Ruling has same flaws as Roe v. Wade

Of conservatives' few victories this year, the most cherished came when the Supreme Court, in District of Columbia v. Heller, held that the Second Amendment protects an individual right to bear arms. Now, however, a distinguished conservative jurist argues the ruling was mistaken and had the flaws of Roe v. Wade, the 1973 abortion ruling that conservatives execrate as judicial overreaching. Both rulings, says J. Harvie Wilkinson, recognized a judicially enforceable right grounded in "an ambiguous constitutional text."

Writing for the Virginia Law Review, Judge Wilkinson of the 4th U.S. Circuit Court of Appeals says Heller, like Roe, was disrespectful of legislative judgments, has hurled courts into a political thicket of fine-tuning policy in interminable litigation, and traduced federalism. Heller exposed "originalism" - the doctrine that the Constitution means what those who wrote its words meant by them - as no barrier to "judicial subjectivity."

Until June, the question was: Is the right guaranteed to individuals and unconnected with military service, or only to states as they exercise their right to maintain militias? The court held, 5-4, for the former view.

In Roe, the court said the 14th Amendment guarantee of "due process" implies a right of privacy. Since 1973, the court has been entangled in the legislative function of adumbrating an abortion code, trying to tickle answers for policy questions from the Constitution.

Conservatives are correct: The court, having asserted a right on which the Constitution is silent, has been writing rules. But now, Wilkinson says, conservatives are delighted that Heller put the court on a similar path.

In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated that there are historically grounded "originalist" arguments for opposite understandings of what the Framers intended.

Judicial conservatism requires judges to justify decisions with reference to several restraining principles, including deference to the democratic branches of government, and to states' responsibilities under federalism. But, Wilkinson writes, Heller proves that when the only principle is originalism, and when conscientious people come to different conclusions about the Framers' intentions, originalist judges must resolve the conflict by voting their policy preferences.

In controversies about the constitutionality of legislation, a Supreme Court tie between arguments should, Wilkinson says, tilt judicial judgment to the legislature.

When rights are unambiguously enumerated, courts should protect them vigorously. But Wilkinson says that when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments - particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.

Roe and Heller, says Wilkinson, diminish liberty by "handing our democratic destiny to the courts." Many libertarian conservatives disagree, arguing the protection of individual liberty requires robust judicial circumscription of democracy.

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

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