Of Guns, Abortions, and the Unraveling Rule of Law

71 Pages Posted: 11 Sep 2008 Last revised: 2 May 2009

J. Harvie Wilkinson III

United States Court of Appeals for the Fourth Circuit

Abstract

Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation's history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms.

I am unable to join in the jubilation. 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. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.

In this Essay, I compare Heller to another Supreme Court opinion, Roe v. Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked by conservatives, while many of those same critics are roundly praising Heller. And yet the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.

Keywords: Roe, Heller, Guns, Abortion, Federalism, Separation of Powers, Constitutional Interpretation, Deference, Restraint

Suggested Citation

Wilkinson, J. Harvie, Of Guns, Abortions, and the Unraveling Rule of Law. Virginia Law Review, Vol. 95, No. 2, p. 253, 2009. Available at SSRN: https://ssrn.com/abstract=1265118

J. Harvie Wilkinson III (Contact Author)

United States Court of Appeals for the Fourth Circuit ( email )

255 W. Main Street, Suite 230
Charlottesville, VA 22902
United States

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