Of the many critiques that followed the Supreme Court's landmark gun rights decision in District of Columbia v. Heller, perhaps the most interesting came from conservative federal Judge J. Harvey Wilkinson III. In a Virginia Law Review article entitled "Of Guns, Abortions, and the Unraveling Rule of Law," Wilkinson denounced Justice Antonin Scalia's majority opinion for engaging in judicial activism and compared the reasoning in Heller to that in the abortion rights case Roe v. Wade (not exactly a compliment from one conservative judge to another).
Now George Mason Univesity's Nelson Lund and the Independence Institute's David Kopel have written what looks to be a decisive critique of Wilkinson's article, which they recently made available via the Social Science Research Network. ...
Links to Judge Wilkinson's article is available at the article above. The Lund/Kopel critique of Judge Wilkinson's article is available for download here. From the article [footnotes omitted]:
The core of Judge Wilkinson’s argument starts with this proposition: “Society is a defined balance between individual and community. When rights are enumerated, courts are empowered to strike the balance; when they are not, or only ambiguously, the
balance is set by democracy.”5 Because Judge Wilkinson believes that the rights recognized in Heller and Roe are both bereft of unambiguous support in the Constitution, he concludes that both decisions were outrageous usurpations of legislative prerogative. He then goes on to elaborate at considerable length the “values” that the Heller Court violated by practicing what he calls an “aggressive
brand of originalism.”
In this response, we challenge his critique. Like many others, Judge Wilkinson deploys the “activism” epithet to attack results he dislikes. But in rejecting what he calls “originalism,” Judge Wilkinson is in fact rejecting the Constitution. He replaces the Constitution with judicial “values,” which he then manipulates in
order to reach results that he finds attractive.
Part I shows that Judge Wilkinson’s analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial “values.” Judge Wilkinson, moreover, does not show that Heller’s interpretation of the Second Amendment
is refuted, or even called into serious question, by Justice Stevens’ dissenting opinion.
Part II shows that Judge Wilkinson himself does not adhere to the “neutral principle” that he claims to derive from “judicial values.” Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge
Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness.