Those Idiots At The New York Times!

Much ado about nothing, but here's the article, and my comments in brackets:

The New York Times

October 21, 2008
Ruling on Guns Elicits Rebuke From the Right
By ADAM LIPTAK

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.

[I've read several Second Amendment decisions in the last decade or so, and Scalia's was no better or worse than most. My favorite is Judge Sam Cummings' in the Emerson case: http://www.ejfi.org/PDF/emerson.pdf].

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.

[Nonsense! There is no comparison between a specifically enumerated right and an implied right.]

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.”

[Ridiculous. The judiciary was not created to facilitate legislatures passing laws which unmistakably violate the clear text of the Constitution. If the courts are going to give the legislature that much power, why have an appeals process at all? Why have a Constitution at all?]

Sharp criticism of a recent Supreme Court decision by federal appeals court judges is quite unusual, though these two judges — both Reagan appointees — are more outspoken than most.

Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.

Not all conservatives agree with the critics, of course. Robert A. Levy, a libertarian lawyer who was a principal architect of the victorious strategy in the Heller case, rejected the comparison to Roe.

The two sides in the Heller case claimed to rely on the original meaning of the Second Amendment, based on analysis of its text in light of historical materials. The amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The more liberal justices said the amendment protected only a collective right tied to state militias, thus allowing most gun control laws. The more conservative justices found an individual right and struck down parts of a District of Columbia gun control law.

[To be more precise: all nine Supreme Court justices agreed that it was an individual right, they just disagreed on the extent to which the legislature could regulate that right.]

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.

[The most persuasive historical work had already been done by Cummings, Levinson, Tribe, Silberman, et al.]

The strong reaction from the right after Heller was preceded, with a sort of symmetry, by liberal support for an individual-rights reading of the Second Amendment. For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right. (Warren E. Burger, after retiring as chief justice in 1986, called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen.”)

[Warren Burger made that comment in Parade Magazine, not the Yale Law Review.]

But some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. Professor Levinson’s seminal 1989 article in The Yale Law Journal captured the tone of the enterprise. It was called “The Embarrassing Second Amendment.”

In an interview, Professor Levinson said, “The result in Heller is eminently respectable.” But he added that he understood why some conservatives were upset. “People say the Roe court was too interventionist,” he said. “So is the Heller court from that perspective.”

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.

[The text is imprecise, but not ambiguous. The drafting and ratification processes left no doubt, however, of the meaning of the Second Amendment.]

“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.”

[False! The text clearly establishes the authority.]

Judge Posner built on themes in his recent book “How Judges Think,” which argued that constitutional adjudication by the Supreme Court is largely and necessarily political. The Heller decision, he wrote in The New Republic, “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”

[Too many jurists rule in favor of Prudentialism, i.e. "Irrespective of the text of the Constitution, how can my decision in this case contribute to a better society?" The Scalia decision favored a strict textual analysis.]

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.”

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

“But these are constitutional rights,” Mr. Levy, now chairman 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.”

[Levy is my hero! No, wait, Gura is my hero! No, wait...]

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

The Second Amendment, by contrast, indisputably protects a right to keep and bear arms, though there is sharp disagreement about the scope of the right. Mr. Levy said the natural reading of the amendment, one supported by historical materials, was that it protected an individual right.

[Spot on! The First Amendment is infringed every day. A witness can't lie under oath and then claim protection of the First Amendment; that's perjury. Lying in court, under oath, is a crime. But telling a lie just about anywhere else is not a crime; just look at the editorial page of the New York Times, for example! In the same way, Scalia wrote, laws may be passed regulating the Second Amendment provided that they are narrowly tailored. So, for example, a law forbidding a person from keeping a handgun in their home is unconstitutional, but a law prohibiting concealed carry in a courtroom or legislature or voting place would probably pass muster.]

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.”

[But the "legislative judgements" were unconstitutional on their face; there was no other rational choice for five honest, thoughtful men. It may take many years of litigation to sort out Second Amendment rights, but that is primarily the fault of the Federal courts, who refused for decades to hear Second Amendment cases and refused to acknowledge the "standing" of petitioners until Dick Heller came along.]

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.”

[What's the problem? Acknowledging that the Second Amendment is not an absolute? What did they expect, that Scalia would allow prison inmates to possess firearms in their cells? This is just quibbling.]

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.”

[That's why Levinson called it "The Embarrassing Second Amendment"! You judges are now going to have to clean up the mess you've made.]

[Incidentally, regarding the Emerson case, what has happened to Dr. Emerson in the last few years is shocking. You can read about it here: http://www.ejfi.org/emerson.htm]

Maybe if Scalia had thrown out GCA '68 and the NFA, bag and baggage, I might agree that he had committed "a brazen assertion of judicial authority", but the Heller decision? That's the way it should have been all along.