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Old September 24, 2012, 07:25 PM   #1
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Join Date: July 26, 2005
Location: The Bluegrass
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What does the Scalia versus Posner fight mean to the 2A?

There's a decidedly uncivil discourse going on between Supreme Court Justice Scalia and 7th Circuit Court Judge Richard Posner. Both jurists can broadly be considered "conservative" though that means different things to different people. The problem escalated when Scalia co-authored a treatise with Bryan Garmer on statutory construction (Garmer is the editor of Black's Law Dictionary and is a noted writer on legal writing). It essentially advanced Scalia's theory of legal textualism at the expense of legislative history. Textualism simply means to look at the meaning of the words and the grammatical structure of sentences to determine what a statute means. Scalia likes to look to the original meaning of words and sentences. Heller is an excellent example.

Anyway, Judge Posner harshly criticized Scalia's textualism in a review of the treatise in article entitled "The Incoherence of Antonin Scalia" in The New Republic. Posner writes in that article, "Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing." Posner argues that "most professional historians reject the historical analysis in Scalia’s opinion" and accuses Scalia of hypocrisy by extolling the virtue of a preamble of a statute to divine intent while ignoring the preamble to the Second Amendment, "A well regulated Militia being necessary to the security of a free State.” Posner states, " The preamble implies that the Second Amendment . . . is not about personal self-defense, but about forbidding the federal government to disarm state militias." The article is not just about Heller, but that is the perhaps the most interesting portion for most members of this forum.

Scalia and co-author Garmer both responded publicly to Posner's blunt criticism. Garmer accused Posner of “tendentious hostility.” Garmer rejected Posner's premise that the treatise he and Scalia co-authored was a defense of Heller:
Garner also takes issue with a statement in Posner’s review claiming their book is a response to criticism of Scalia's Heller opinion. “What?” Garner writes. “I spent three-and-a-half years immersing myself in the literature of statutory interpretation, scouring hundreds of books and a thousand-plus articles to write a full-length treatise, merely to help my coauthor respond to criticism about one case? What a breathtakingly and self-evidently farcical statement.”

Scalia was even more blunt when he responded to Posner's assertions that he used legislative history in Heller, "'To say that I used legislative history is simply, to put it bluntly, a lie,' Scalia told Reuters." Posner's more circumspect reply is at

My question is what does all this mean in regards to Second Amendment cases in the 7th Circuit?
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