Skip to comments.Conservative judges fault Scalia opinion on guns
Posted on 09/27/2008 9:49:41 AM PDT by SmithL
WASHINGTON (AP) -- Supreme Court Justice Antonin Scalia is no stranger to criticism. He gives as good as he gets.
But two recent critiques of his opinion in the landmark decision guaranteeing people the right keep guns at home for self-defense are notable because they come from respected fellow conservative federal judges.
The judges, J. Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, take Scalia to task for engaging in the same sort of judicial activism he regularly disdains.
Wilkinson was interviewed by President Bush in 2005 for a Supreme Court vacancy. His article strongly suggests that the 5-4 decision in Heller v. District of Columbia would have come out differently if he had been chosen for the court. Bush's appointees to the high court, Chief Justice John Roberts and Justice Samuel Alito, joined Scalia's opinion.
(Excerpt) Read more at sfgate.com ...
His article strongly suggests that the 5-4 decision in Heller v. District of Columbia would have come out differently if he had been chosen for the court.What part of "shall not be infringed" does he not understand?
Gosh, I think I hear the world's smallest violin playing...
Exactly and doesn’t sound like a conservative judge to me.
Idiot uses Scalia’s dissent in Roe, constructed on no clear constitutional language, to criticize a decision under the 2nd amendment. Not only do we have jihadijournalists blowing themselves up for their political causes, now we have jihadijudges.
Not only did Scalia uphold the Second Amendment from a constructionist perspective, the Supreme Court has final jurisdictional control over the DISCTRICT OF COLUMBIA - where the case was brought in the first place.
The other judge is a whiner and obviously not a strict contructionist.
This idiot doesn't get it. This was about the 2nd Amendment!
“....His article strongly suggests that the 5-4 decision in Heller v. District of Columbia would have come out differently if he had been chosen for the court....”
....and that is precisely WHY he wasn’t chosen for the court.
He has some conservative views, mostly in areas like contract rights, but his parents were Communist Party members, he clerked for Justice Brennan, and he favors partial birth abortion. Plus he was born in NYC, went to Yale, and lives in Chicago, so naturally he thinks gun owners are knuckle-dragging yahoos.
My guess is that some justices think that the US Reports are a higher authority than the US Constitution. Stare decisis is a cancer in systems of civil law - the very principle should be culled from the courts. 2+3=5, and the fact that some student somewhere received full grades previously for stating that 2+2=3 is a poor reason to suggest that 2+3=4. Multiply that error by 30 students and building new errors upon such errors becomes no more palatable.
When the US Reports and US Constitution are in conflict, I would like to remind those on the court what they swear fidelity to when taking the judicial oath.
It is not “judicial activism” to interpret the words of the Constitution in an area where heretofore the Court had been largely silent. For his part, Wilkinson’s record on the bench has been inconsistent. Posner (who, interestingly, is not quoted at all in the AP article) would surprise me, as he is a brilliant man and a scholar of great depth.
Some years back I read of a bumper sticker that said ‘’Mr. politican, what is it you have in mind for me that you’re so damn worried about me owning a gun?’’ We have the right, get over it, go lay on a couch for crazy people, commit Herry Cary.
“Wilkinson said elected officials are in a better position to determine gun laws than the courts”
Using that logic, it must be ok for elected officials to ignore the 1st amendment too when making laws.
Aren’t judges supposed to be active in their defense of the Constitution?
Nah, he’s just getting his name out there and his 15 minutes of fame, in case o-boy becomes POTUS, and the SC happens to have a vacancy.
Wilkinson said elected officials are in a better position to determine gun laws than the courts
An unbelievably arrogant statement by a person sitting on the federal bench. This guy is clueless as to what the ultimate authority in this country is.
The United States Constitution is the supreme law of the land. Period. EVERYTHING else issues forth from that bedrock point.
When the constitution makes a statement, elected officials do NOT have the right to ignore, disobey or change it.
No wonder this country is going down the tubes. If “conservative” judges have this attitude we’re doomed.
Roe V Wade was based on the so called “right to privacy” which is not in the constitution. The “right to bear arms” is spelled out. Not sure why that is so complicated.
I’ve said it before and I’ll say it again...a weenie with a gun is still a weenie.
This judge is twisting Scalia's words and philosophy. Scalia believes in the "democratic outlet" to settle matters that aren't specifically addressed in the Constitution. Firearms ownership is specifically addressed in the constitution. This judge sounds like he has an axe to grind.
Thomas Jefferson: "Laws that forbid the carrying of arms...disarm only those who are neither inclined or determined to commit crimes. Such laws only make things worse for the assaulted and better for the assassins; they serve to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." (1764 Letter and speech from T. Jefferson quoting with approval an essay by Cesare Beccari)
John Adams: "Arms in the hands of citizens may be used at individual discretion in private self defense." (A defense of the Constitution of the US)
George Washington: "Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than 99% of them [guns] by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference [crime]. When firearms go, all goes, we need them every hour." (Address to 1st session of Congress)
George Mason: "To disarm the people is the most effectual way to enslave them." (3 Elliot, Debates at 380)
Noah Webster: "Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe." (1787, Pamphlets on the Constitution of the US)
George Washington: "A free people ought to be armed." (Jan 14 1790, Boston Independent Chronicle.)
Thomas Jefferson: "No free man shall ever be debarred the use of arms." (T. Jefferson papers, 334, C.J. Boyd, Ed. 1950)
James Madison: "Americans have the right and advantage of being armed, unlike the people of other countries, whose people are afraid to trust them with arms." (Federalist Paper #46)
The George Washington quote is bogus, I believe, you might want to check it out.
Ah, darn! Researching I go.
I think these two other judges are “conservative” in the true meaning of the word—that they are hesitant to change in any direction, preferring the status quo even when it is strongly at variance with a strong constitutional principle. Prisoners to precedent.
As such, they put themselves in the middle of the judicial debate, with one side believing that the constitution is still an orderly and correct document, and the other saying it is a living document easily changed.
The make themselves into JINOs, or Judges In Name Only, like the small boy umpiring a baseball game and not wishing to offend either side, so he calls “Strike Two and a Half!” And when cornered about it, insists that lots of other umpires have called “half strikes” as well.
It doesn’t work for baseball, and it doesn’t work for appellate judges.
Another version of a JINO, currently sitting on the SCOTUS, is justice Breyer who suggested that international courts decisions should be examined as well. “International opinion can be relevant in determining fundamental freedoms in a more global society.”
Which is like the European polls that overwhelmingly favor Obama as our next president. Utterly useless and invalid opinions. Scalia was right to chastise Breyer in a public debate.
Which brings up the BIG question, directed at justice Scalia:
“Should the tenth amendment to the US constitution be enforced?”
His answer would dominate legal scholarship for many years to come.
Ironically, if the US government is forced into near bankruptcy, and must have a balanced or even surplus budget in the future, much of the downsizing of the federal government could be dictated by a revived 10th amendment.
It would be the SCOTUS’ finest hour. Vast amounts of federal law and bureaucracy would be slashed by the judiciary, saving the president and the congress who are incapable of doing so. All they would have to do is play defense, and not try and recreate the unconstitutional bloat.
Such a Herculean task is almost unimaginable, yet would be far safer than the constitutional alternative: a constitutional convention that would likely throw out the baby with the bathwater.
Even the compilation of a federal government listing of agencies and laws at variance with the constitution would be an immense project, likely prioritized with the least constitutional and most expensive parts at the head of the list.
And large parts, though not authorized by the constitution, would have to be retained until they could be constitutionally approved at a later date.
Inherent in the process would be the cleansing of grand numbers of judicial precedent from the law books. But in the final analysis, that SCOTUS would become the most important SCOTUS ever. The new history of the United States would begin with them.
I was a history major in my undergraduate years, with a specialty in military history, and I can tell you just from reading a LOT of contemporary correspondence and so forth that the language doesn't ring true. The rhythm, syntax, vocabulary etc. just don't SOUND like Washington. He had a very individual voice - a practical man's style, but that of the 18th century in which he was reared.
BTW, Bork also believes the 2A is not an individual Right but a State (collective) Right. Good thing he was 'Borked'.
I found this quote from his first State of the Union Address: “A free people ought not only to be armed, but disciplined;”
Not very strong criticism of the decision itself. In principle he's correct.
But the Second Amendment has been badly mauled by the courts and needed to be clarified, conservatively.
Thomas Jefferson did not worry about Politicians, or the people, he knew that power corrupts. He was worried about, as he said, “..the men in Black robes who work in the dark of night..”
He knew they would usurp the Constitiution.
Good thing Wilkinson wasn’t picked!
He’d have been another Souter.
Thank you, I’ll research all the quotes during the week. The source I used was http://www.vtgunsmiths.com/arms/ffquote.html
I cannot see that it does any such thing. The D.C. law was not the result of the ballot box; it was the result of personal ideology, just like judicial activism.
“Good thing he was ‘Borked’ “
Bork is a globalist / elitist, just like GHWB.
What seems to be getting lost in all this is the right to bear arms is specifically spelled out in the constitution whereas the “right” to an abortion has to be squeezed out of some also unmentioned right to privacy.
These brainwashed FDR heads would be laughable if they were not granted self guaranteed lifetime Government Authority. Shall not be infringed is not ambiguous.
To equate the right of an ABORTION with the right to BEAR ARMS is to willfully turn a blind eye to the 2nd Amendment and with the same eye find a right to something that is NOT even mentioned.
To say that Scalia used judicial activism in his decision is to say that the 2nd Amendment does NOT exit!
Wilkinson is plainly a leftist hiding out as a conservative, as did Souter and Stevens in years gone by.
Well, that lets Posner and Wilkinson out of Supreme Court consideration.
Wait, they’re exactly the kind of “conservative” justices that guys like McVain like. Not like that Alito, who shouldn’t have been appointed because “he wears his conservatism on his sleeve.”
I think we should be glad Bush didn’t get Wilkinson on the Supreme Court.
Scalia, clearly, does not fall to Wilkinson’s view that he, Scalia, is an “activist” simply for over ruling a “democratic” decision of an elected body.
Wilkinson fails to separate the activism in the lack of any mandate in the Constitution to DEMAND abortion be legal, versus, the historical interpretation of the 2nd Amendment that does DEMAND a right to bear arms. In terms of “activism” that Wilkinson speaks of, the two situations are not the same.
“If one is concerned about so-called “gun related” crime, it is not the production of guns that needs to be addressed; it is the production of criminal minds.” ©2008, Wuli (who herewith gives permission to Free Republic to publish this)
Notice that in states and localities with high gun sales there is generally lower amounts of gun related crime, per person, than in states and cities that have very restrictive gun laws. Some produce guns and their peaceful use. Others produce criminal minds.
This clown doesn’t care what happened years ago. Wake up Freepers. He’s presenting himself to obama if or when obama wins.
And we already know if a judge can’t read a 27 word sentence, he’s immediately moved to the top of that list.
Proving the importance of how critical SCOTUS appointments really are.
What judicial activism does a US Supreme Court Judge participate in when he’s read the Constitution, understands the Constitution, and upholds the Constitution?
And to ask it rhetorically, for laughs, I’d love for a few FReepers to attempt to answer that.