DC vs. Heller Could Be Another Roe vs. Wade, Conservative Judges Fear

[Frodo]

Ruling on Guns Elicits Rebuke From the Right

By ADAM LIPTAK
Published: October 20, 2008

WASHINGTON — Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.

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. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

“The Roe and Heller courts are guilty of the same sins,” one of the two appeals court judges, J. Harvie 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.”
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[A18]

A more thorough analysis of constitutional text and history cannot be found in the United States Reports. Nor in most law reviews.

[cannonia]

Wilkinson seems to be arguing that courts should defer to the legislative branch rather than hold them to the limits imposed by the Constitution.  In other words, judges should not upset the cart.  If that's the case, what's the basis for any kind of constitutional law?

I agree with Robert Levy instead:

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[catmando]

Wilkinson seems to be arguing that courts should defer to the legislative branch rather than hold them to the limits imposed by the Constitution.  In other words, judges should not upset the cart.  If that's the case, what's the basis for any kind of constitutional law?

I agree with Robert Levy instead:

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Your analysis is spot-on. Levy is correct ... Heller was a victory for liberty and preservation of the constitution.

[Kaine for Senate '18]

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I'm inclined to agree with that, although I do believe in the right to an abortion.

[angus]

...

Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

Comparisons of the two decisions, especially those that rely on Scalia's view that values should be imposed by state legislatures, seem especially inappropriate since DC is under the jurisdiction of no state legislature.  In fact, the first article of the US Constitution grants the federal legislature ultimate authority over the District.  This should be contrasted against--rather than compared to--the case of Roe v. Wade, in which the values of the legislature of the state of Texas were in question.

Whatever your feelings about either of these issues the comparison, as structured, isn't apt.