Academic

Is District of Columbia v. Heller like Roe v. Wade?

By Ann Bartow

Two federal judges apparently think so. From the NYT:

Two prominent federal appeals court judges say that Justice Antonin Scalia?s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

?The Roe and Heller courts are guilty of the same sins,? one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.

Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller?s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions ?was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.? …

Read the rest here.

–Ann Bartow

Full post as published by Feminist Law Professors on October 21, 2008 (boomark / email).