Posner, no fan of the Second Amendment, has long been critical of Heller, beginning in his August 2008 New Republic Piece, In Defense of Looseness. I originally critiqued Posner in Originalism for Dummies, and added, but deleted a critique in The Constitutionality of Social Cost due to space constraints (I may now add something back in).
Read this paragraph from Posner’s recent post to Becker-Posner Blog, and try to figure out what is missing from his analysis:
There are two important lessons that can be drawn from Becker’s discussion of gun control. The first is that a problem that is not dealt with in its early stages may become insoluble. It is not only the sheer infeasibility of removing 200 million guns from the American population, but also the emergence of a gun culture, that has ended hopes of disarming the population. The more people who own guns, the more other people will want to own them as well for self-defense; and the further ownership spreads, the more normal it seems. The ownership of guns has always been common in rural areas (the lower population density of the United States compared to Western Europe is an important reason why private ownership of guns is so much greater here), where there are hunting opportunities and police are spread thin. But now it is common in the rough areas of cities as well. Drug dealers cannot rely on police to enforce their deals and therefore have to arm themselves, and their law-abiding neighbors decide they had better be armed as well. (The news media create an exaggerated fear of violent crime, and this also contributes to the demand for guns by law-abiding people.) If population density continues to grow and the drug trade were legalized, gun ownership might begin to fall.
Figure it out? Well, let me give you a hint. THE SECOND AMENDMENT IS AN INDIVIDUAL CONSTITUTIONAL RIGHT. Posner speaks of the right to keep and bear arms as if it was a privilege–a dangerous one at that–that the state should be able to abridge for any reason. This was Posner’s view before Heller, and it seems to be his view after Heller. I recognize Posner may be one of the the most intelligent jurists on Earth, but constraints of vertical stare decisis should play a role here notwithstanding the fact that he disagrees with Heller (putting aside for a moment that a sitting jurist is opining on a blog about cases pending before his Court).
Now lets attack this piece a bit more. Posner’s goal is obvious–disarming 200 million gun owners. But he recognizes the government can’t do this due to “the emergence of a gun culture” as well as the obvious “sheer infeasability.” Now why would anyone want to own a gun in the city? “Drug dealers cannot rely on police to enforce their deals and therefore have to arm themselves, and their law-abiding neighbors decide they had better be armed as well.” Seriously? Drug dealers are the people applying for licensed firearms?
What about people concerned about using a firearm for self-defense? Well, Posner chalks this up to the “news media [that] create[s] an exaggerated fear of violent crime, and this also contributes to the demand for guns by law-abiding people.” Yes because the mainstream media is all about increasing firearm ownership. Posner ignores the wealth of literature about firearms used for self-defense–such as against drug dealers. Look at Otis McDonald, the plaintiff in McDonald v. Chicago, who wanted a firearm to help push back against drug dealers in his neighborhood who harassed him.
Next, he unloads and fires away the Court’s opinions in Heller and McDonald.
The second lesson is 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.
Why should Arizonans receive stronger Second Amendment rights than New Yorkers? Well Arizona has a “deeply entrenched and historically understandable gun culture and a rationally greater lawful demand for private gun ownership” and other scities “with high crime rates” have “long had very strict gun laws.” As I argue at some length in the Constitutionality of Social Cost, this line of reasoning is foreign to any other constitutional right (notwithstanding the Court’s devastating “longstanding prohibitions” dicta).
Until the Fourth Amendment was incorporated, states certainly “differed about the need for” protections of criminal procedure rights. Likewise, until the First Amendment was incorporated, states “differed about the need” for protecting free speech and free exercise. These historical vestiges of the pre-incorporation status serve as nothing more than a reminder of how our Constitution existed before the robust enforcement of federal rights that we have come to enjoy—at least most of the rights. Following Mapp v. Ohio and Miranda v. Arizona, longstanding police interrogation techniques that violated the Constitution were not upheld—nor should the prohibitions the Heller Court identified. As a result of this anachronistic regime where rules premised on a flawed understanding of the Constitution control, even under Heller and McDonald, the Second Amendment is quite lonely.
 Mapp v. Ohio, 367 U.S. 643 (1961).
 Miranda v. Arizona, 384 U.S. 436 (1966).
What is his plan to cause decline in gun ownership?
A reduction in the criminal use of guns would in turn reduce the demand by law-abiding persons, and as that demand fell so might the demand of guns by criminals, given stiff punishment costs. A virtuous cycle might be initiated that would lead eventually to a significant overall decline in gun ownership.
All of the means Posner proposes to restrict access of criminals to firearms, with the exception of punishing in possession (which only applies to felons who are incarcerated and pose no imminent threat0, only apply to people who aim to purchase firearms through legal means. Criminals, by and large, purchase firearms on the black market. The ideas Posner proposes ostensibly will make it harder for law abiding citizens to purchase firearms.
All of these objections fall to one point–Posner ignores Heller, and does not treat the Second Amendment as a constitutional right. Even Breyer has the dignity to assume arguendo that it is a right, and argues that the laws in McDonald and Heller were still constitutional. Posoner makes no such assumption.