Federal Judiciary

Academic Roundup

By Akin Gump Supreme Court Practice Group

For those that haven’t already read or heard about it, Fourth Circuit Judge J. Harvie Wilkinson has written an essay forthcoming in the Virginia Law Review entitled “Of Guns, Abortion, and the Unraveling of the Rule of Law,” see here.  In the piece, Judge Wilkinson compares District of Columbia v. Heller to Roe v. Wade in four respects: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of principles of federalism.”  Like Roe, Wilkinson asserts that Heller represents “an act of judicial aggrandizement” that takes power from the political branches of government and gives it to the judicial branch.  There has already been some academic commentary about Judge Wilkinson’s essay on various blogs, see here, here, and here.

In response to Judge Wilkinson’s essay, Nelson Lund and David Kopel have posted “Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III” on SSRN, see here.  Similar to the Wilkinson piece, the Lund and Kopel piece has been heavily downloaded.  In a strongly-worded critique of Judge Wilkinson, the authors argue that, unlike the right to abortion recognized in Roe, “the right of the people to keep and bear arms is in the Constitution” and thus the analogy between Roe and Heller is inapt.  In particular, the authors challenge Judge Wilkinson’s contention that Justices Scalia and Stevens essentially argued to a draw in their respective Heller opinions.  For those interested in Heller, I would suggest reading both articles.

Full post as published by SCOTUSBLOG on January 02, 2009 (boomark / email).