Defending Heller from "Faux Conservatism"


Of the many critiques that followed the Supreme Court's landmark gun rights decision in District of Columbia v. Heller, perhaps the most interesting came from conservative federal Judge J. Harvie Wilkinson III. In a Virginia Law Review article entitled "Of Guns, Abortions, and the Unraveling Rule of Law," Wilkinson denounced Justice Antonin Scalia's majority opinion for engaging in judicial activism and compared the reasoning in Heller to that in the abortion rights case Roe v. Wade (not exactly a compliment from one conservative judge to another).

Now George Mason Univesity's Nelson Lund and the Independence Institute's David Kopel have written what looks to be a decisive critique of Wilkinson's article, which they recently made available via the Social Science Research Network. Here's part of their abstract, which doesn't exactly pull any punches:

Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

Part II shows that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness.

Read the whole thing here. I wrote about Heller, Judge Wilkinson, and the failures of conservative judicial restraint here.

NEXT: In the Service of the State

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  1. Damn PDFs I hate those things

  2. “The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not”


    One would think a conservative federal judge would be able to see a distinction between something specifically ennumerated in the text of the Constitution and something that isn’t.


  4. Wilkinson is a Bushevik who believes in an evolving Constitution – a Constitution under which the President can imprison American citizens at will based on claims of terrorism.

    In case anyone hasn’t seen his true colors before, now Wilkinson makes clear that he cares no more about the rights of the unborn, and the right to bear arms, than he does about the separation of powers and the protection of citizens against arbitrary imprisonment.

  5. When is the NRA going to use this shiny new toy to give me my gun back in NJ!?

  6. Can we please, please drop “restraint” and “activism”. Judges should overturn unconstitutional laws, and not overturn constitutional ones. They should do both of these things regardless of their personal feelings on the issue. Period.

  7. Robbie, the problem is when a law (or the lack of govt action) falls into a constitutional gray area. Should a judge lean towards not acting in such a scenario, or should he lean towards action?

  8. Tulpa,

    What constitutional gray area are you referring to?

  9. I would say that judicial activism means rewriting the law instead of properly interpreting it. A judge can’t wriggle out of an accusation of activism by saying, “I’m just approving of something the legislature (or Congress, or the President) did.” If what the other branch of government does something unconstitutional, the courts aren’t supposed to approve. If all the other branches of government jumped off a cliff, would Wilkinson do it, too? Would he defend his jump as the “restrained” and “conservative” course to take?

  10. wayne,

    One example is extending the warrant requirements of the 4th amendment to cover wiretapping. The text mentions that “persons and their effects” are protected from unreasonable search and seizure. It’s not exactly obvious how telephone conversations fall into this category while face-to-face conversations, for instance, don’t.

  11. For example, if an undercover cop sees two people talking on a street corner, (s)he can walk near them and eavesdrop without a warrant or probable cause — but this is not the case for phone conversations.

  12. Anyone can walk near and eavesdrop on the street.

  13. Here is a relevant ‘Grey Area” for discussion. Full auto weapons used to be perfectly legal in America without restriction. In fact when it was decided to clamp down on them it was considered impossible to do by banning, due to the 2nd. So they decided to use punitive taxation and registration for tax purposes. Yet the clear presumption of the 2nd is that it protects weapons appropriate to the Militia. Likewise cannons were owned without regulation immediately after the revolution. The modern equivalent would be??.?
    Now from a public opinion aspect neither idea is going to fly today and pushing for it would likely not be a good idea. And most would agree that there is SOME point at which common citizens aught not have easy access to certain things. (Nukes, bio-chem weapons, anti-matter) But from a CONSTITUTIONAL position, how do we define that boundary, without giving the store away by agreeing to the ‘what popular opinion approves’ position.

  14. I want my F-15…

  15. Some have used the ‘readily carried and used by an individual’ argument, but that would allow RPGs and the bio weapon tucked in a shirt pocket. However much I might like to play with an RPG, that is going to give Mrs. Grundy fits. We barely got a 5-4 decision as is. I would suggest that a more practical definition is ‘Those weapons designed for use by one individual against another individual. But–that’s not in the text. Perhaps its in an emanation of a penumbra ?

  16. Against an individual soldier or civilian that is

  17. The ridiculous analogies that many like to use(citizens owning nuclear weapons, for example)show that they cannot use common sense, and are using an emotional appeal. There are two types of weapons: Arms and armaments. Arms consist of rifles, shotguns, handguns, and yes, many automatic weapons. (Oh, the horror of it all) Armaments are what the military has. Unlike what many want us to believe, you cannot go down to your local store and buy mortar, artillery and bazooka rounds. Nor can you buy bombs, rockets and missiles. Armaments take a very specialized supply system, while arms do not.
    As far as this judges opinion, he is entitled to it, but it has nothing to do with reality. He has either not read the majority decision in DC vs. Heller, or he simply does not want to agree with it. There is plenty of historical data to support the majority opinion, and none to support the dissenting opinions. To find out what the Founding Fathers meant(and thought) of guns and The Second Amendment, go to

  18. Excellent link—thank you. !
    The “very specialized supply system, while arms do not” is a great way to answer the red herring of individuals having nukes. My answer is, nuclear material can only be produced by governments, therefore it is their right to NOT distribute it to individuals. Just as the local gun shop can decide not to sell to someone who looks suspicious.
    However that is not true of all mass weapons. Obviously home made explosives can be readily produced, and for those of us working in the biological fields, disease organisms are readily available.

  19. Or perhaps the best example of selective supply is the way My Randy Barrett refuses to sell his 50 cal rifles to Law Enforcement Agencies in California–on the grounds that they are criminals for violating the 2nd Amendment and he does not do business with criminals. May God Bless him.

  20. I do not own Mr Barrett–typo

  21. The title of this article says it all: “Faux” conservatism is just that, and for anybody to claim this guy is a true conservative is just plain garbage. My guess is that he and California Governor Arnold Schwarzenegger (a faux conservative if ever there was one) are “homeys” from the same “hood.”

  22. We deal with the nuclear arms question by taking the right to bear arms seriously, as we do other constitutional rights. i.e. any infringement is suspect and the burden of proof falls on the regulator to show why restriction is needed and for the courts to weigh individual freedom against the real or alleged interest of the many. If we started from a position of respect for the right to bear arms, it should not be that difficult to determine when regulations are frivolous (no rifles with bayonet lugs?) and when rights are ridiculous (when are you going to need that nuclear or biologic weapon?)

  23. Agreed, We should never allow the “why do you need” ploy. Anytime we accept that question we have lost the point.

  24. New acronym: CINO – Conservative In Name Only. Someone needs to find out if Wilkinson has been drinking the Brady KoolAid.

  25. Israeli citizens with full and semi autos are not hard to find. Over there street thugs are.

  26. Better to have them and not need them than the other way around.

    Obama’s appointments strongly suggest that the time to acquire is NOW and so is the time to join the NRA, SAF, JPFO, and local gun clubs.

  27. I haven’t seen a reply to domoarrigato’s question,
    “When is the NRA going to use this shiny new toy to give me my gun back in NJ!?”

    So here goes: Get up and do it yourself, big boy!
    The NRA and Mr. Heller have given you the tools; whether or not you use them is entirely up to you.

  28. Join the NRA and fight the battle!Call 1-877-NRA-2000.

  29. Instead of allowing the “why do you need’ ploy, take the offensive–as illustrated–

    by Barrett Tillman
    “Tell me why you think a woman should ‘lie back and enjoy being raped’ instead of having the means to defend herself.”

    “Tell me why African-Americans should submit to being lynched instead of fighting back.”

    “Tell me why homophobes should be free to beat up homosexuals without the risk of being shot.”

    “Watch Schindler’s List and tell me again why only the police and military should have guns.”

    “Tell me why I shouldn’t have the best means of defending myself”

    “Tell me why a woman’s right to choose should not include weapon, mag size and ammunition.”

    “Tell me why I shouldn’t be able to defend my life or my freedom.”

    “More than that, tell me why you should not have that right!”

    Barrett Tillman

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