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. Yet as Wilkinson saw it, Heller opened the door to decades of future litigation, disregarded clear legislative preferences, and aggrandized the judiciary at the expense of the other branches and the people—"the same sins," he said, that characterized Roe.
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.