep and bear arms as a means for
the freedman to protect themselves from violence. Here, for example,
is the wording of the Freedman Bureau's Act:
And be it further enacted, That in every State or district where
the ordinary course of judicial proceedings has been interrupted by
the rebellion . . . the right to make and enforce contracts, to
sue, be parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and to have full
and equal benefit of all laws and proceedings concerning personal
liberty, personal security, and the acquisition, enjoyment, and
disposition of estate, real and personal, including the
constitutional right to bear arms, shall be secured to and enjoyed
by all the citizens of such State or district without respect to
race or color, or previous condition of slavery.
So in this regard it is fortunate that Judge Posner will not be
reaching the merits of the Fourteenth Amendment claim--just as it was
fortuitous he was not on the DC Circuit to hear the Heller case. You
can listen to the argument [1]here.
References
1. http://www.ca7.uscourts.gov/tmp/NT197T10.mp3
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