The Volokh Conspiracy - Posner & Easterbrook in Action During Oral Argument on Incorporation of a Right to Arms:

Circuit Court Judge Bauer expresses his enjoyment of Judges Posner and Easterbrook's roasting of Stephen Halbrook and Alan Gura's argument that the Seventh Circuit is not bound by Supreme Court precedent (Cruikshank & Presser) denying that the Second Amendment is applicable to the states because these decisions failed to consider whether the right to keep an bear arms is incorporated in the Due Process Clause of the Fourteenth Amendment. At the invitation of Judge Easterbrook, Gura eventually preserves his arguments on the merits and sits down. While Judge Easterbrook also expresses his view that the Slaughter-House Cases were wrongly decided, that and $2.25 will get you a ride on the CTA. For his part, Judge Posner manifests his general contempt for a constitutional right to arms--indeed he volunteers his view that states may constitutionally abolish the privilege of self-defense. He denies that there was any enthusiasm for gun rights in 1868, and seems completely unaware of the copious evidence that the Thirty-Ninth Congress was much concerned about protecting the individual right to keep and bear arms as a means for the freedman to protect themselves from violence. Here, for example, is the wording of the Freedman Bureau's Act:

And be it further enacted, That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.

So in this regard it is fortunate that Judge Posner will not be reaching the merits of the Fourteenth Amendment claim--just as it was fortuitous he was not on the DC Circuit to hear the Heller case. You can listen to the argument here.

Update: Link fixed (thanks to a reader).

	[Randy Barnett, May 27, 2009 at 12:24am] Trackbacks Posner & Easterbrook in Action During Oral Argument on Incorporation of a Right to Arms: Circuit Court Judge Bauer expresses his enjoyment of Judges Posner and Easterbrook's roasting of Stephen Halbrook and Alan Gura's argument that the Seventh Circuit is not bound by Supreme Court precedent (Cruikshank & Presser) denying that the Second Amendment is applicable to the states because these decisions failed to consider whether the right to keep an bear arms is incorporated in the Due Process Clause of the Fourteenth Amendment. At the invitation of Judge Easterbrook, Gura eventually preserves his arguments on the merits and sits down. While Judge Easterbrook also expresses his view that the Slaughter-House Cases were wrongly decided, that and $2.25 will get you a ride on the CTA. For his part, Judge Posner manifests his general contempt for a constitutional right to arms--indeed he volunteers his view that states may constitutionally abolish the privilege of self-defense. He denies that there was any enthusiasm for gun rights in 1868, and seems completely unaware of the copious evidence that the Thirty-Ninth Congress was much concerned about protecting the individual right to keep and bear arms as a means for the freedman to protect themselves from violence. Here, for example, is the wording of the Freedman Bureau's Act: And be it further enacted, That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery. So in this regard it is fortunate that Judge Posner will not be reaching the merits of the Fourteenth Amendment claim--just as it was fortuitous he was not on the DC Circuit to hear the Heller case. You can listen to the argument here. Update: Link fixed (thanks to a reader).