Bench Memos

Re: A Welcome Ally

On an admittedly quick skim, I am far less impressed than Matt is by Judge Wilkinson’s commentary on District of Columbia v. Heller.  Let me briefly outline why:

1.  In the most important part of his essay (pages 13-24), Judge Wilkinson does little more than summarize the competing positions taken in Justice Scalia’s majority opinion and Justice Stevens’s dissent.  He doesn’t do the hard work of sorting through whether one side has it right.  When Wilkinson says, “For every persuasive thrust by one side, the other has an equally convincing parry,” he gives no sign that he has done more than a superficial read of the opinion.  The relevant question isn’t whether the positions taken by Scalia and Stevens are both facially plausible; it’s whether a rigorous review of the contested materials—a review Wilkinson hasn’t undertaken—would lead to the conclusion that Scalia is right.

2.  I agree with Wilkinson that judicial restraint should supplement original-meaning jurisprudence—that deference to the democratic processes is called for when a democratic enactment does not clearly violate a constitutional provision.  But so does Scalia.  It’s clear from Scalia’s majority opinion that Scalia (and the justices who joined the opinion) concluded that the Second Amendment clearly required the result they reached.  Wilkinson could argue that they’re wrong (though, again, doing so would require a more rigorous analysis than he has offered).  If they are wrong, then they’ve misapplied the principle that Wilkinson embraces.  But they haven’t rejected it.

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