Skip to comments.Alan Gura: "Heller and the Triumph of Originalist Judicial Engagement"
Posted on 07/10/2009 6:41:48 AM PDT by marktwain
Damon W. Root | July 9, 2009, 4:49pm
Writing in the Virginia Law Review last fall, conservative federal appeals court Judge J. Harvie Wilkinson III took aim at the Supreme Court's landmark gun rights opinion in District of Columbia v. Heller. According to Wilkinson, "Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts." In fact, Wilkinson went so far as to compare Justice Antonin Scalia's majority opinion in Heller with the Supreme Court's famous abortion rights decision in Roe v. Wade, which is not exactly the nicest thing one conservative judge can say about another's work.
Is Judge Wilkinson right? Should the courts practice judicial restraint when it comes to Second Amendment rights? Alan Gura, the brilliant attorney who argued and won Heller before the Court, thinks not. In a compelling and carefully researched new article forthcoming from the UCLA Law Review titled "Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson," Gura explains why the Heller Court got it right. From the abstract:
Judge J. Harvie Wilkinson criticizes the U.S. Supreme Court's landmark decision in District of Columbia v. Heller through the lens of post-Roe judicial conservatism, a doctrine that exalts judicial deference to the political branches above the interest in individual liberty. But that vision is incompatible with the sort of judiciary the Framers established, and Wilkinson's prescription does not lay out neutral guidelines for use of the judicial power. In Heller, the Supreme Court acted exactly according to Constitutional design, enforcing a fundamental right against recalcitrant political forces. Not just conservatives, but all Americans, should rejoice in the decision.
(Excerpt) Read more at reason.com ...
Harvie Wilkinson III should resign. If he is not willing to abide by legislation, the constitution and our bill of rights, he should resign.
In the context of the Fourth Amendment right of persons to be secure in their persons, I don't see anything wrong with a judicial interpretation that such a right includes the right to make medical decisions with the doctor without interference from the state.
However the specific event at issue in Roe wasn't a medical decision--no health problem to the mother; no health problem to the unborn child; no medical issue in the record.
And the consequence of the judicial intervention was to deprive the unborn child of the Constitutional protection provided by the prohibition on deprivation of life liberty and property without due process of law. The result in Roe simply flies directly in the face of specific language in the Constitution.
The Abortion issue should not be in the courts on any other basis--we have a Constitutional Republic. If the majority wants a constitution that provides for a right of Abortion, we need to amend the Constitution to provide for it.
And to be contrasted with the Second Amendment provision which is poorly written and thus a little obtuse but very difficult to interpret other than as it was read in Heller.
There are presently clear Constitutional answers to the issue in both of these cases and there is no excuse for using either question to hold the judicial system hostage to the political answer.
In Heller, the Supreme Court acted exactly according to Constitutional design, enforcing a fundamental right against recalcitrant political forces.
That's a half-truth. The majority in Heller converted an unconstitutional law into a constitutional one, by the techniques of judicial neglect and subterfuge.
The RKBA does not flow to the people via the federal government. It is not "conferred" by the government, onto the people. If the people relinquish their RKBA when imposed by the state or by the fed, then it is the people's fault. Looking to the Court for assistance is naive - the Court is in cahoots with the executive and the legislature to prevent the people from becoming physically powerful enough to threaten government power.
If the same "privacy" and "choice" law were applied to RKBA, then discreet home ownership of full-auto would, legally, not be forbidden (which the 9th Circuit very nearly declared in Stewart).
Actually, it would be great fun to approach a suitable RKBA case with Roe v. Wade logic: as a Congressionally-declared member of the US militia, implicitly tasked with self-arming and home defense, discreetely making & installing a DIAS in my garage should be entirely permissible under privacy rules.
“the Court is in cahoots with the executive and the legislature to prevent the people from becoming physically powerful enough to threaten government power.”
Perhaps, but with Americans having purchased since Obama’s election, well over 600,000,000 rounds of ammo, a case can be made that the power still lies in the hands of the people.
It was the belief of the Founders that power should always be in the hands of the people. The following is typical of such beliefs:
“As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” (Tench Coxe in Remarks on the First Part of the Amendments to the Federal Constitution’ under the Pseudonym A Pennsylvanian’ in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)
That was the hope of Tench Coxe, and it seems Americans agree with him.
True, no small arms equipped man or group of men can withstand the US military, but losing a battle is hardly losing a war.
Should anyone doubt this, consider that Russia has declared victory over the Chechens at least six times.
I agree. But my point was that Gura's claim of "success" has to be tempered by reality. The United States Supreme Court, US Congress, and the president (all parties) have successfully limited the power of the people when it comes to use of force of violence.
Conventional wisdom is that checks and balances work to preserve personal liberty - my point is that checks and balances only serve as turf battles between the branches, and NONE of the branches serves to protect personal liberty. Either the people stand up and demand corrective action from their government (e.g., Congress to impeach judges), or they let the government continue to encroach beyond the agreed limits expressed in the Constitution. It's perfectly clear to me that the people aren't demanding corrective action.
I’ll go one step further here - all rights are individual rights. The only authority the fed has is for those specifically spelled out in the constitution. The have made a mockery of the commerce clause and others to extend their ridiculous reach beyond the allowed federal powers. The fight should be centered between the citizens and their respective states. Each state should have spelled out thier allowed powers in their local charters/constitutions and everything else should remain with the people.
Truth is the only things the people should not be allowed to do are those that specifically infringe upon the well-being of other people. Murder, rape, kidnapping, theft, fraud, etc. Beyond that the people should be left the hell alone.
And also in my joyful little paradise the only taxes levied should be for specific purposes - none of this general funds crap - and limited to the period for which it is required. Build a bridge - fine takes a year to build a bridge - tax for one year and pay for it. Repair the highway potholes - fine taxes for one summer then the end of it. Sure there are some things that last longer - say the Army, Navy, State department, Judges, jails, etc.
But dammit - I’m sick and tired of people tellin me how to live my life and takin my money -— MY MONEY!
sigh - ok got that off my chest. you all have a good weekend.
“..they let the government continue to encroach beyond the agreed limits expressed in the Constitution.”
What a concise and accurate summary of our present situation!
Having agreed with you on that excellent line, I still disagree on the level of government interference with the citizens Constitutional guarantee of the use of force to defend life/property.
In the vast majority of states, the citizen has regained the right to defend him/herself with force.
Progress towards the return to a historic America manner and amount of government is occurring, in a few areas, at least.
My statement, "successfully limited the power of the people when it comes to use of force of violence," had in mind certain clauses of the 1934 NFA and 1968 GCA. These laws in fact do limit the ability of the people to project force. The 1934 Miller case stands for the proposition that the government cannot even TAX the ability of the people to obtain instruments of violence used by the organized militia, e.g., short barrel shotguns and self-fire weapons. But the majority, in Heller, reads Miller for the opposite of what Miller actually says. Heller says if a weapon is not in ordinary use (even if that condition is the result of an unconstitutional law), then the government may continue to apply the unconstitutional law. I call that "success by lapse of time and subterfuge."
Not only are the people denied access to certain classes of weapon, the people are also victims of completely corrupt (Orwellian) jurisprudence. Again, the people don't seem to mind being told that "up" is "down," etc., and are going to get exactly what's coming to them.
Another quick example, that being the Presser case. Presser stands for the proposition that a local/state law requiring a parade permit does not infringe RKBA. Within its opinion, the SCOTUS noted that the 2nd amendment doesn't extend to or operate against the states, but that states may NOT prohibit RKBA, because it deprives the feds of the resource of an armed populace.
100% of federal courts have bastardized Presser, and 100% of federal courts make the utterly false assertion that Presser means states are free to prohibit RKBA, until the feds step in and apply the 2nd amendment against the states.
And the people are AGAIN subjected to tyranny by the government. A defendant is prohibited from even arguing the RKBA, directly, or pointing to a jury what the Miller case actually says. The Courts are preventing the people from forming an impression of the truth.
And the people yawn, and the NRA thinks "everything is moving in the right direction."
Rights aren't "created" by the Constitution, they're protected by the Constitution. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Again, largely you are correct in that citizens were once able to own crew served weapons (now called artillery, cannon, etc.). As a matter of fact, citizens even owned war ships - and operated them, too.
The Continental Army got most of its cannon from individuals.
Even now, collectors do own tanks and war planes.
Hmmmn - I don’t have either a tank or a fighter. I demand equality! Gimme a tank AND a fighter, Obama. Equality and all that, didn’t you say?
Waiting for the above to occur will be somewaht later than the arrival of Godot.