Sunday, February 20, 2011

Judge Posner on Gun Control and Federalism

Over at the Becker-Posner blog (here), Judge Posner notes the
unwisdom of the Supreme Court’s recent decisions that have created—on the basis of a tendentious interpretation of the drafting history of the Second Amendment and an intellectually untenable (as it seems to me) belief in “originalist” interpretations of the Constitution—a constitutional right to possess guns for personal self-defense. The result is to impose a significant degree of nationwide uniformity on a problem that is not uniform throughout the nation. The case for private gun ownership is much stronger in largely rural states, such as Arizona—states in which there is a deeply entrenched and historically understandable gun culture and a rationally greater lawful demand for private gun ownership than in the suburban areas of the densely populated midwestern, northeastern, and mid-Atlantic states—than it is in big cities with high crime rates—cities that have long had very strict gun laws many of which may now be ruled unconstitutional. 
I find appealing Judge Posner's argument  that different states should be allowed to have different levels of gun control based on their respective histories, norms, and demographics (e.g., rural v. urban populations). The problem, of course, is that, even if everyone concedes the bankruptcy of "originalism," it would be very difficult for the Supreme Court (or any court) to apply constitutional mandates and limitations non-uniformly from one state to another.

1 comment:

  1. "...rationally greater law of demand for private gun ownership?" How does Posner suggest a court determine a rational balance of urban/rural proportion for a state to allow unfettered gun ownership? I agree with you, Dan, Posner's usual hyperrational reasoning has failed him here.


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