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Wilkinson's Restraint:

Judge Wilkinson's critique of the Supreme Court's Heller decision, referenced by David below, should not be a surprise. Judge Wilkinson has always been uncomfortable invalidating legislative acts on constitutional grounds. To Judge Wilkinson, the proper exercise of "judicial restraint" requires an extreme reluctance to invalidate legislative acts. Unless compelled by precedent, Judge Wilkinson has typically preferred to defer to the "political" branches. He made this explicit in his concurrence to the en banc Fourth Circuit's decision in Brzonkala v. VPI, in which the court struck down portions of the Violence Against Women Act for exceeding the scope of the interstate commerce clause. In his view, the case was "especially difficult" because "it pits the obligation to preserve the values of our federal system against the imperative of judicial restraint." He added:

it is a grave judicial act to nullify a product of the democratic process. The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation. Respect for the institutions of self-government requires us, in all but the rarest of cases, to defer to the actions of legislative bodies. In particular, "[t]he history of the judicial struggle to interpret the Commerce Clause ... counsels great restraint before [we] determine[ ] that the Clause is insufficient to support an exercise of the national power." Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). I would add to that cautionary tale not only the judiciary's parallel experience with economic due process but also the activist legacy of the Warren and early Burger Courts. By considering today's decision in light of history's often cold assessment of the product of those prior eras, we may ascertain whether we forsake to our peril the high ground of judicial restraint.
In this opinion, Wilkinson made explicit his unease with the Rehnquist court's federalism jurisprudence, an unease also demonstrated in his subsequent decision in Gibbs v. Babbitt, in which Wilkinson voted to uphold the application of the Endangered Species Act to activities that could harm red wolves in North Carolina -- a decision that prompted a scathing dissent by then-Judge Luttig, author of the court's Brzonkala decision.

Judge Wilkinson is from a generation of legal thinkers whose view of judicial review was defined in opposition to the Warren and Burger Courts. For some in this generation, the problem was that these courts were too quick to overrule the political branches on flimsy constitutional grounds. For others, the problem was that the Court was so willing to overrule the political branches at all. This is why some conservative judges and thinkers embraced the Rehnquist Court's federalism jurisprudence while others, including Judge Wilkinson, viewed it with such trepidation. Thus, while I find Judge Wilkinson's critique of Heller largely unconvincing, I do not believe it is a surprise.

Related Posts (on one page):

  1. Wilkinson's Restraint:
  2. Judge Wilkinson on Roe and Heller:
A.S.:
Shouldn't this post be titled "Wilkinson Pouts"? Oh, right, Wilkinson is male, so nobody would ever dream of characterizing his reaction that way.
10.22.2008 10:59am
merevaudevillian:
One thing that's a bit curious about Wilkinson: he almost sounds reluctant to carry on with Marbury v. Madison.
10.22.2008 11:15am
Roger Schlafly (www):
The problem with Wilkinson's argument is that he treats Heller as creating a novel constitutional right. But Heller just reaffirmed the way the 2A had been widely understood by much of the population for 200 years. Heller is also consistent with all previous Supreme Court rulings on the subject.
10.22.2008 11:27am
TSH:
A.S.:


Shouldn't this post be titled "Wilkinson Pouts"? Oh, right, Wilkinson is male, so nobody would ever dream of characterizing his reaction that way.



Hahaha.....What?!!! Will you point out for me where his gender becomes an issue? Or did you come up with that zinger some time ago, attempt to save it for an opportune comment, and simply run out of patience?
10.22.2008 11:33am
DiverDan (mail):
TSH must have missed the comments on the post entitled "Palin Pouts"
10.22.2008 11:42am
MarkField (mail):
Wilkinson's attitude has a long history among justices on the Court. Felix Frankfurter took the same approach. With some caveats, so did Holmes.
10.22.2008 11:56am
TSH:
Ah, now I see...I did not know that "Palin Pouts" existed.

I still don't think it was worth getting upset over. However, if it makes A.S. feel better, I am male and was once accused of pouting. It turns out that I was eating sour candy, hence the confusion.
10.22.2008 12:01pm
Guesty McGuesterson (mail):
It would be Wilkinson whines, idiots. A little alliteration goes a long way. Would certainly never happen to a man, let alone a male head of state or potential head of state.

Idiot.
10.22.2008 12:04pm
Cornellian (mail):
Respect for the institutions of self-government requires us, in all but the rarest of cases, to defer to the actions of legislative bodies.

Note, however, that this "extreme deference" approach is not to be found in the text of the Supremacy Clause or anywhere else in the Constitution.
10.22.2008 12:25pm
CrazyTrain (mail):
Very odd that one would view Brzonkala as a legitimate exercise of judicial review and Heller not. (I would say they are both "legitimate" - although I think Brzonkala/Morrison was wrong.) The textual basis for Heller is much, much, much stronger -- there is a clear negative restraint being put on government power; something that is tailor-made for judicial review. In Brzonkala/Morrison, it was a question of the scope of expressly granted powers (the Commerce Clause and sec. 5 of the 14th Amendment) to the legislature -- an area that in my mind is much less amenable to clear judicial standards.
10.22.2008 1:21pm
CrazyTrain (mail):
Note, however, that this "extreme deference" approach is not to be found in the text of the Supremacy Clause or anywhere else in the Constitution.

Very good point.
10.22.2008 1:22pm
Oren:

The textual basis for Heller is much, much, much stronger -- there is a clear negative restraint being put on government power; something that is tailor-made for judicial review. In Brzonkala/Morrison, it was a question of the scope of expressly granted powers (the Commerce Clause and sec. 5 of the 14th Amendment) to the legislature -- an area that in my mind is much less amenable to clear judicial standards.

IMO, Heller is a question of the scope of the preambulatory phrase in the 2A just as much as Morrison is a question of the scope of the commerce clause. Both were decided correctly (again, IMO) but I don't think that they are distinguishable as you claim.
10.22.2008 1:26pm
zippypinhead:
Wilkinson:

whines
waffles
wiggles
wimpers
whacks-out
whatever...

Irrelevant. Point is simply that Judge Wilkinson's judicial philosophy would give significantly more deference to the legislative branch than the Court has done at pretty much any time since Marbury v. Madison was handed down. He's rather far outside the mainstream view on this point (especially since we're dealing with an enumerated right in Heller). And he clearly rejects the somewhat more controversial view that the Court should bias toward inherently countermajoritarian leanings. None of that is new information for folks who've spent much time lurking about the Fourth Circuit.

Posner, on the other hand, is... Posner. Res ipsa loquitur. A somewhat cynical appellate litigator friend once referred to Posner and Easterbrook as Exhibits A and B for the proposition that there should be a MAXIMUM IQ ceiling for appointment to the Federal bench (my friend also included Kozinski as Exhibit C, but since Judge Alex clearly failed to master basic web security protocols on his family server, I think there's a chance he might actually fall comfortably under whatever IQ cap you want to adopt).
10.22.2008 1:30pm
Dilan Esper (mail) (www):
The problem with Wilkinson's argument is that he treats Heller as creating a novel constitutional right. But Heller just reaffirmed the way the 2A had been widely understood by much of the population for 200 years. Heller is also consistent with all previous Supreme Court rulings on the subject.

Gun rights advocates make this argument all the time, but it is circular. Look, I agree with Heller. But there's no doubt that in the only sense of the term that matters, Heller advanced a "new" right. Not because the right isn't in the Constitution-- it is-- but because before Heller, the prevailing practice in the federal courts was to uphold gun control laws. And the fact that Heller can be technically distinguished from Miller doesn't detract from the fact that under Miller, even very restrictive gun control laws were being upheld. Now, they will be struck down under federal law, for the first time in this country's history.

The point is, someone who is committed to judicial restraint, as Wilkinson is, is not going to be persuaded by the argument that Heller is different from other cases where rights were recognized because the Heller right is "in" the Constitution. Wilkinson is operating from a realist mindset-- things are only really "in" the Constitution when courts recognize and enforce them consistently. And his position is that before one takes that step, one must be very careful and weigh all the consequences. You can agree or disagree with this position, but it's not a position that's going to be swayed by a claim that Heller simply recognized something that was already there. In Wilkinson's world, the recognition of the right is the big step to be taken carefully.
10.22.2008 1:32pm
Oren:

Not because the right isn't in the Constitution-- it is-- but because before Heller, the prevailing practice in the federal courts was to uphold gun control laws.

This is an anomaly caused by the SCOTUS' refusal to hear appeals from the various circuits when they took the collective-rights interpretation of the 2A. They refused and therefore didn't generate binding precedent while still concurring-in-fact with the practice.

I support the general cert process in most cases but in this instance, it failed miserably.
10.22.2008 1:34pm
Dilan Esper (mail) (www):
Very odd that one would view Brzonkala as a legitimate exercise of judicial review and Heller not.

Remember Crazy, that Brzonkala came when US v. Lopez and New York v. United States were the two most recent commerce clause cases. Wilkinson might have gone the other way on the VAWA if there weren't a couple of important and recent Supreme Court precedents to work with.

In contrast, as noted in my post above, Heller was departing from a prevailing approach to Second Amendment questions.
10.22.2008 1:35pm
Roger Schlafly (www):
That is the only thing that was novel about Heller -- it disagreed with several decades of lower court decisions. But Heller was completely consistent with previous Supreme Court decisions, and completely consistent with the general understanding of the 2A by millions of Americans for as long as anyone can remember.

It would have been a more radical change for Heller to go the other way. That would have effectively eliminated the 2A from the Constitution.
10.22.2008 1:43pm
Obvious (mail):
"To Judge Wilkinson, the proper exercise of "judicial restraint" requires an extreme reluctance to invalidate legislative acts. Unless compelled by precedent, Judge Wilkinson has typically preferred to defer to the "political" branches."

This, to a non-lawyer, creates an obvious legal/logical tension. Given Wilkinson's "extreme reluctance to invalidate legislative acts," he feels Heller, for example, was decided incorrectly. Yet now Heller is precedent, so now he feels compelled, presumably, to concur in future decisions with Heller. He therefore supports a system that in his view is doubly impotent to correct legal error: 1) it is unable to correct unconstitutional acts of the legislature, and 2) it is unable to correct unconstitutional interpretation of past judicial decisions. I submit if this is what Wilkinson truly believes, he must suffer from dyspepsia on a regular basis.
10.22.2008 1:45pm
Kazinski:
I don't think Palin is the kind that would pout, she'd likely just go out and kill something to make herself feel better,

But if she did pout it would just make her look sexier.
10.22.2008 1:50pm
Dilan Esper (mail) (www):
But Heller was completely consistent with previous Supreme Court decisions, and completely consistent with the general understanding of the 2A by millions of Americans for as long as anyone can remember.

Again, I think you are overselling your claims here. You can certainly argue that Heller is consistent with Miller, but it's not a slam dunk and it depends on how broadly one decides to read Miller (which was a very ambiguous and poorly written decision).

You act as if those courts who were endorsing a collective rights interpretation were making it up out of thin air. Quite the contrary-- this was what a lot of people, including judges, scholars, and ordinary Americans, thought the Second Amendment meant for a long time. And as Oren noted above, the Supreme Court wasn't granting cert. to correct this interpretation, which is at least some sign that there were members of the Court who agreed with it.

In any event, for Wilkinson, the crucial issue is that Heller changed an established interpretation of the law. That's why he wants a high justification for it. Whether or not it is actually the correct interpretation of the Second Amendment is, for Wilkinson, a second-order concern.
10.22.2008 1:57pm
pintler:

And the fact that Heller can be technically distinguished from Miller doesn't detract from the fact that under Miller, even very restrictive gun control laws were being upheld. Now, they will be struck down under federal law, for the first time in this country's history.


Historical quibble: I hear Heller described in similar terms ('for the first time in the country's history') fairly often, as if the result in Heller overturned practice dating to the days of the founding fathers. In fact, Heller explicitly allows restrictions first imposed as recently as the 1930's, and (as yet, anyway) only explicitly forbids total bans of very recent origin.
10.22.2008 1:58pm
Dilan Esper (mail) (www):
This, to a non-lawyer, creates an obvious legal/logical tension. Given Wilkinson's "extreme reluctance to invalidate legislative acts," he feels Heller, for example, was decided incorrectly. Yet now Heller is precedent, so now he feels compelled, presumably, to concur in future decisions with Heller. He therefore supports a system that in his view is doubly impotent to correct legal error: 1) it is unable to correct unconstitutional acts of the legislature, and 2) it is unable to correct unconstitutional interpretation of past judicial decisions. I submit if this is what Wilkinson truly believes, he must suffer from dyspepsia on a regular basis.

1. You are ignoring that the weight one gives a precedent depends on how long it has been established and how many courts and individuals have relied upon it. Thus, Heller doesn't automatically, in Wilkinson's world, become a precedent that can never be overturned. That takes time (and presumably Wilkinson is willing to overturn even a well-established precedent-- he just wants to see what he believes is an exceedingly compelling justification for doing so).

2. If you don't understand why someone would have this view, you need to study some 20th Century legal history. Essentially, you had a mess of a situation with the Court striking down popular economic regulations on commerce clause and due process grounds in the early part of this century, with the matter finally coming to a head when the Court was striking down legislation that the public felt was necessitated by the emergency of the Great Depression. So the Court pulled back, only to strike down a bunch of state laws on civil rights, criminal procedure, and personal liberties in the 1950's, 1960's, and 1970's under Chief Justices Warren and Burger. Wilkinson and others concluded that the problem was that the Court was using its power to declare laws unconstitutional way too frequently and that there needed to be heavy justifications shown to invalidate popular laws.

Now that position may be wrong. But I don't see how it is paradoxical-- it is a perfectly plausible interpretation of what went wrong the last 100 years.
10.22.2008 2:03pm
Roger Schlafly (www):
the crucial issue is that Heller changed an established interpretation of the law.
But that is just not true. It only changed the interpretation used by the lower federal courts, DC, Chicago, and NYC. That's all. For most gun owners, it just reinforced what they already believed. Most Congressmen, state legislatures, state courts, etc already believed in an individual right to own guns. Even the US Supreme Court decisions, to the extent that they mention gun rights, are overwhelmingly pro-gun. And yes, if you read what US v Miller actually says, it is a pro-gun decision.
10.22.2008 2:48pm
Dilan Esper (mail) (www):
But that is just not true. It only changed the interpretation used by the lower federal courts, DC, Chicago, and NYC.

It wasn't just federal courts in three cities. It was almost all of the federal courts, plus legal scholars, plus a good segment of the populace, plus city officials in many big cities throughout the country, as well as a number of suburbs.

For most gun owners, it just reinforced what they already believed.

Sure. But for many city dwellers, it was a profound departure from what they believed.

Most Congressmen, state legislatures, state courts, etc already believed in an individual right to own guns.

Again, that's true enough, though bear in mind the state officials and state courts were interpreting STATE constitutions, which were effective precisely because it was believed that the federal judiciary would not invalidate gun control laws.

Even the US Supreme Court decisions, to the extent that they mention gun rights, are overwhelmingly pro-gun. And yes, if you read what US v Miller actually says, it is a pro-gun decision.

Here, you are just off the deep end. The Supreme Court avoided for years taking gun rights cases, despite knowing full well that the lower courts were upholding gun control laws under the collective rights doctrine. And further, Miller is totally ambiguous, which is why many courts and legal scholars concluded that it endorsed a collective right. The other Supreme Court decisions were complete dicta on the issue of gun rights.

I'm not saying that there isn't a plausible case that Heller is consistent with Miller. I am saying that you are pretending that decades of established and consistent practice in this area never happened, because for some reason it is extremely important for you to pretend that Heller didn't change things at all.

Heller was a big change-- the federal judiciary was not in the business of invalidating gun laws before and it is now. That's the reality. All the rest is just creative argumentation to attempt to obscure this obvious fact.
10.22.2008 3:17pm
Smallholder (mail) (www):
I'm tired of all those ACTIVIST judges overturning legislation because the judges "feel" that the laws violate the constitution. All controversial issues should be decided by voters and lawmakers, not our "black robed masters."

Wilikinson is exactly correct: We need judicial restraint and nominees who will defer to the majority will!

What?

Heller overturned a gun ban?

I agree with that.

So...

Nevermind.

Only judges who believe in desegregation and gay equality are activist.
10.22.2008 4:22pm
JMB (mail) (www):
Many a Precedent has been overruled by Kings, this would also include, those who have created them.
10.22.2008 4:28pm
Michael B (mail):
From the NYT piece referenced in David's post, with emphasis and inserting numerical designations:

"In his article, Judge Wilkinson wrote that he "readily agreed" that Roe "involved the more brazen assertion of judicial authority." But he added that the Roe and Heller cases shared a number of common flaws, including [1] "a failure to respect legislative judgments," [2] "a rejection of the principles of federalism" and [3] "a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.""

So Wilkinson himself acknowledges a "more brazen" act in the Roe decision which, minimally, lends at least some ambiguity to his analogy/equivocation.

Further, concerning the "common flaws" he posits are shared by Heller and Roe, (1) and (2) are similar and Marbury alone largely refutes that concern. Likewise, the "complex endeavor" concern voiced in (3) doesn't tell us terribly much. Both Roe and Heller reflect highly problematic societal issues and conundrums, arguably Gordian Knot paradoxes since basic rights are at issue on the one hand while basic contrary rights and perfectly valid concerns are also at issue. The very job of a judiciary is to "manage" those conundrums at a legal, practical and societal level - hence his concern with a "complex endeavor," absent further elucidation, does not reflect a very substantial complaint. (3) reflects a valid slippery slope concern, but the very purpose of the legal system, in a prominent sense, is to manage slippery slopes.

Wilkinson certainly locates an absolutely fundamental principle with "... it is a grave judicial act to nullify a product of the democratic process." Still, the general problem in all this is that there are an entire array of competing fundamental principles and the societal, moral/ethical, legal, epistemic, etc. set of problems involved cannot be solved via recourse to but one of those principles. It's too intractably problematic and even paradoxical on too many levels; there is no single sword (power) that can sever the Gordian Knots inherent in these issues, not in a heterogenous and democratic order. Federalism and the "democratic process" are foundational, but other Constitutional tenets are at issue as well.
10.22.2008 4:48pm
bad imitation (mail):
Coming from a judge who looked askance at the Burger and Rehnquist courts, the glorification of "legislative process" is itself disingenuous. As I recall my liberal polysci professors at Berkeley in the 1970's, the whole premise of okay judicial activism was the fact that "interest groups" had bought off the legislatures and so they were only nominally democratic. So now he pretends that they're bastions of democracy after all?
10.22.2008 4:48pm
Obvious (mail):
DEsper: "If you don't understand why someone would have this view, you need to study some 20th Century legal history. Essentially, you had a mess of a situation with the Court striking down popular economic regulations on commerce clause and due process grounds in the early part of this century, with the matter finally coming to a head when the Court was striking down legislation that the public felt was necessitated by the emergency of the Great Depression. So the Court pulled back, only to strike down a bunch of state laws on civil rights, criminal procedure, and personal liberties in the 1950's, 1960's, and 1970's under Chief Justices Warren and Burger. Wilkinson and others concluded that the problem was that the Court was using its power to declare laws unconstitutional way too frequently and that there needed to be heavy justifications shown to invalidate popular laws."

Well, I have studied some 20th century legal history. I would summarize it somewhat differently from you. As politicians in the Progressive era tried to expand their powers beyond that sanctioned by the Constitution, they initially found themselves stymied by the Supreme Court's rulings, acting as the "last bastion" in the defense of individual rights, as envisioned by the founders. They, the politicians, had the opportunity to attempt to amend the Constitution so as to allow their plans to go through, but found that threatening the court (switch that saved nine) was faster and amazingly effective.
10.22.2008 5:00pm
Repeal 16-17 (mail):
One thing that's a bit curious about Wilkinson: he almost sounds reluctant to carry on with Marbury v. Madison.


I've never heard a judge have such a negative reaction to judicial review. If he doesn't like judges ruling on the Constitutionality of laws, how would he have the Constitution be enforced? I agree with him that judicial review is overly used by the federal courts, but I think in his effort to oppose judicial activism he's gone to the other extreme.
10.22.2008 5:11pm
Joel Rosenberg (mail) (www):
When Wilkinson's right, he's right: Heller does show "a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation." You know, like, say, Brown. Or Gideon. Or Miranda.
10.22.2008 5:17pm
Dilan Esper (mail) (www):
Well, I have studied some 20th century legal history. I would summarize it somewhat differently from you. As politicians in the Progressive era tried to expand their powers beyond that sanctioned by the Constitution, they initially found themselves stymied by the Supreme Court's rulings, acting as the "last bastion" in the defense of individual rights, as envisioned by the founders. They, the politicians, had the opportunity to attempt to amend the Constitution so as to allow their plans to go through, but found that threatening the court (switch that saved nine) was faster and amazingly effective.

There may be a bit of validity to that story with respect to the Commerce Clause. However, you overlook 2 HUGE things:

1. As the national economy expanded, more and more issues became "interstate". This is something that libertarians often miss. There simply was less "interstate commerce", under any definition, in 1787 than there was in 1933. (And we have more interstate commerce still now.) Now does that justify Wickard v. Filburn? No, it doesn't. But it means that a heck of a lot of the New Deal would be constitutional even under the most restrictive formulations of the Commerce Clause. The justices who were resisting the expansion of the commerce power simply were not recognizing the vast expansion of interstate commerce in an increasingly interconnected society that demanded national solutions to national problems.

2. Many of the pre-New Deal decisions struck down economic legislation under the Due Process Clause. That was pure judicial activism-- the due process clause had nothing to say about the substance of economic legislation other than, perhaps, that it required a rational basis.

So most of the caselaw you are referring to was clearly wrongly decided. It wasn't a valiant fight for constitutional liberty but rather simply the imposition of justices' personal views of economic regulation.
10.22.2008 5:55pm
Dilan Esper (mail) (www):
When Wilkinson's right, he's right: Heller does show "a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation." You know, like, say, Brown. Or Gideon. Or Miranda.

I am not sure what the source of the snark is here, but even though those three cases are rightly decided (although I think some would quibble about Miranda), they really did cause big upheavals and involved the courts in massive long-term projects. And therefore I think Wilkinson would say that you would only want to risk a Brown-style upheaval if you were convinced that the principle was equally compelling to Brown. Now, again, I am not where Wilkinson is, and I have no objection to Heller. But that doesn't mean that Wilkinson doesn't have a colorable argument here.
10.22.2008 5:59pm
Joel Rosenberg (mail) (www):
The SCOTUS doing the right thing -- in Brown, Gideon, Miranda and/or Heller -- will, of necessity, create an upheaval when it's as big a deal as saying that, respectively: separate but equal is horse hockey; the Sixth Amendment doesn't say "if you can afford it"; the Fifth Amendment actually does protect you against self-incrimination and you kinda oughta be told that; and the "right of the people to keep and bear arms" means that there's a right of the people to keep and bear arms.

The problem in all of those cases, arose (in my opinion) from longstanding, fundamental, pervasive errors, and fixing those isn't going to be quick or easy, largely because they're longstanding, and pervasive. Heller just hits the "fundamental" part.

So I think, on that, Wilkinson is right -- that the reverberations (I'd say "emanations" in a different crowd) of Heller will be echoing for years, until stuff is straightened out -- but that's because, well, rights are involved, and rights are a big deal, and when there's been such widespread perversions of the right to keep and bear arms as, say, the DC or Chicago bans (or the NYC or CA or NJ hoops within hoops to jump through, or ...) it's going to take a lot of litigation to straighten them out.

(As an amateur in this, I think it would have made more sense to use a strict scrutiny test, but that's a side issue; Wilkinson, in my quick reading of his article, didn't explore it.)

Further, I think he (and others) have a very good point in their criticism of Scalia's waving away of the possibility of the Supremes taking a very serious look at certain prohibitions.

Why, for example, should the right to keep and bear arms be presumed to vanish on the steps of city hall? Why shouldn't a felon whose sentence has expired have the right to keep and bear a handgun to protect himself and his family? Perhaps there are reasons why the right to keep and bear arms should be circumscribed in such ways, but, hey, what's the rush to judgment?

So, yeah, I'm being snarky.
10.22.2008 6:23pm
JMB (mail) (www):
"I've never heard a judge have such a negative reaction to judicial review."

I know of at lest 20 judges who have had a much more negative reaction to a supposing of an absolute judicial veto empowering, and many signers of this Federal Constitution have also.
10.22.2008 6:39pm
Nunzio:
The only somewhat recent justice I can think of who follows Wilkinson's views on judicial restraint was Justice White.
10.22.2008 6:58pm
Dilan Esper (mail) (www):
I know of at lest 20 judges who have had a much more negative reaction to a supposing of an absolute judicial veto empowering, and many signers of this Federal Constitution have also.

I don't think there's any evidence of any signers of the Constitution, let alone "many" of them, who didn't think that judges would, as part of their obligation to interpret the law, interpret the Constitution and resolve conflicts between statutes and the Constitution.

When you confer the judicial power to a Supreme Court and such inferior federal courts as Congress authorizes, and provide that the Constitution is the supreme law of the land and prevails over federal statues, judicial review is, shall we say, a rather probable result.
10.22.2008 7:13pm
Roger Schlafly (www):
The Supreme Court avoided for years taking gun rights cases, ... Miller is totally ambiguous
Miller is crystal clear on what it actually decided. The only ambiguity was how the SC might decide other cases, when the SC was avoiding the subject. So both pro-gun and anti-gun groups would quote Miller in their arguments.

I am not saying we have a pro-gun consensus in this country, but the view that we have a constitutional right to own guns is the dominant view among the general public, and it has been for a very long time. Just look at how few politicians are willing to criticize Heller. Not even anti-gun politicians like Obama are willing to criticize Heller.

But if Heller had gone the other way, you would have seen many millions of angry Americans. It might have even elected John McCain.

The activist opinions are those which create some right or power that no one knew existed until an SC opinion. Heller does not.
10.22.2008 8:48pm
Oren:

And yes, if you read what US v Miller actually says, it is a pro-gun decision.

That fact has eluded the trained minds of every appeals court judge for the better part of a century, with the implicit blessings of every Supreme Court until this one.

Not that I don't approve of Heller, but I think that Miller was, at the absolutely most generous, incomplete exegesis of the 2A.
10.22.2008 9:08pm
Roger Schlafly (www):
I don't think that anyone really believed that collective right interpretation of the 2A. It was just some legal fiction that federal judges dreamed up in order to dispose of gun cases more easily. Everybody knew that it was bogus, and that sooner or later, the Supreme Court would have to take a stand on the issue. Yes, Miller was "incomplete exegesis of the 2A".
10.22.2008 9:32pm
Oren:
Roger, every circuit court and appeals court that took up the matter held that the 2A was a collective right. For 75 years. If you think every single one of those hundreds of judges didn't really believe what they wrote then I don't know how to respond. Surely you must mean something other than what you've written.
10.22.2008 9:59pm
Tom Perkins (mail):

You act as if those courts who were endorsing a collective rights interpretation were making it up out of thin air.


They did. There is no historical or theoretical basis for the "collective right" interpretation, it was invented from whole cloth decades after the last amendment to bear on the 2nd was adopted.

Miller is also perfectly clear in it's exact finding (lacking evidence that the sawed off hotgun was ordinary militia equipment--it was) the court could make no determination of the defendant's possession of in relation to the 2nd amendment. It is also clear in it's implication--that the 2nd bears on a right to possess ordinary militia--military--equipment privately.

Yours, TDP, ml, msl, &pfpp
10.22.2008 10:36pm
Tom Perkins (mail):
of in /= of it in
TDP, ml, msl, &pfpp
10.22.2008 10:37pm
Oren:
Tom, stating the result of Miller without also noting that the Supreme Court refused cert on dozens of appeals to CAs is disingenuous. Yes, I know the mantra, "refusal of cert doesn't mean anything". Except it does. It means quite a bit when all the CAs agree for 75 years and you don't say peep. Refusal of cert in one case means nothing, refusal for 75 years speaks volumes.
10.22.2008 10:49pm
ReaderY:
The court's legitimacy is at its apogee when it deals with specifically enumerated constitutional limits on governmental power, particularly when there is an established interpretative tradition.

I have been much more respectful of the court when it makes a decision I believe is incorrect on a matter clearly intended to be within its power to decide then when it involves itselfs in matters not intended to be its domain.

For example, even if I disagree with a judicial ruling on what constitutes a reasonable search and seizure, or cruel and unusual punishment, the fact that these things are enumerated limits on governmental powers whose exact meaning is to be elucidated by courts tempers any criticism I may have, because I have to acknowledge the court is simply doing its job however incorrectly I may think its decision. But when judges decide that principles which have historically had the support of many thinkers are "irrational" because they disagree with them, or manufacture new fundamental rights for no other reason but that they like them, the court is welding power never given it. Totally different matter.

One can disagree with what the 2nd Amendment means, but interpreting the "right of the people" to refer to an individual right seems within the realm of attempts to interpret the actual Constitution, even if incorrect, rather than efforts at creative judicial legislation.
10.22.2008 11:22pm
Roger Schlafly (www):
Oren, the federal courts are in 100% agreement on all sorts of wacky things that no serious person would truly believe. That is the nature of the federal courts. It is monkey see, monkey do. One judge figures out a way to dispose of gun claims, and other judges copy it. Before long, it becomes a precedent that they can all cite.

Everybody knew that someday the supremes would rule, and when it did, all those cert denials would mean nothing. It would really be an activist SC if nullified the entire 2A just because 60 years ago some federal judge misread Miller and all the others copied him.
10.22.2008 11:23pm
Tom Perkins (mail):

Refusal of cert in one case means nothing, refusal for 75 years speaks volumes.


Yup. It speaks of cravenness and intellectual dishonesty on the part of the court.

Yours, TDP, ml, msl, &pfpp
10.22.2008 11:36pm
Tom Perkins (mail):
If you can believe it, I anticipate never making an argument before that bench...

Yours, TDP, ml, msl, &pfpp
10.22.2008 11:38pm
Oren:
OK Roger, I understand. 100% of the judiciary could say legal thing X and you would assert that not only are they all wrong and, in fact, it is the case that ~X but moreover that it is unreasonable to believe X.

Now, I can understand the former claim -- the judiciary has erred in some spectacular fashion (and with 100% uniformity -- not a single judge in thousands has objected, no less). The latter claim, however, is nigh-unintelligible. Normal logic suggests that even if 100% of the judiciary erred in holding X (and I'm holding out that possibility) then surely that error must at least be reasonable.
10.22.2008 11:43pm
Oren:
Tom, on that much we agree -- the Court had a duty to grant cert in those cases and settle it one way or the other. Given that the court abdicated its duty, the opinions of the CAs were binding law. It is clear then that Heller was a radical departure from the accepted jurisprudence of the 2A (a welcome one, but radical nonetheless) which for 75 years had been one of collective rights.
10.22.2008 11:47pm
interested observer:
Oren, you are aware that the Supreme Court denied cert. in Emerson? And that Emerson was the first federal appellate opinion which actually spent more than a paragraph examining the Second Amendment?

You're also aware that Miller was the highest authority on the meaning of Miller, not what not what lower courts imagined it to contain in their rush to dispose of annoying cases?
10.23.2008 12:05am
Jon Roland (mail) (www):
Tom Perkins:

Miller is also perfectly clear in it's exact finding (lacking evidence that the sawed off hotgun was ordinary militia equipment -- it was) the court could make no determination of the defendant's possession of in relation to the 2nd amendment. It is also clear in it's implication -- that the 2nd bears on a right to possess ordinary militia -- military -- equipment privately.

Most analysts seem determined to overlook that the question before the court was whether to apply a tax statute, in that case, on sawed off (or too short when made) shotguns. Miller did not argue, as Stephen Halbrook did in United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991), that it was unconstitutional to impose a tax, refuse to accept payment of it, then prosecute as a crime the possession of an untaxed item. Miller made a 2A argument presumably because by the precedent of the Militia Act of 1792 the instrumentalities of militia are tax exempt. The Court needed evidence of connection to militia because if it ruled that anything that could be used in militia was tax exempt then almost everything would be tax exempt.
10.23.2008 12:24am
Oren:


You're also aware that Miller was the highest authority on the meaning of Miller, not what not what lower courts imagined it to contain in their rush to dispose of annoying cases?

No. In the absence of SCOTUS guidance, the highest authority on the meaning of Miller were the various CAs. If they erred, they did so in thinking they were faithfully following the SCOTUS (recall that they are not at liberty to reach a conclusion at variance with their understanding of Miller). Absent SCOTUS cert to set them right, their understanding of Miller was codified into the jurisprudence even if the SCOTUS can cleverly claim never to have ruled in such a fashion (while they continue to insist that 75 years of denial of cert doesn't mean anything).

The only reason those cases were "annoying" is because they presented claims that were precluded by precedent and to which the SCOTUS was blind. Attempting to pin blame anywhere but the Court is absurd.
10.23.2008 12:30am
Jon Roland (mail) (www):
Wilkinson's reluctance to "nullify a product of the democratic process" might make sense if this were a democracy, but it is a constitutional republic. Last I checked our laws are not made by a Supreme Parliament that sits as an ongoing constitutional convention.

The Constitution does indeed speak to the question of "deferring" to the "political" branches and to the states. It implicitly rejects it. The essence of the Constitution is the presumption that officials do not have and may not exercise any power unless that power is proved -- by showing an unbroken logical chain of authority from the Constitution. Far from presuming a statute, national or state, is constitutional, it should be presumed to be unconstitutional unless or until proved otherwise.

If the courts were doing their jobs they would be striking down most legislation.
10.23.2008 12:36am
Roger Schlafly (www):
Oren, however you want to explain away those 75 years of bad decisions in the lower federal courts, the Supreme Court still did not create a novel right in Heller. It merely affirmed the gun rights that were commonly recognized throughout American history. Those gun rights are also in the plain text of the 2A. The SC is responsible for a lot of novel doctrines, but the right to own a gun is not one of them.
10.23.2008 2:18am
Tom Perkins (mail):

The Court needed evidence of connection to militia because if it ruled that anything that could be used in militia was tax exempt then almost everything would be tax exempt.


And if the power to lay excise taxes is absolute, unmodified by the amendments, then the government can prohibit the possession of anything. Since the amendments have certain meaning, then Miller's argument must have been correct--except in that against your interpretation of the consequences of his argument in protecting arms it seems likely it protects only uniquely military equipment.

Yours, TDP, ml, msl, &pfpp
10.23.2008 7:37am
JMB (mail) (www):
In a communist nation, those leaders do not have to give a damn if they are agreed with, but some people in our nation believe that our leaders do not have a right, nor even a need to know, what they themselves have agreed too.
10.23.2008 8:32am
Oren:

Oren, however you want to explain away those 75 years of bad decisions in the lower federal courts, the Supreme Court still did not create a novel right in Heller. It merely affirmed the gun rights that were commonly recognized throughout American history. Those gun rights are also in the plain text of the 2A. The SC is responsible for a lot of novel doctrines, but the right to own a gun is not one of them.

That's fine, Heller did not create a novel right but it was the first to use the judicial power to enforce that right. If I'm not mistaken, there are very few other 2A cases in which a law was struck down. So to say that from 1776 to 1930, the RKBA was "commonly recognized" is to say something other than the RKBA was "commonly used to strike down gun regulation".
10.23.2008 11:00am
interested observer:
Oren, again, you are mistaken. You just don't know much about this area of law, I'm afraid.

The first case striking down a gun law under the Second Amendment: Nunn v. State, 1 Ga. 243 (1846).

There were others. If it was rare, it was because gun regulations were practically non existent throughout most of our history, particularly at the federal level. And the Supreme Court repeatedly referred to the Second Amendment as securing an individual right, most recently before Heller in Planned Parenthood v. Casey, of all places, but starting as early as Dred Scott.

And as the Heller opinion recounts, if you bother reading it, the individual rights view of the Second Amendment prevailed throughout American legal history, including all the great 19th century treatises, starting with Tucker (1803), Rawle (1825), Story, Cooley, and was commonly accepted in the Reconstruction Era including during the debates over the 14th Amendment.

This is not something the Supreme Court just made up -- it has been the predominant view, often the only view, for centuries.
10.23.2008 11:21am
Jon Roland (mail) (www):
Tom Perkins:

... it seems likely it protects only uniquely military equipment.

Or equipment that is used with some frequency in militia, at a rate to be determined.

It is an easy problem when there is a formal organization that purchases products and services and has a tax-exempt status. Such an organization doesn't pay excise taxes on anything, even if some of the products get used recreationally by some of their members. The problem arises with militia because in militia there are no formal organizations, only ad hoc assemblies (musters) for particular threats, most of which cannot be predicted, or regular training assemblies for reasonably expectable categories of threat. Both kinds of assembly use equipment that have nonmilitia as well as militia uses. So the question remains, how do we decide whether and how much such equipment is to be treated as tax-exempt. The 1792 Militia Act provided for exemption for equipment that might usually be used for nonmilitia purposes, but which would be essential if militia ever became needed. If we were to translate this into more modern equipment, I would suggest that we revive the traditional militia system, have people regularly muster and train, and exempt those items they use during the training exercises.
10.23.2008 1:54pm
Jon Roland (mail) (www):
One more point needs to be emphasized: It is unconstitutional to criminally prosecute anyone for the possession of anything other than government-owned property without permission, and then only under state laws if committed on state territory. It is emphatically unconstitutional to try to prohibit something by putting a tax on it, refusing to accept payment of the tax, then criminally prosecute for possession of an item on which a tax has not been paid. Refusal to accept payment of a debt cancels the debt, and a tax is a debt. Moreover, there is no authority to make it a crime to possess an item on which a tax has not been paid. The item might be seized and sold to collect the tax, and any surplus from the sale paid to the delinquent, after deducting the tax and any fines imposed by the court, but it is not a necessary and proper action to carry into execution the power to tax.
10.23.2008 2:06pm
Dilan Esper (mail) (www):
There were others. If it was rare, it was because gun regulations were practically non existent throughout most of our history, particularly at the federal level.

Gun controls have certainly been widespread since at least the popularization of the Tommy Gun. And yet during that entire time, the prevailing, almost universal interpretation of the Second Amendment was that it didn't apply to them.

This is not something the Supreme Court just made up -- it has been the predominant view, often the only view, for centuries.

It isn't that the Supreme Court made it up. It's that the Supreme Court deliberately rejected an interpretation that had almost been universally accepted by the courts and which the Supreme Court itself had clearly acquiesced to.

What you guys miss is that extensive legal precedent means something. In fact, it means a lot. It's the way our legal system functions, because we can't have every court interpreting and reinterpreting the law as a matter of first principle every time a case arises.

There was clearly a considered legal judgment, which formed a consensus among the courts, that the Second Amendment did not confer an individual right. This view may have been wrong, but you can't deny that it existed. Heller overturned that consensus. Why is that so hard to admit?
10.23.2008 3:37pm
Roger Schlafly (www):
There was clearly a considered legal judgment, which formed a consensus among the courts, that the Second Amendment did not confer an individual right. ... Why is that so hard to admit?
Because it is just not true. There were about ten Supreme Court decisions that mentioned the 2A, and they all treated it as an individual right. There have also been a great many state court opinions that the RKBA is an individual right. There were a great many legal scholars who said that the RKBA was an individual right, and they have been saying it for decades if not centuries. There was not even a consensus in the lower federal courts, as Emerson said that the 2A protects an individual right.
10.23.2008 4:47pm
Dilan Esper (mail) (www):
There were about ten Supreme Court decisions that mentioned the 2A, and they all treated it as an individual right. There have also been a great many state court opinions that the RKBA is an individual right. There were a great many legal scholars who said that the RKBA was an individual right, and they have been saying it for decades if not centuries.

I am going to tell you something that shocks you, by working backwards through your points.

Before about 30 years ago or so, there wasn't, as far as I know, ONE SINGLE respected scholar supporting the individual rights view. By saying that, I am not saying that the view itself is implausible-- again, I think Heller was rightly decided. But all the scholarship that made Heller possible was either recent or was way back in Story's time or even further back. For most of the 20th Century, the Second Amendment was a dead letter in the law reviews. (I invite you to show me the work of a major law professor between, say, 1910 and 1960 espousing the individual rights view if you think this is in error.)

That's the reality. You won't see this in NRA press releases, Alan Gura's brief, or the Court's opinion in Heller. But I swear to you, it is the absolute, unvarnished truth.

Heller came out of one of the most successful projects of the good kind of historical revisionism-- where people went back and questioned long-accepted historical premises and found that they weren't as well supported as people thought.

And first a few legal scholars blazed the trail, gained more acceptance from their colleagues in academia, and eventually convinced first a few lower courts and then the Supreme Court to take a second look at this issue. (By the way, no matter how many times you cite them, STATE COURTS ARE IRRELEVANT TO THIS ISSUE BECAUSE THEY WERE INTERPRETING THEIR CONSTITUTIONS' OWN RIGHT TO KEEP AND BEAR ARMS PROVISIONS. THE ISSUE IS THE PREVAILING INTERPRETATION OF THE US CONSTITUTION.)

You need to accept that Heller was a big step, because it absolutely was. The reality is that between the 1920's and the 1990's, despite whatever dicta you want to point to in a handful of Supreme Court decisions, you had no federally enforceable individual right to keep and bear arms anywhere in this country. You could have brought your claim in any federal court and you would have lost it, and if you petitioned for cert it would have been denied.

The above statement is not only true. It is unarguable. And all you can do is change the subject to state court decisions or public opinion or assert false statements about legal scholarship that didn't actually exist.
10.23.2008 7:40pm
Michael B (mail):
There is an enormous, overarching, societal context that you're eliding, Dilan.

There were no sweeping, ideologically based initiatives thirty years ago - subtended by such attempts at ideologically based pseudo-scholarship as Bellesiles' "Arming America" - to dramatically restrict gun ownership in the manner that is now so au currant. There were tacit assumptions within the pre-68 era of American and judicial consciousness that Leftist ideologues presently simply don't give one damn thought about, in any positive sense.

I'd also like to see supportive evidence of the claim as pertains to scholarship and judicial thinking throughout America's history, not just selectively, including the period you're referring to.
10.23.2008 9:53pm
Michael B (mail):
There is additional context such as that reflected in this overview (small pdf) by a "card carrying" ACLU member, excerpt:

"I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay—The Embarrassing Second Amendment—for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU).

"... we might consider the possibility that "our" views of the Amendment, perhaps best reflected in Professor Tribe's offhand treatment of it, might themselves be equally deserving of the "tendentious" label."

And the link provided, written with genuine rather than feigned or highly selective intellectual curiosity, is a solid read.
10.23.2008 10:19pm
Tom Perkins (mail):

Before about 30 years ago or so, there wasn't, as far as I know, ONE SINGLE respected scholar supporting the individual rights view.


Which is no evidence of any contrary view's validity. Remember phlogiston?

Heller was a big step--a big step back to the view that prevailed for the first 120 years of our history, and a big step back to the only view which is rigorously in keeping with the constitution and how human nature shows armaments are best disposed.

Yours, TDP, ml, msl, &pfpp
10.24.2008 7:59am
Dilan Esper (mail) (www):
There were no sweeping, ideologically based initiatives thirty years ago - subtended by such attempts at ideologically based pseudo-scholarship as Bellesiles' "Arming America" - to dramatically restrict gun ownership in the manner that is now so au currant.

That's so not true. Go to any university library and look at the criminology sections, or look at the legislative history of any big city restrictive gun control law from the 1960's or 1970's.

I'd also like to see supportive evidence of the claim as pertains to scholarship and judicial thinking throughout America's history, not just selectively, including the period you're referring to.

You can easily get this information through google (find any of the numerous debates on Heller by legal scholars-- even the pro-gun rights legal scholars all freely admit this point). But easier still is to check the briefs in Heller-- if there was any pro-individual rights interpretation scholarship from the period I am referring to, one of the oodles of briefs in that case would have cited it.

Again, you guys DON'T KNOW THIS (probably because you don't follow disputes in academia). Instead of asking me to do your research for you, why don't you look at some law review indices in your local law library for the time period and look up the Second Amendment? It would be an enlightening experience.

As for Michael B's point, I actually agree that there was pro-gun control groupthink by academics. That's why Heller is a very useful piece of historical revisionism. But note, YOU CAN'T ON THE ONE HAND ACCUSE ACADEMICS OF GROUPTHINK WHILE ON THE OTHER HAND CONTESTING MY POINT THAT ACADEMICS, DID, IN FACT, EXTENSIVELY ENDORSE THE COLLECTIVE RIGHTS INTERPRETATION.

Which is no evidence of any contrary view's validity. Remember phlogiston?

Tom, this is anti-intellectual claptrap. It is true that academic consensus isn't PROOF of a particular position's validity, but it is totally wrong to say that when experts agree on something it isn't EVIDENCE of its validity.

In any event, I agree that Heller was a positive step, and it also seems you agree that Heller did repudiate a view that had gained some widespread acceptance.
10.24.2008 1:50pm
JMB (mail) (www):
"Before about 30 years ago or so, there wasn't, as far as I know, ONE SINGLE respected scholar supporting the individual rights view."

But was there not State Constitutions, that had still supported this view?
10.24.2008 6:18pm
Michael B (mail):
Dilan,

You don't need to yell, if that was the intention, and I wasn't asking you to do my research, I was more simply commenting that I would in fact like to see some reflection of the history of the scholarship, since the founding era and with emphasis upon the thirty or forty year span you're indicating. It was a comment, an aside, not a request that you do that research. If I would have been asking you for a link or two, I would have more directly indicated precisely that and would certainly not be asking someone on a blog for such an overarching request.

There were no sweeping, ideologically based initiatives thirty years ago - subtended by such attempts at ideologically based pseudo-scholarship as Bellesiles' "Arming America" - to dramatically restrict gun ownership in the manner that is now so au currant.
"That's so not true. Go to any university library and look at the criminology sections, or look at the legislative history of any big city restrictive gun control law from the 1960's or 1970's."


Local ordinances and the efforts in that direction are qualitatively different, to my mind by orders of magnitude, from what I was emphasizing with "sweeping, ideologically based initiatives." Purely pragmatically attunded ordinances can be forwarded and critiqued on their own local merits and demerits, but I was framing an overarching ideological context, one cast in the wake of '68, to use a simplified index.
10.24.2008 7:26pm
Oren:

There were no sweeping, ideologically based initiatives thirty years ago - subtended by such attempts at ideologically based pseudo-scholarship as Bellesiles' "Arming America" - to dramatically restrict gun ownership in the manner that is now so au currant.

That's irrelevant.

For 200 years, there were no attempts to dramatically decrease yogurt consumption. Because of this, there was no need for the SCOTUS to elucidate whether the Constitution does or does not contemplate a private right to consume yogurt.

If the court did recognize such a right, it would be novel because it is the first time the court has enforced such a right. The prevailing practice is irrelevant to the legal analysis.
10.24.2008 10:10pm
Mike Hansberry:
Is Heller like Roe?
Is Curly like Moe?
Is Soros like Joe-
the proverbial plumber?
I can't think of anything dumber !


Is dung like snow?
Is stop like go?
Is Heller like Roe-
in ways that really matter?
Judge Harvie would rather not rehash.


Is people like State?
Is love like hate?
Is keep like wait -
for 9-1-1 to save you?
Not on this side of the looking glass!
10.24.2008 11:26pm
Michael B (mail):
There were no sweeping, ideologically based initiatives thirty years ago - subtended by such attempts at ideologically based pseudo-scholarship as Bellesiles' "Arming America" - to dramatically restrict gun ownership in the manner that is now so au currant.
"That's irrelevant.

"For 200 years, there were no attempts to dramatically decrease yogurt consumption. Because of this, there was no need for the SCOTUS to elucidate whether the Constitution does or does not contemplate a private right to consume yogurt."
Not in the least. I'm not arguing against the viability of some practical legislation (invoking an entire range of issues from restrictive, concealed carry ordinances, severe limitations against fully automatic weapons and similarly against military weaponry, etc.), I'm arguing against those ideological interests who evidence virtually no regard for an individual based right, a right that is further grounded in a more viable conception of individual autonomy and freedom as such, a principle that does not even remotely inhere to your yogurt analogy. Hence, there is no Constitutional principle or amendment within the Bill of Rights itself that specifically addresses yogurt comsumption.

Now if you were to forward a more germane analogy, say one with free speech, that might prove to be more probative.
10.26.2008 7:58pm