Another Judge Rips Scalia’s Heller Opinion

First it was 7th Circuit Judge Richard Posner, whose New Republic article challenged the legitimacy of the majority decision in D.C. v. Heller.  Now, Adam Liptak in the New York Times brings us another judge on the warpath against this wild-eyed activist, Antonin Scalia.  Now, it’s J. Harvie Wilkinson III of the 4th Circuit, who has written an article to be published in the Virginia Law Review.

Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. (Emphasis added.)

Ouch.  Those are harsh words. But the real “dis” isn’t Liptak’s descriptive characterization, but rather the comparison made by Judge Wilkinson.  Heller is the new Roe v. Wade.

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 and to local values. 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.”

There is no worse slap in the face, whether in conservative or judicial circles, then comparing a decision’s reasoning to Roe v. Wade.  Why not just ridicule his mother at the same time?  It’s that bad.

Indeed, Judge Wilkinson wrote, “Some observers may be tempted to view Heller as a revenge of sorts for Roe” or “a sort of judicial tit-for-tat.” As Judge Posner put it, “The idea behind the decision” in Heller “may simply be that turnabout is fair play.”

Another punch to the gut, conservative revenge.  But Judge Wilkinson, according to Liptak, raised some substantive aspects of the Heller decision that some of us in the blawgosphere, most notably Doug Berman, have been harping on since the decision came out. 

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 as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

He’s got a very good point.  If you’re going to present your philosophy as having some basis in intellectual integrity, then you would do well to practice what you preach.  And Scalia’s throw-away paragraph, sweeping aside all the hard questions with the holding, may ultimately prove to be one of the most disgraceful exercises of baseless judicial activism since, well, Roe v. Wade.

7 comments on “Another Judge Rips Scalia’s Heller Opinion

  1. Joel Rosenberg

    Well, I’m not fond of that paragraph, either, but . . .

    I seem to remember somebody arguing that important SCOTUS decisions should at least give a hint, or more, as to what they’re going to do in the future on the issue, and I’d guess part of that would be hinting what they aren’t going to do.

  2. Mark Adams

    Admittedly, all I have read is what you have excerpted here, but for whatever betrayals of orginalism or textualism that may inhabit the Heller opinion, the idea that it is analogous to Roe is absurd.

    “In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.”

    Except that the text of the 2nd Amendment actually addresses the question of guns and gun ownership. And it actually contains text saying gun ownership is a right that may not be restricted. Whether the prefatory clause severely limits the scope of this right and whether the obligation to incorporate this right is extended to the states may be debated.

    But there is simply nothing in the text of the Constitution referring to abortion (or anything close to abortion) or naming it a right not to be infringed upon.

    The idea that the texts which serve as the foundation of the holdings of the two decisions are equally shaky is ridiculous.

  3. SHG

    He doesn’t claim it’s a perfect analogy, and your point goes to a direct failing in the comparison.  But if you get down to the paragraph in Heller relating to current gun laws, felons in possession, etc., his analogy works much better and the comparison has its merit.

  4. ken

    This is a poorly reasoned article all around. Judge Wilkinson sees similar effects and deduces from that similar causes. He’s wrong.

    It’s a shallow analysis as to cause; reread the article – the great majority of it concentrates on effects and assumes the causes thereof to be the same. You’re right, his strongest point is Scalia’s dicta (which is poorly reasoned). His weakest is actually his thesis: in both decisions the Court found a “right” which is not in the text. Note that he stays away from the text of the Amendment like it is kryptonite.

    I addressed all this last month:

    http://cltv.blogspot.com/2008/09/41hubris-heller-and-harvie-wilkinson.html

  5. SHG

    To intervene in conservative judicial mud-wrestling would be an act of sheer . . . hubris.

    And where did CLTV (or the mysterious LX, as it was last called) go?  You change things around so often, I can’t find it. 

  6. ken

    It’s down for the time being. My actual work life has gotten a little busy lately. As well, my tracking software indicated that only about 30 people a week were actually watching even a portion of the video and that kind of return on at least 3 hours of work just wasn’t enough to make time for it.

  7. SHG

    Bummer.  And I was watching each edition at least a dozen times, showing friends and clients that I knew a big TV star.

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