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Con law scholars on Heller
William van Alstyne, of William and Mary:
“This case is to the Second Amendment what Roe vs. Wade was to abortion,” he said. “That one didn’t settle all the questions, and some people still don’t like it, but it was a watershed, like this one.”
Van Alstyne said the ruling’s “heat and volume” give the opinion added weight – 150 pages of research and dissections of the amendment’s 27 words, broken down phrase by phrase. The justices explored historical context and took into account how Americans spoke and wrote two centuries ago, when the amendment was ratified.
“Some people might try to dismiss it by saying it doesn’t amount to much, but that’s just wrong. This is serious business – a meaningful opinion that will stand for the indefinite future.”
Glenn Harlan Reynolds Instapundit, U of Tenn.:
"But winning in the Supreme Court is just the beginning of the story. Even the biggest civil-rights victories have taken years to percolate through the lower courts, often in the face of foot-dragging or outright resistance from lower-court judges, states and municipalities.
Brown v. Board of Education declared racial segregation unconstitutional in 1954, but it took a decade or more of slogging to make its promise bear fruit - and even then Congress had to give things a boost by passing the 1964 and 1965 Civil Rights Acts.
By contrast, in the 1990s the Supreme Court decided a series of cases narrowing Congress' powers to regulate all sorts of things under the rubric of "interstate commerce." But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.
Without that pressure, the lower courts were free to ignore the Supreme Court's efforts to cut back on federal meddling - and that's what they did, to the point that some called it a "constitutional revolution where no one showed up."
If the Supreme Court's Heller decision is not to meet the same fate, Second Amendment enthusiasts will have to start bringing, and carefully litigating, follow-up cases so as to ensure that Second Amendment rights don't wind up championed mostly by "ugly" defendants such as drug dealers facing firearms charges.
Is the gun-rights movement mature enough to follow through on this week's victory? We'll find out."
But UCal Dean Ed Chemerinki is not so happy:
"What then explains the court's decision to strike down the D.C. law? Conservative political ideology. The majority followed prevailing conservative political philosophy and found that the 2nd Amendment bestows on individuals a right to have guns.
This should not be surprising. The conservative justices regularly jettison judicial restraint when it is at odds with conservative politics. They've done the same thing in cases involving affirmative action and desegregation programs.
The irony is that the same conservative justices who were so eager Thursday to find an individual liberty under the 2nd Amendment are loath to do so when a right of a criminal defendant is at stake or when it is a matter of enforcing the religion clauses of the 1st Amendment. Thursday's decision is a powerful reminder that the conservative justices are activists when it serves their political agenda."
Hat tip to Dan Gifford...
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If the majority of five 'reversed' their votes, why wasn't it 9-0? Because the minority of four reversed their votes also.
The same thing happened in Gore v. Florida (2000). One of the votes ended up 5-4 and the losers accused the majority of 'changing' their positions, blithely ignoring that their minority had reversed themselves as well.
Chemerinsky is biased, he is not impartial, his judgment fulfills his opinions.
So, what's the average number of pages for a Supreme Court decision anyway?
"Better put some ice on that, Ed." And Reynolds is absolutely correct. We need a full court press on this - right now. If it takes a picture of Arnold Schwarzenegger standing at the gun store door, surrounded by Federal troops, then so be it. Incorporation next. Go Gura, go Levy!
Oh, people will be taking up this cause, you can be sure. The reason that nobody took up the Commerce Clause litigation challenge is that neither side of the rhetorical war really believes in a limited view of congressional power. What they disagree on is who the Congress should stay busy screwing.
>>The majority followed prevailing conservative political philosophy and found that the 2nd Amendment bestows on individuals a right to have guns.
It truly annoys me when the champions of the left assert that a ruling like this is political ideologically motivated judicial activism.
They *invented* the collective theory as a means of evading the plain meaning of the text.
They were the *only* ones pushing said theory.
Everyone else in the world was perfectly OK accepting the plain meaning of those 27 words from the very beginning of the Republic, except for them.
Oh, yes, there was ideological activism in play, but thankfully, it lost big.
Well Max, being an MBA, I always follow the money. Who makes money on pro-2nd Amendment litigation?
Chemerinski is probably not as unhappy as he is patently wrong ...
For he wrote:
The majority followed prevailing conservative political philosophy and found that the 2nd Amendment bestows on individuals a right to have guns.
As we all know, the 2A doesn't bestow a damned thing. It is a prohibition on government (and the "majority") and nothing more (or less).
The best thing I have read about Chemerinsky's response to Heller (from Patterico):
Chemerinsky v. Chemerinsky
I think its Erwin Chemerinksy, not "Ed." He regularly appears on the Hugh Hewitt radio show with John Eastman, Chemerinski always sounds like a non-sensical quack commenting on Constitutional questions alongside the brilliant Eastman. I had Chemerinski as the Con Law lecturer on the Bar review. He told a lot of weird jokes that no one laughed at. His lectures were boring and slanted to the left.
His appointment as Dean of UC Irvine Law School was temporarily put on hold when they found out how left wing he is. He is the quintessential expositor of the "living constitutional" who declares undying support for a fundamental right never mentioned in the Constitution but wishes to ignore another one that is expressly stated. I think he would say in public that the Constitution should mean only what Justices Ginsburg, Breyer, Souter and Stevens say it means.
To say the things he has said about Heller in the face of the scholarship on the second amendment that has occurred over the last 25 years, and the encyclopedic nature of Scalia's opinion shows just how much Chemerinski favors the rule of liberals over the rule of law. He's a disgrace.
Well, Mr. Chemerinski condemns his opinions with the stink of bias right at the beginning - didn't even the dissenting justices recognize 'Individual Right"?
Never mind the tortured logic and faulty legal research they used to back up their preference for making that right irrelevant through pernicious regulation, even those saintly "liberal" justices didn't dare deny that the 2nd Amendment is Individual, not collective.