Yesterday the Seventh Circuit — in a decision handed down just one week after oral argument — held that the Fourteenth Amendment does not incorporate the Second Amendment against the States. The opinion by Judge Easterbrook (joined by Judge Posner) reasoned that Supreme Court precedent from the nineteenth century was dispositive. Despite the Ninth Circuit’s recent holding to the contrary, I think the Seventh Circuit has the better of the argument as to what an appellate court should do given the prior Supreme Court dicta on the subject.
Nevertheless, there are some flaws in Easterbrook’s opinion that are worth noting. First, he said that Slaughterhouse “holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states.” This is incorrect. Slaughterhouse does have some dicta that can be read that way, but there is no holding on incorporation. Second, the Court says that “[f]ederalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.” Really? How does the Court justify this sweeping conclusion? Well, with nothing — it’s at the end of the opinion and does not follow from the rest of the analysis.
This points up a larger problem. Posner and Easterbrook are outstanding judges, but when it comes to legal history they are, at best, average. There’s a good reason for that — they don’t care much for using history as a tool of legal analysis. (Posner had made this very clear in his scholarly writings.) Most of the time that’s not a problem, but on those rare occasions where history is important to a claim their indifference is exposed as sloppiness.