Posted on 10/20/2008 8:05:17 PM PDT by RKV
...
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.
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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.”
“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.”
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.” ...
“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.”
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.
“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.”
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(Excerpt) Read more at nytimes.com ...
BANG!
There are still Republician judges living in the time before the incorporation of the BOR who thinks incorporation of any is wrong. Sorry the 14th amendment changed that. If it was left to them all ao called “conervative” rights would be left to the destruction by the states. I will not stand for that BS. Yes Federalism is great but now when states can walk all over the BOR. This idea was changed properly by amendment of the Constiution. Why these egg heads can not see that is beyond me. A POX on these Judges......
Amen.
[Justice Washington in Corfield, 1825] endorsed the colonial-era conception of the terms "privileges" and "immunities," concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.4 Id., at 552.
Justice Washington's opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion.
-snip-
Furthermore, it appears that no Member of Congress refuted the notion that Washington's analysis in Corfield undergirded the meaning of the Privileges or Immunities Clause.
--J. Thomas, Saenz v Roe, dissenting.
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Contrast that with Robert Bork:
[The P&I] Clause is inscrutable and should be treated as if it had been obliterated by an ink blot.
--The Tempting of America 166
Bull Crap!
Abortion is an issue for the States. The right to keep and bare arms is guaranteed by the Second Amendment. There are no suitable gun control measures for local conditions.
Where does the NYT get off calling these leftist judges conservatives?
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