Judiciary

'Slapdash' Posner needs to be reined in by 7th Circuit, says law prof


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Richard A. Posner.
Photo from University of Chicago.

University of Baltimore law professor Garrett Epps is taking federal appeals judge Richard Posner to task for the tone of his opinion striking down an Illinois gun law.

Posner’s opinion for the Chicago-based 7th U.S. Circuit Court of Appeals in Moore v. Madigan overturned a law that prohibits most Illinois citizens from carrying a concealed handgun in public. Issued a few days before a gunman killed 20 children and six adults at a school Newtown, Conn., the decision contained a “nearly hebephrenic jape,” Epps writes in the Atlantic. The quote that offended Epps: The Second Amendment right “is not a property right—a right to kill a house-guest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves.”

“I think the decision is wrong on the merits,” Epps writes, “but even if it isn’t, it is poorly reasoned and unforgivably flippant in its treatment of what is literally a life-and-death issue in every city and state in the nation.” Moore v. Madigan deals with an issue that is “nobody’s joke” and Posner should have treated “a serious issue seriously,” Epps says.

“Posner has been on the bench now for more than 31 years,” Epps says. “As an intellectual, he is sometimes provocative and original, and sometimes slapdash and offensive.”

Observers have pointed out the possibility of “intentional irony” in Posner’s opinion, Epps acknowledges. After all, Posner had previously criticized the reasoning of the U.S. Supreme Court when it found a Second Amendment right to keep handguns at home in District of Columbia v. Heller. And Posner had accused the author, Justice Antonin Scalia, of violating his own stricture against using legislative history in the opinion. Even if Posner was demonstrating that overbroad language in Heller has no limits, Epps writes, his opinion is not defensible.

“Posner fed red-meat rhetoric to gun-rights lawyers and fanatics, a breed that is notably immune to irony of any kind,” Epps writes. He says the 7th U.S. Circuit should grant en banc review, vacate the opinion and issue a new one “written in a truly judicial voice.”

Hat tip to How Appealing.

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