I must respectfully disagree with the Honorable Judge's approach. (I won't tell you what I really think because of a sense of decorum). Roe is an example of the Court hijacking the Constitution. It has its basis in the right to privacy which isn't even mentioned in the Constitution. Although there are some earlier cases dropping hints, the right to privacy was originally created/based on Douglas' ridiculous penumbra theory in Griswold v. Conn. It then moved to the "liberty" of the 5th and 14th Amends. That term no more included freedom to contract (see Lochner) and it did a right to an abortion. (If the right to privacy were based on the 9th Amend., I could swallow it a lot easier) Heller is actually based on the language of the Bill of Rights and a study of the history and philosophy of the Amendment. The two methodologies are very different and the latter is closer to what we expect judges to do. Heller was written by the Court's foremost originalist, Griswold by a free-wheeling left-winger. Sorry Judge, I'm not buying it.
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Joseph E. Olson Sent: Wednesday, September 17, 2008 6:10 PM To: [email protected] Subject: Oh, they are SOOOOO unhappy "Of Guns, Abortions, and the Unraveling Rule of Law" Virginia Law Review, Forthcoming J. HARVIE WILKINSON, United States Court of Appeals for the Fourth Circuit Email: [EMAIL PROTECTED] 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. Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [EMAIL PROTECTED] _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
