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October 21, 2008

Attacking the felon exception in Heller's articulation of Second Amendment rights

Adam Liptak in the New York Times has this great article on one of my favorite modern constitutional topics, the Second Amendment and the Supreme Court's work in Heller. The piece is headlined "Ruling on Guns Elicits Rebuke From the Right," and I especially like how it starts and ends:

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....

In his article, Judge Wilkinson wrote ... 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 as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

Mr. Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”

It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented “the worst of missed opportunities — the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.” At worst, he warned, “There is now a real risk that the Second Amendment will damage conservative judicial philosophy” as much as Roe “damaged its liberal counterpart.”

Some related posts (written both before and after the Supreme Court's opinion in Heller)::

October 21, 2008 at 03:46 PM | Permalink

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Listed below are links to weblogs that reference Attacking the felon exception in Heller's articulation of Second Amendment rights:

» Another Judge Rips Scalia's Heller Opinion from Simple Justice
First it was 7th Circuit Judge Richard Posner, whose New Republic a... [Read More]

Tracked on Oct 22, 2008 9:01:10 AM

» Another Judge Rips Scalia's Heller Opinion from Simple Justice
First it was 7th Circuit Judge Richard Posner, whose New Republic a... [Read More]

Tracked on Oct 23, 2008 5:32:09 AM

» Another Judge Rips Scalia's Heller Opinion from Simple Justice
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 activi... [Read More]

Tracked on Oct 23, 2008 5:34:44 AM

» Another Judge Rips Scalia's Heller Opinion from Simple Justice
First it was 7th Circuit Judge Richard Posner, whose New Republic a... [Read More]

Tracked on Oct 23, 2008 5:39:45 AM

Comments

Where is this generation's Justice Holmes to read these fools the riot act. "General principles do not decide concrete cases." Does you Scalia manipulate his principles to support his values. You bet he does. It's what every judge does; some are just more honest about it than others.


Posted by: Daniel | Oct 21, 2008 4:13:03 PM

Excerpt of remarks by Justice Antonin Scalia on "Constitutional interpretation" at The Woodrow Wilson International Center for Scholars in Washington, D.C, March 14, 2005.
http://www.joink.com/homes/users/ninoville/ww3-14-05.asp

"Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the 'Living Constitution,' judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such."

Posted by: Alex Blackwell | Oct 21, 2008 8:48:49 PM

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