January 2, 2009

"Judge Wilkinson compares District of Columbia v. Heller to Roe v. Wade in four respects..."

"...'an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of principles of federalism.'"

Sounds apt.

27 comments:

Cabbage said...

Sounds apt.

Minus the part about textualism.

Bender said...

So, then, we can expect all those anti-gun-rights folks to suddenly reject Roe and demand that it be overturned?

sean said...

So, we can expect the AALS and the ABA to pass resolutions supporting Heller?

Ann Althouse said...

"Minus the part about textualism."

I've read the case and taught a class in it, and I say that is also apt.

Simon said...

Old news. Wilkinson and Posner could save themselves a lot of words by cutting to the chase: "I reject your reality and substitute my own." And I don't see how one can charge that Heller rejects textualism when the greater part of its bulk is devoted to a detailed and convincing textual exegesis.

Chris said...

I can't overcome my materialism well enough to understand what the problem is. No judiciary unwilling to abandon 3 out of the 4 "respects" would last for long. As for not respecting legislative judgements, isn't that a very old and very American idea?

Eli Blake said...

Actually, the Supreme Court was right both times.

What it means is that when your teenage daughter gets knocked up, she can get an abortion AND you can go shoot the S.O.B.!!

Revenant said...

The notion that Heller "rejected the principles of federalism" is moronic; the District of Columbia is directly ruled by the federal government. Federalism doesn't enter into it.

The notion that it rejects textualism is Orwellian, since Heller rejects decades of precedent in favor of what the text of the Constitution actually says.

Cabbage said...

I've read the case and taught a class in it, and I say that is also apt.

I respectfully disagree Professor. As Simon indicated, most of the opinion focused on the text. Certainly you are free to find Stevens' interpretation of the text more persuasive than Nino's, but its *about* the text. If the decision had really ignored textualism like Roe, then the whole thing probably would have boiled down to a rant about DC as a Failed-State.

Of course,you and Judge Wilkinson might understand "Textualism" differently than I do. I'm assuming he (and you) mean, "Ok, the text says 'X'. 'X' as applied to our facts means 'Z' b/c of (1) & (2). The dissent is wrong to say that 'X' means 'Y' b/c of (i) & (ii)." If there is an academic definition I am unaware of, please let me know.

/no snark
//read it too
///definitely think Scalia got the Originalism of the whole thing correct -- See generally Volokh
////Chicago Gun Laws = Casey

Host with the Most said...

Rev - thank you for that.

Simon - you also!

mtrobertsattorney said...

On the textualism issue I have to give the nod to J. Scalia.

The District's interpretation of the 2nd Amendment collapsed into silliness. The direct implication that followed from their position was that the Amendment created a constitutional right for a soldier in the National Guard to "keep and bear" a weapon. The drafters were apparently afraid that an enemy engaged in a fire fight with the National Guard might run into federal court and challenge the right of their National Guard adversaries to carry arms.

Bill Kilgore said...

Due respect to the host, but that fourth point is absurd on its face, as Revenant makes clear.

Look, we understand that Con law has essentially become a system wherein a particular faction pretends that their policy preferences are constitutionally mandated. However, if you find yourself on the left of the isle and you want anyone to take the "reasoning" of Roe, Casey, Hill, Lawrence and the rest seriously- quit whining when the Court is forced to acknowledge the existence of the second amendment.

It might also help to run the "principles" that inform those cases I mentioned through your Heller analysis- but being that it's the holidays, I don't want to seem pushy.

Granted, the "right to be left alone" (Hill) and the right to be free from "intrusions into the personal and private life of the individual" (Lawrence) probably don't protect a 60 year-old man who is compelled by the state to carry gun at work when he asks the state if he can possess a useful firearm in his home. Nah- after all, that evil doer might try to protect his life and liberty (or their penumbras) with that item- no way the Constitution would stand for that.

blake said...

...the right of the people to keep and bear Arms, shall not be infringed.

If it were truly textual, wouldn't they have pretty much struck down all gun-laws?

Or is there a different text involved?

Mortimer Brezny said...

Wilkinson and Posner aren't originalists or textualists. They are right-wing pragmatists. Heller only looks like Roe if you think everything should be decided by legislatures. If Wilkinson's argument is sound, then Brown v. Board of Education was incorrectly decided.

HelenParr said...

Eli Blake: LOL!

sean said...

I'm with Cabbage. I've read both Heller and Roe (though I haven't taught any courses, not being a law professor), and I don't follow the criticism of Heller as lacking a commitment of textualism. (As opposed to Roe, which discurses for a paragraph or two to note that the Court isn't quite sure, and doesn't much care, which actual provision of the Constitution it is applying).

Perhaps Prof. Althouse can clarify why she sees Heller and Roe as equivalent in this regard.

Pastafarian said...

Professor -- I'm with Sean. I know that you don't usually provide such clarifications, but I'd also like to know how this decision reflected "an absence of a commitment to textualism".

Or if any of the many very legally astute commenters would like to take her position and explain/defend it, that would work, too. Maybe someone here took her course.

Unless Blake is on to something, and the primary objection is the fact that the decision didn't go far enough, I don't see any way to argue that this decision rejects textualism.

Roadkill said...

I share the in the consternation of many commenters here regarding how the Heller opinion reflects a lack of commitment to textualism.

The opinion seems extremely focused on the text of the second amendment, from its prefatory clause to its operative clause to the relationship between the clauses. Legislative intent and contemporaneous opinion/law are also cited.

Perhaps some blogger who is a law professor and sometimes blogs about the law could enlighten her readers as to how the Heller opinion could have shown more of a commitment to textualism, or, in the alternative, how the Roe opinion shows no less commitment to textualism than does Heller.

Ann Althouse said...

The textual analysis is long, but that doesn't mean it's coherent. It's a big demonstration of look I'm doing textualism but that doesn't mean it's done well. I read the case very carefully in order to teach it, and I was not at all hostile to the result in the case. I wanted to be able to explain the textual argument, and I found it incoherent.

It would take some space to explain why, and I may be able to do that later, but understand my point for now: quantity is not quality.

Simon said...

Ann Althouse said...
"understand my point for now: quantity is not quality."

And Roe has neither, so why does the comparison hold up? One can be committed to something yet make a hash of it. It doesn't do enough for comparative purposes to say that the textualism in Heller isn't good textualism (if another post is in the works on that, let's leave that for another day).

The very fact that one can debate whether Heller's textual analysis works vel non distinguishes it from Roe, which has no commitment to textualism whatsoever. Heller's engagement with the Constitution's text may be good, bad, or indifferent, but Roe's engagement with the Constitution's text -- "The Constitution does not explicitly mention any right of privacy ... [but] the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. ... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" -- isn't bad textualism, it's non-textualism.

Bart DePalma said...
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Bart DePalma said...

Ann Althouse said...

I was not at all hostile to the result in the case. I wanted to be able to explain the textual argument, and I found it incoherent.

It would take some space to explain why, and I may be able to do that later...


I would enjoy reading that explanation. The Scalia opinion appeared to be largely boiler plate individual right text theory.

Bart DePalma said...
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Bart DePalma said...

Cabbage said...

Sounds apt.

Minus the part about textualism.


And minus the part about federalism.

DC is not a state. The 14th Amendment incorporation round is next.

Judge Wilkinson's complaint really boils down to the fact that Heller reversed 70 years of really bad precedent. In this, I do not see the comparison to Roe.

Simon said...

Bart DePalma said...
"And minus the part about federalism. DC is not a state. The 14th Amendment incorporation round is next."

Even if and when the court incorporates Heller, that won't be bad federalism. To suggest that incorporating the second amendment is bad federalism is to violate a passage Althouse knows well, Justice Black's opinion in Younger: our federalism, Black noted, is not a synonym for so-called "states' rights." It may limit states' rights to incorporate the second amendment, but our federalism recognizes, as Black said, that some things are national and some things are local. Federalism does not deny the existence of federal rights.

"Judge Wilkinson's complaint really boils down to the fact that Heller reversed 70 years of really bad precedent."

Even that overstates it: it overturned a 70 year old presumption about what one case held. This isn't like Erie RR, where the decision threw out a decades-old mistake and in doing so overturned innumerable cases; the court not only didn't overrule Miller, there weren't oodles, dozens or even tens of cases in the courts below that were overturned as a result.

Kirk Parker said...

"...there weren't oodles, dozens or even tens of cases in the courts below that were overturned as a result."


Alas.

(Not that Heller wasn't the most we could have hoped for at the current time...)

Bart DePalma said...

Simon:

I agree with your narrower definition of federalism. However, Wilkinson is referring to a broader political talking point that covers any abbreviation of state power, legitimate or otherwise.