People who are too smart to find the word "arms" in the Second Amendment

I'll warn you up front: This is as harsh an assessment as I've ever written on this blog.

I know this guy has lots of credentials that are supposed to mean he's smart and well-educated.

But I've read this blog post about the pending Heller case before the Supreme Court about five times now. I cannot find in it a single sentence to confirm that the author actually does know the difference between a right directly and explicitly guaranteed in a constitution and a right created solely by legislative enactment, much less why that distinction might be important to a court. He seems to have missed the day in high school civics when the teacher explained that constitutions are supposed to be different and special.

He also writes, with a straight face:

How do we know that the Supreme Court is hypocritical?  Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members — as Heller seems to make (or will make) painfully clear.

That's demonstrably false. A twelve-year-old would guess, for example, that Justice Scalia, being a good law-and-order conservative jurist appointed by a Republican, would uphold stiff criminal sentences determined by law-and-order trial judges, and that he would affirm lower courts who've "thrown the book" at flag-burners.

By the time you're a professor at the University of Chicago Law School like Eric Posner, however, it's inexcusable to fail to know that Justice Scalia has consistently voted to preserve the right to jury trial and the right to engage in political protest of the sort typified by flag-burning. If what he teaches to his students is equally shallow as what he's written for this new national legal blog run by Slate, then this man should be fired as a law professor — immediately, tenure or not, for the University would certainly have cause. This kind of political drivel disguised as legal analysis insults the integrity of the Justices of the Court (all of them, not just the conservative block), along with the intelligence of the reader (any reader, of any stripe of legal or political philosophy).

In fairness, Posner was being as monumentally and inexplicably clueless in his post as Dahlia Lithwick had already been in her post-argument Heller post upon which he purported to be commenting. Summarizing Walter Dellinger's argument in support of the District of Columbia's handgun ban — the position I'm reasonably sure she personally thinks should prevail — she wrote:

The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, he says, it's at the "penumbra of the periphery" of the Constitution: in a shack behind the river where the other unenumerated rights huddle.

"The other unenumerated" rights?!? Whatever limits there may be to the constitutional right to keep and bear arms, no one who understands the meaning of the word "enumerated" can deny that this right is one (as opposed, for example, to the constitutional right to bedroom privacy, which assuredly is not enumerated anywhere in the Constitution).

Indeed, lots of us think the very fact that the right to keep and bear arms is specifically listed by name in the Constitution is pretty significant. But Lithwick writes as if it's moderately surprising that anyone has drawn the inference that the Second Amendment might even arguably relate to firearms, topside or bottom. And Posner writes as if it's utterly impossible that any members of the Supreme Court actually think the words in the Constitution count for anything, or that they might think it matters that they're in, you know, the Constitution and its Bill of Rights (as opposed to, say, in a Berkeley city ordinance).

Make no mistake: Posner and Lithwick badly want to de-legitimize judicial conservatives on the Court by equating their recognition of a personal Second Amendment right to previous acts, by liberal Justices, in "finding" constitutional rights like the "right" to an abortion. Thus can they claim that the conservatives are hypocrites, changing judicial philosophies willy-nilly to achieve their desired political results. But to make this argument track, Posner and Lithwick have to pretend that the Constitution is as silent about the right to keep and bear arms as it is about, for example, the "right" to an abortion. That's why Lithwick (falsely) suggests that Dellinger called the right to keep and bear arms an "unenumerated right," when the transcript shows that he made no such claim.

(By contrast, Dellinger himself, desiring to be treated as a serious advocate instead of a child, of course acknowledged the literal text of the Second Amendment, but (at page 27 of the transcript) tried to minimize the importance of the "keep and bear arms" language as being of secondary or tertiary importance as compared to the "well-ordered militia" language. He was emphatically not suggesting that the right to keep and bear arms was unenumerated or found only in the "penumbra" of literal language in the Constitution or Bill of Rights, like the "privacy" right "implied" by the Court out of thin air in Griswold.)

This is a level of stupidity that can only be explained by neurology, not law. It's like one of those syndromes that Oliver Sacks describes, where some sort of organic brain damage, some lesion, prevents a husband of many decades from being able to distinguish between his wife and his hat in his spoken language or even his internal mental conceptions. The notion that the Constitution's actual words might count is so contrary to Posner's and Lithwick's fundamental liberal mindsets that they go into verbal seizures, batted back to a pre-K level of understanding, just one step above drooling while chanting "Scalia ... very ... baaaad." Posner I don't know, but I can at least usually find some kernel of principled argument inside Lithwick's writings, typically buried deep under the snarky distortion that she intends to be funny, even when they swerve into the frankly dishonest. But not this time.

There are interesting arguments that can be made, and have been made, from time to time by supporters of gun control regulations. You won't find any of them in either of these two posts, however. Dahlia Lithwick and Eric Posner didn't just swing, miss, and strike out, they left their bats in the dugout and immediately wandered off from the batter's box into far, far left field, way outside the foul line and only barely still within the confines of the ballpark. I would offer a hefty wager that when this game is over, they'll still claim that it was rigged, and that their side wuz robbed. Then they'll turn, nod and gesture to their approving crowds, and bask in the roar of their righteous liberal approval.