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Bench Memos

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Re: Let the Flak Begin

As I’ve previously made clear, I think that Judge Wilkinson’s comparison of Heller and Roe was recklessly irresponsible (and far from the “trenchant analysis” that Gregory J. Sullivan labels it in his essay).  I’ll again call attention to the extended withering critique of Wilkinson’s argument that legal scholars Nelson Lund and David B. Kopel offer in “Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III.”  I particularly like this passage from Lund and Kopel:

Suppose that the Bill of Rights included a provision stating: “A well regulated medical system that protects women from premature death being necessary in a civilized nation, the right to abortion shall not be infringed.” Then suppose that in the late twentieth century the Supreme Court concluded that medical advances had almost eliminated the dangers of death during pregnancy and labor. Suppose further that three-quarters of the American population believed that the Abortion Clause guaranteed a broad right to abortion, and that evidence of the original public meaning of that clause overwhelmingly showed that it was understood when adopted as protecting a woman’s personal right to choose abortion over giving birth. Suppose that no jurisdiction had banned abortion until long after the Bill of Rights was adopted, and that even today only two cities and a few suburbs did so. Finally, assume that the Supreme Court had recently invalidated a complete ban on abortion in Washington, D.C., holding that the constitutional right does not disappear when the government decides that women are better off without it.

If all this were true, then we would have a close parallel between the right to arms and the right to abortion.

Tags: Whelan

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