Roe for the Right

For 35 years, right-wing politicos and commentators have used Roe v. Wade as the leading example of "judicial activism" - a ruling based not on the law of the Constitution but on the policy preferences of the majority justices. Whether that's an accurate assessment or not I'll leave for another day (I don't think it is), but it's interesting to note that the right wingers may have their own Roe on their hands.

Last year, the Supreme Court handed down the Heller decision, in which, by a 5-4 vote, the Court overturned the District of Columbia's strict firearm regulations, construing the Second Amendment as providing an individual right to bear arms in the process. As expected with any close decision breaking that kind of ground, reactions were mixed. What's been surprising is that a couple of conservative heavy hitters have been outspoken in their criticism of the Court's opinion in Heller:

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

'The Roe and Heller courts are guilty of the same sins,' one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.

Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions 'was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.'

You can read Judge Posner's New Republic piece here, and download the article from Judge Wilkinson (with whom I've sparred in the past in Richmond) here. I think they both make valid points on the Court's historical analysis and I applaud Posner for, essentially, admitting that every judicial decision at the Supreme Court level involves some policy determinations.

But what makes the whole issue even more odd is that the Court's position, while authored by Justice Scalia and generally supported by the conservatives, reflects the drift in recent years of liberal scholars on the issue:

For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right. (Warren E. Burger, after retiring as chief justice in 1986, called the individual rights view 'one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen.')

But some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. Professor Levinson’s seminal 1989 article in The Yale Law Journal captured the tone of the enterprise. It was called 'The Embarrassing Second Amendment.'

It may be that the Second Amendment is an anachronism in a 21st Century nation populated by easily obtainable exceptionally lethal firearms. Nonetheless, it says what it says. Of course, therein lies the rub - what exactly does it say?