Defining amendments
By George F. Will
The Washington Post
Friday, November 28, 2008 10:40 AM PST
Of conservatives’ few victories this year, the most cherished came when the Supreme Court, in District of Columbia v. Heller, held for the first time the Second Amendment protects an individual right to bear arms. Now, however, a distinguished conservative jurist argues the court’s ruling was mistaken and had the principal flaws of Roe v. Wade, the 1973 abortion ruling that conservatives execrate as judicial overreaching. Both rulings, says J. Harvie Wilkinson, suddenly recognized a judicially enforceable right grounded in “an ambiguous constitutional text.”
Writing for the Virginia Law Review, Judge Wilkinson of the U.S. Court of Appeals for the 4th Circuit 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. Furthermore, Heller exposed “originalism” — the doctrine the Constitution’s text means precisely what those who wrote its words meant by them — as no barrier to “judicial subjectivity.” The Second Amendment says: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Until June, the question was: Is the right guaranteed to individuals and unconnected with military service, or guaranteed 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 general right of privacy, within which lurks a hitherto unnoticed abortion right that, although it is “fundamental,” the Framers never mentioned.
Conservatives are correct: The court, having asserted a right on which the Constitution is silent, has been writing rules that are detailed, debatable, inescapably arbitrary and irreducibly political.
In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated there are powerful, detailed, historically grounded “originalist” arguments for opposite understandings of what the Framers intended with that right to “keep and bear arms.”
Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right.
Judicial conservatism requires judges to justify their 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 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.
When rights are unambiguously enumerated, courts should protect them vigorously. But Wilkinson says 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.
— © The Washington Post Co.
