Bench Memos

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Reply to Ed


I agree with Ed when he says below that Judge Wilkinson does not appear to have done a “rigorous review” of the competing historical accounts of the Second Amendment offered by Justices Scalia and Stevens in the Heller case.  Should he have?  Perhaps, but I’m not so sure.  Here is how he puts his position after his first brief recapitulation of the opinions’ historical claims:

When a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes. For a court that decides to strike down legislation based on an interpretation of the Constitution that is only plausible and not incontrovertible will appear to the public to be exercising discretion.

There is a great deal of merit to this view.  If, as Ed says, Scalia and the others in the majority “concluded that the Second Amendment clearly required the result they reached” (my emphasis), Judge Wilkinson’s argument is something like saying, “You have not offered, even to relatively well-versed readers of both your opinion and Stevens’s, any compelling reason for agreeing with you about that.”  In short, it is Wilkinson’s view that Stevens does not have to be dead right for his view to prevail–but Scalia does have to be right, overwhelmingly so, and he is far from nailing that objective.  Couple that with the high probability that Heller will mean years to come of very intricate and discretionary government by judiciary on questions of gun control, and I find it difficult to disagree with Wilkinson.  Could his argument be even stronger if he met Ed’s demand?  Yes, it could.  But it’s pretty powerful as is.



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