Defending Heller from "Faux Conservatism"

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Defending Heller from "Faux Conservatism"
Damon W. Root | December 10, 2008, 3:15pm

Of the many critiques that followed the Supreme Court's landmark gun rights decision in District of Columbia v. Heller, perhaps the most interesting came from conservative federal Judge J. Harvey Wilkinson III. In a Virginia Law Review article entitled "Of Guns, Abortions, and the Unraveling Rule of Law," Wilkinson denounced Justice Antonin Scalia's majority opinion for engaging in judicial activism and compared the reasoning in Heller to that in the abortion rights case Roe v. Wade (not exactly a compliment from one conservative judge to another).

Now George Mason Univesity's Nelson Lund and the Independence Institute's David Kopel have written what looks to be a decisive critique of Wilkinson's article, which they recently made available via the Social Science Research Network. Here's part of their abstract, which doesn't exactly pull any punches:

• Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

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