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Grumpy old men on the federal bench

It’s fair to say that when Seventh Circuit Court of Appeals Judge Richard Posner wrote in Moore v. Madigan (previewed here last week) that Second Amendment protection extended to the right to armed self-defense in public, he didn’t anticipate the horrific massacre in Newtown just days later.

But that doesn’t make his words any less offensive, says Garrett Epps, a former reporter for The Washington Post and now professor at the University of Baltimore and author of  a new book called Wrong and Dangerous: Ten Right Wing Myths About Our Constitution.  Writing in The Atlantic this morningEpps likens Posner’s words in that opinion to those used by Justice Antonin Scalia in earlier U.S. Supreme Court cases dealing with the Second Amendment:

Neither the Supreme Court nor the Seventh Circuit displays the slightest concern for the real-world effects of [their] decision[s]. Instead, what matters is a kind of airless, abstract reasoning. To Justice Scalia, it is clothed in the garb of history; to Posner, it represents “pragmatism.” In fact, that callous indifference to consequences — ahistorical and unpragmatic — disfigures both the Supreme Court’s Second Amendment cases and reveals a flip attitude toward the problems of those who must live their lives outside federal courthouses surrounded by metal detectors and marshals.

Both men, Epps continues,  have evolved into the judicial version of “grumpy old men” with little consideration for the real world impact of their decisions:

More and more, the right wing of the federal judiciary is behaving like the nasty old uncle at the family dinner table, grumbling about how stupid young people are today. Why do they need medical care, or contraception, or protections from sexual violence, or anti-smoking efforts, or gun control? We didn’t have any of that stuff when I was a kid, and look how great I turned out!

That avuncular growl is grating at the best of times. In a moment of national mourning, it is repellent.

 

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