After reading the opinion from the 7th circuit, in between sessions of trying not to crash virtual helicopters, I sense a lot of the infleunce of Judge Posner in the opinion.Â Â Judge Posner wrote an unfavorable article bout Heller not too long after the decision, that appealed to the same arguments we see in the opinion:
The differences in attitudes toward private ownership of pistols across regions of the country and, outside the South, between urban and rural areas, are profound (mirroring the national diversity of views about gay marriage, and gay rights in general, as well as about abortion rights). A uniform rule is neither necessary nor appropriate. Yet that is what the Heller decision will produce if its rule is held applicable to the states as well as to the District of Columbia and other federal enclaves.
Heller gives short shrift to the values of federalism, and to the related values of cultural diversity, local preference, and social experimentation. A majority of Americans support gun rights. But if the District of Columbia (or Chicago or New York) wants to ban guns, why should the views of a national majority control?
But Heller made it pretty clear this wasn’t just about the right to own a gun, but protected a right to “use arms for the core lawful purpose of self-defense.”Â This isn’t really about the right to own a piece of recreational equipment, it’s about the right to protect one’s own life.Â What greater natural right can you name other than the right of self-preservation?Â In fact, the word “self-defense” appears one hundred fifty six times in the opinion, and has been swept aside by the Seventh Circuit.Â Why?Â The opinion mentions self-defense, but seems to imply that self-defense could be considered a privilege created through statute.Â Â Volokh has some extensive discussion around that topic too.
3 thoughts on “7th Circuit Ruling on Self-Defense”
So if Chicago wants to severely curtail 4th and 5th Amendment rights, that’s an OK ‘experiment’, too? His logic is …shall we say stinking to high heaven and back. Without uniform rules and expectations regarding our basic civil rights, we would have neither civil society, nor rights.
The path towards absolutely arbitrary legislative decisions unfettered by the rule of law is just around the bend, by his thinking.
Actually, parts of the 5th amendment aren’t incorporated. States, for instance, are not required to indict with grand juries.
The logical fallacy on the part of Posner is that the states should be free to craft unique and different rules on the efficacy and application of civil rights, up to and including meaningful restrictions on them. It’s the restrictive aspect that causes a problem, I think.
What kind of system would we have if, say, the state of CA recognized the Fruit of the Poisonous Tree 4th Amendment doctrine, but PA, because of (hypothetical here) greater problems with crime, decided to ignore that very important doctrine in the name of ‘experimentation’ and ‘Federalism’? Would that be a proper or just result for defendants in PA vs CA? This assumes that the relevant state constitutions provide no meaningful procedural and substantive protections in support of this doctrine.
The lack of full incorporation of parts of the 5th, 7th and 8th Amendments isn’t really at issue here. There is a distinction to be made within the discussion of “well, many state constitutions afford a 2nd Amendment-alike right to their citizens.” The fundamental aspect here is abrogation of a right, not mutual or non-Federal protection of that right at the state level.
Posner would have a substantive leg to stand on if gun control were not so rampant and abusive in this country at both the State and Federal levels. Citing your 5th Amendment comment, most State constitutions provide for grand jury indictment, which preserves procedural and substantive rights. At the same time, other means of indicting an accused, i.e. by information or attestation and the use of preliminary hearings, meet the overall substantive and procedural burdens needed to protect individual rights.
That same level of protection does not (yet) exist for 2nd Amendment rights. If it did, then I could see Posner saying “Meh, the right is so highly and properly protected at the State level that we don’t need to craft a uniform Federal rule.” Unfortunately, that is not the case.
Comments are closed.