Bench Memos

Let the Flak Begin

Even if Heller was wrongly decided, the analogy to Roe that Sullivan borrows from Judge Wilkinson seems highly inappropriate. Heller did not announce a right as unlimited as the abortion right of Roe. It did not sweep away the laws of all fifty states. It was plausibly grounded in the constitutional text.

Sullivan suggests that Heller violated originalism, but most of his arguments against it–whether or not valid–are not originalist. Originalism by itself cannot tell a judge how to rule when “the historical record does not unambiguously point to one conclusion.” Supplementing originalism with a principle of restraint in hard cases might do so, but accusing someone of wrongly violating that principle is not the same thing as accusing them of betraying originalism. The closest Sullivan comes to making an originalist argument against Heller (as opposed to the incorporation of its principle) is his reference to Wilkinson’s claim that the decision was insufficiently committed to textualism. Not having read Wilkinson, I can’t say how well the judge supports that claim. But by omitting any argument for the claim Sullivan has rendered his own argument unpersuasive.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.