Virginia Law Review 95:2 (April 2009)
posted by Virginia Law Review
VOLUME 95 APRIL 2009 ISSUE 2
Virginia Law Review 95:2 (April 2009)
ESSAY
| Of Guns, Abortions, and the Unraveling Rule of Law |
Judge J. Harvie Wilkinson III |
ARTICLE
| The Antitrust of Reputation Mechanisms: Institutional Economics and Concerted Refusals to Deal |
Barak D. Richman |
NOTES
May 15, 2009 at 2:32 pm
Posted in: Law Rev (Virginia), Law Rev Contents
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Responses (2)
Brett Bellmore - May 17, 2009 at 12:18 pm
Regarding “Of Guns, Abortions, and the Unraveling Rule of Law”, it’s just flat out surreal to read somebody arguing that Heller had only marginally more constitutional basis than Roe.
Surreal. That’s the only word for it.
I wouldn’t claim Heller was a perfect ruling, far from it, but it’s not even remotely Roe.
In particular, it would come as a vast surprise to most Americans that Heller ‘created a new right’, as Heller only upholds the commonplace understanding of the 2nd amendment. I don’t believe there’s ever been a time when it wasn’t understood to guarantee an individual right of some scope by the general populace.
And, really, the only reason for the “thicket” is that the Court spent 70 years flatly refusing to take 2nd amendment cases, while gun control laws accumulated.
Brett Bellmore - May 18, 2009 at 4:21 am
I might also add that this “new right” is explicitly guaranteed by 44 state constitutions, too, in some cases dating back as far as the founding, and was cited as one of the reasons for the 14th amendment during Congressional debate.
Whichever side you think should have won in Heller, this right was hardly created out of whole cloth by the court.
Now, to be fair, Heller was scarcely Scalia’s finest moment. Originalism led one place, (NOT a place Wilkinson would like!) and Scalia went another. Predictably so, he’s at best a faint hearted originalist, and least likely to follow that reasoning when it says long standing (70 years, remember?) laws need to be overturned. Particularly startling was Scalia’s apparent belief that Miller had *lost* at the lower court level, when he’d been utterly vindicated, and it was the federal government appealing it’s defeat to the Supreme court.
No, not exactly a gem of a ruling.
But Wilkinson’s position amounts to insisting that the Court take it’s magic bottle of whiteout to 10% of the Bill of Rights, render it effectively repealed. That’s been done to enough of the Constitution already, and in the case of the 2nd, might have gone a fair way towards starting a civil war.
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