The false attribution fallacy, the Left, and Judge Richard Posner

From his review of Miarcia Coyle's new biography of SCOTUS CJ John Roberts, The Roberts Court: The Struggle for the Constitution, LA Times editor at large John Newton makes a classic liberal commentator's move; to wit, invoking statements by Judge Richard Posner as evidence of what conservatives think:

No area belies Roberts' assertions of judicial modesty more clearly than the court's new approach to guns. Under the leadership of Justice Antonin Scalia, the court in District of Columbia vs. Heller for the first time held that the 2nd Amendment protects an individual's right to bear a weapon rather than hinging that right on its relationship to a militia.

That may have been right as a matter of law — and the ruling has been broadly misinterpreted as prohibiting regulation of guns when, in fact, it specifically countenances restrictions on gun ownership — but it certainly was not an act of restraint. It overturned the District of Columbia government, relied on a shaky reading of history and ignored decades of prior court rulings.

Because of that, Heller has been roundly criticized — by conservatives. As federal judge Richard Posner said, "it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." Posner compared the Heller decision to Roe vs. Wade.

So much for Roberts as umpire.

The great difficulty with this argument, of course, is that it is an example of the false attribution informal fallacy; to wit, an appeal "to an irrelevant, unqualified, unidentified, biased or fabricated source in support of an argument."

Judge Richard Posner has never been a conservative. I therefore once remarked that "Posner never was a conservative, so how can he become less of one?" Having said that, however, it does seem to me that Posner has shifted from his long held stance as a pragmatic classical liberal to a mushier mix that includes a substantial dose of East Coast elite modern liberal thinking.

So much for Posner as an authority on what it means to be a conservative.

Also, did you note the sleight of hand Newton makes elsewhere in the passage?

That may have been right as a matter of law ... but it ... relied on a shaky reading of history and ignored decades of prior court rulings.

I'm no fan of guns, but Heller was clearly correct. It rested on the now widely accepted view that the Second Amendment creates an individual right, a view that is attributable in part "to the work over the last 20 years of several leading liberal law professors." So how can something that was right on the law relt on shaky history?

Finally, it ill becomes Newton, the author of Justice for All: Earl Warren and the Nation He Made, to complain about judicial ruling that ignore "decades of prior court rulings." The Warren Court used to reverse long-settled precedent twice a morning before breakfast. "Under Chief Justice Earl Warren, the Court took an 'activist' role, deviating from precedent ...." 90 Cornell L. Rev. 419, 430. Indeed, even CJ Warren himself acknowledged that "Of course the rule of stare decisis is not and should not be an inexorable one. This is particularly true with reference to constitutional decisions involving determinations beyond the power of Congress to change...." James v. U.S., 366 U.S. 213, 233 (1961). 

So much for Newton as objective journalist.