Antonin Scalia

Conservatives Against Heller


New York Times Supreme Court correspondent Adam Liptak has an article describing the recent grumblings by conservative federal appeals court judges Harvie Wilkinson III and Richard Posner about the Court's gun rights decision in D.C. v. Heller. As Liptak notes, both Wilkinson and Posner have accused Justice Antonin Scalia of resorting to the same illegitimate judicial methods in his Heller opinion that he typically castigates the Court's liberals for using.

In my article on the subject last month, I argued that Wilkinson does have a point, though it's not one that undermines the outcome in Heller. As Wilkinson correctly notes, Scalia typically argues that judges ought to defer to the will of legislative majorities. There's also the point, made by Scalia and other proponents of judicial restraint, that the courts should avoid the "political thicket" whenever possible. So why not let D.C. voters and local officials settle their own gun control debate? The answer, of course, is that the courts should strike down unconstitutional laws regardless of whether they're popular with a majority of people. But that's not judicial restraint, which is what Wilkinson—who's nobody's idea of a liberal judicial activist—points out.