Bench Memos

A Welcome Ally

I am on record here as being no enthusiast for the Supreme Court’s June decision in D.C. v. Heller.  I am not entirely alone among conservatives in my opinion of that ruling, it turns out.  Judge J. Harvie Wilkinson III of the Fourth Circuit (whom I criticized here on another matter a couple years ago) has written a lengthy critique of Heller for a forthcoming issue of the Virginia Law Review.  His arguments are not in every respect the ones I would make, but it’s a powerful dissent, and he pulls no punches: “Heller represents a triumph for conservative lawyers.  But it also represents a failure–the Court’s failure to adhere to a conservative judicial methodology in reaching its decision.”  There’s more: Wilkinson goes on to argue that in key respects, and to a disturbing extent, Heller resembles that worst of all modern liberal rulings, Roe v. Wade.  I would quickly add that in its effect on our political culture, and of course on life itself, Roe is incalculably worse–and Wilkinson never says otherwise.  But if you have the time for a 75-page manuscript, it’s eminently worth reading.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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