In a hotly contested case from the District of Columbia four months ago, the U.S. Supreme Court ruled that the Second Amendment protects an individual's right to own a gun even if local political preference calls for controls on weapons. The ruling struck down Washington's gun control law, except for bans on possession by the mentally ill or the carrying of weapons in sensitive places such as schools. The 5-4 decision was written by Justice Antonin Scalia, perhaps the court's most conservative justice, and was widely hailed by hunters and other firearms advocates who oppose heavy restrictions on gun ownership.
But the reaction from conservative judges has been a surprise, the New York Times noted last week. Two prominent appellate justices say Scalia's majority opinion was “illegitimate, activist, poorly reasoned and fueled by politics rather than principle,” the Times reported. Worse yet, the judges critical of Scalia's opinion in District of Columbia v. Heller say it was “a right-wing version of Roe v. Wade,” the 1973 opinion recognizing a woman's constitutional right to have an abortion, the newspaper added.
Those are fighting words in any conservative forum. But Appellate Judge Harvie Wilkinson of Virginia, a member of the 4th U.S. Circuit Court of Appeals in Richmond, is ready for that fight. In a forthcoming article in the Virginia Law Review, Wilkinson wrote, “the Roe and Heller courts are guilty of the same sin …. 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.”
Meanwhile, Judge Richard Posner of the 7th Circuit Court of Appeals in Chicago recently wrote in The New Republic that the failure to allow local officials to work out a solution “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”
The Second Amendment protects a right to bear arms, but the disagreement has long been whether there is a collective right of the people to do so, such as for a state militia, or an individual right that guarantees a person's right to own firearms. Warren Burger, the late chief justice, once called the notion of an individual right to possession “one of the greatest pieces of fraud” ever perpetrated by a special interest group, the paper said.
Conservatives have long chafed under what they saw as an activist 1973 court creating Roe v. Wade. But with Scalia's opinion, Wilkinson warned, there's a risk of damage to conservative judicial philosophy, the Times noted. That may horrify some conservative judges, but conservative citizens who liked the result in the gun case probably won't be any more troubled than most abortion-rights supporters were by the abortion decision 35 years ago. The wonder of it all is that it took so long for conservative activism to gain popularity – even in a split decision – on the high court.