Article on Heller and a few critics

I really don't understand Posner and Wilkinson's comparison of Heller to Roe. I'm in favor of judicial restraint, however, the courts are the last line of defense when any government - local, state or federal - infringes on a Constitutional right.

In that kind of case, yes, judges SHOULD intervene.

Perhaps I'm cynical, but the way the NYT crafted this piece seems intended to give aid and comfort to those who would like to foster "civil disobedience" against Heller. After all, there's no inherent reason the anti-Second Amendment movement would be less likely to continue to resist a doctrine they can point to as allegedly having been based on "illegitimate" reasoning, than has the anti-abortion movement.

Posner and Wilkinson didn't give sufficient weight to an "enumerated" right. Oh, they recognize it when they see it, but they still think that a legislature ought to be able to ban even an enumerated Constitutional right. That's why we have a Constitution; to prevent that very thing! To paraphrase Scalia, a Consitution that can be amended by a simple majority of the legislature isn't worth the paper its printed on.

Oh, and please add an apostrophe to that last "it's".

The NYT is behind the times. AP (and the Blogsphere) had this a month ago. It's old news fit for printing on birdcage paper.

How do Posner and Wilkinson distinguish the 2nd from the 1st, 4th and all the rest? And what about the 14th, which clearly meant to make the first 10 apply to the states (Slaughter house notwithstanding)?

As for accusing Scalia, Roberts, Alito, Thomas and Kennedy of "tit for tat" revenge for Row, that's nuts and really hurts their credibility on the issue.

I am admittedly no constitutional or legal scholar. But in my view, the deficiencies in Wilkinson and Posner's views seem to center on:

1) non-differentiation between penumbral and enumerated rights

2) an ideology or bias in views of the 1st, 4th, etc. amendments and the second, which in part relates to:

3) ideological filters that are the byproduct of selective incorporation

4) And, more objectively, perhaps a dismissal of the 2A right guarantee as binding to states and municipals simply because it's not yet been selectively incorporated

Am I safe to presume that Wilkinson and Posner would not argue that the 1st, 4th, or 13th amendements, for example, do not limit state and local governments? If they do not (and surely they do not), then it is indeed difficult to grasp how they can argue that the 2nd amendment should be subject to the legislative process. Or, do they merely agree with the historical reading and find that the 2A simply does not protect an individual right?

Apologies. My last sentence immediately above should have read "Or, do they merely agree with the historical reading of the Heller dissent and find that the 2A simply does not protect an individual right?"

If anyone is curious, Posner's view is illuminated in his article "In Defense of Looseness."

http://www.tnr.com/booksarts/story.html?id=d2f38db8-3c8a-477e-bd0a-5bd56de0e7c0

My skimming of the article leads me to believe that he simply sides with the dissenting justices in Heller ... and until I know more about the man and his thinking, the logical explanation is that because of this foregone conclusion, his arguments that Scalia’s majority opinion is "illegitimate, activist, poorly reasoned and fueled by politics rather than principle" is at best ... as Gura so eloquently put it ... linguistic sophistry.

If one of the Chicago incorporation cases makes it to the 5th circuit, it will be interesting to anticipate Posner's position there.

Sheesh ... where is my brain?

Posner is a 7th circuit judge (Chicago).

Can somebody please ask Posner to articulate a coherent theory of the Second Amendment that is consistent with the power of Congress to preempt the state's ability to define militia enrollment?

Wilkinson's decision not to "rehash" the arguments over the meaning of [i]the right to keep and bear arms [/i]renders his essay a mere rant. He is unable to show that the majority agreed with his view that the competing interpretations were equally compelling, and he is unwilling to examine the evidence in order to demonstrate that the majority should have held that view. After 70 plus pages, all that is revealed is Wilkinson's obvious loathing of Roe,and his very deeply felt impression that Heller is just like Roe.

Instead of convincing his audience with sound arguments, Wilkinson “simply” pronounces that the dissent’s interpretation of the Second Amendment is as plausible as the majority's and builds an essay from there. However, the Heller majority provided many solid reasons for concluding that the meaning of [i]the right to keep and bear arms[/i] was not anything close to a toss-up between competing interpretations. So whatever judge Wilkinson might think of a hypothetical ruling, in which a majority of the court finds two equally compelling interpretations but none-the less chooses to adopt the one which merely reflects their own preferences while limiting the democratic process, he has not shown that Heller is such a case.

Judge Posner's assertion is bull crap! he is just rationalizing his opinion because the decision did not turn out the way he thought it should! The majority of the SCOTUS ruled based on the historical context of the 2A, as they should, and not on some sense of rewriting the constitution on-the-fly for the purpose of social engineering based on a judge's idiologically based idea of what a civilized society is!

a first amendment aside --- although computer-rendered kiddie porn may be permissible, it appears that hand-drawn cartoonish kiddie porn may not be.

http://manga.about.com/b/2008/10/13/cbldf-defends-iowa-collector-in-manga-obscenity-case.htm

and real-world, photographic kiddie porn seems still illegal even if it was the kid herself who took the photos and handed them out:

http://www.digitaljournal.com/article/261082

IMHO, this is evidence that even after all these years, we're still hashing out just what the first amendment means and where its limits are drawn. personally, i'd love it if Heller would start a similar debate about the limits of the second. it'd be neverending, of course, and the outcome would be forever swinging back and forth across a midpoint it never settled at, but such is life in a democracy. far better to have the debate vigorously swinging than silenced and static!

Both judges suffer from "gun hate derangement" syndrome. Just like the Judges who wrote the opinions in Cases and Tot back in the 1940's.

Judges frequently see cases of lives taken with guns. But they rarely see cases of lives saved by guns. Such cases usually don't make it to court. The situation is similar for journalists and even the general public, hence the widespread "gun hate derangement" syndrome.