Tuesday, October 21, 2008

Heller Critiqued from the Right

Adam Liptak (NYT) reported today that Judge J. Harvie Wilkinson III (4th Circuit) and Judge Richard Posner (7th Circuit) criticized D.C. v. Heller, last term's gun-rights case, for its methodology.  Particularly, Judge Wilkinson wrote in a Virginia Law Review article, and Judge Posner wrote in The New Republic, that the Court's methodology had some of the same problems as the Court's methodology in Roe v. Wade.

The articles aren't new, and I suspect many of us have been using them and Heller to illustrate and discuss originalism in our classes.  (Heller, of course, is a wonderful case study, because both majority and dissent claim to adopt a form of originalism, but they come out very differently.)  But Liptak's article, which clearly and concisely sets out the arguments and explores (even if only briefly) the politics of aligning Heller with Roe, gives us yet another way to share these issues with our students.

Here are some highlights from Liptak's article:

"The Roe and Heller courts are guilty of the same sin," one of the two appeals court judges, J. Harvey Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.

Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller's failure to allow the political process to work out varying approaches to gun control that were suited to local conditions "was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade." . . .

In Judge Wilkinson's view, the upshot of the court's extensive historical analysis was that "both sides fought into overtime to a draw."

Others said the quality of the combat was low.  "Neither of the two main opinions in Heller would pass muster as serious historical writing," Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued. . . .

Judge Wilkinson's basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process.  He assumed, as most experts do, that the decision would apply to the states.

"In both Roe and Heller," Judge Wilkinson wrote, "the court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives.  In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."

The Heller decision, Judge Posner wrote in The New Republic, "is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." . . .

Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than teh courts.

"But these are constitutional rights," Mr. Levy, now chariman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment.  "They are not rights consigned to the legislature."

The analogy to Roe, he went on, is misguided.  There is no reference to abortion in the Constitution. . . .

In his article, Judge Wilkinson wrote that he "readily agreed" that Roe "involved the more brazen assertion of judicial authority."  But he added that the Roe and Heller cases shared a number of common flaws, including "a failure to respect legislative judgments," "a rejection of the principles of federalism" and "a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation."

Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia's opinion that seemed to endorse a variety of restrictions on gun ownership.  "Nothing in our opinion," Justice Scalia wrote, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution.  "The Constitution's text," he wrote, "has little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy."



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