The object of Prof. Garrett Epps indignation, the Hon. Richard Posner of the 7th Circuit, must be used by now to scathing commentary on his eclectic and iconoclastic views. He may even enjoy the attention. After all, Posner recently has taken and returned rhetorical fire with Justice Antonin Scalia. But Epps, who teaches both constitutional law and creative writing at the University of Maryland, is well-equipped to suit up against the Yale summa cum laude English major Posner. Posner drew gun-control-supporter Epps' ire by being "unforgivably flippant" in Moore v. Madigan, a 7th Circuit opinion rejecting an Illinois gun control law. In The Atlantic "The Seventh Circuit's Big Chance to Redeem Itself On Gun Control" Epps says that Moore "resolves the question of guns in the home and outside it not with serious reasoning but with this nearly hebephrenic jape: "[The Second Amendment right] is not a property right -- a right to kill a house-guest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell's painting Santa with Elves." Epps complains:
Posner may be having us on. If so, however, his satiric intentions do not render the opinion defensible. It is one thing for him to persecute Scalia in the pages of the New Republic or the University of Chicago Law Review; it is another thing entirely to take the dispute into the Federal Reporter, 3d Series. The words that appear in that volume are not opinion pieces but opinions; not legal scholarship but law. Moore was a 2-1 decision; Posner had the option of joining a thoughtful dissent by Judge Anne Claire Williams. Authoring the broadest possible interpretation of Heller and McDonald, Posner fed red-meat rhetoric to gun-rights lawyers and fanatics, a breed that is notably immune to irony of any kind.
Posner has been on the bench now for more than 31 years. As an intellectual, he is sometimes provocative and original, and sometimes slapdash and offensive. His most attractive trait is his willingness to revise his previous opinions in light of new information. Less winning is his unwillingness to take others' views seriously.
Even Jove nods, and Posner ain't Jove. His colleagues on the Seventh Circuit might contribute a small lesson in humility by vacating the Moore opinion and substituting one written in a truly judicial voice. No matter which way the en banc review comes out, it can't be worse than what he has written.