Constitutional Law

Con law scholars on Heller

William van Alstyne, of William and Mary:

?This case is to the Second Amendment what Roe vs. Wade was to abortion,? he said. ?That one didn?t settle all the questions, and some people still don?t like it, but it was a watershed, like this one.?

Van Alstyne said the ruling?s ?heat and volume? give the opinion added weight ? 150 pages of research and dissections of the amendment?s 27 words, broken down phrase by phrase. The justices explored historical context and took into account how Americans spoke and wrote two centuries ago, when the amendment was ratified.

?Some people might try to dismiss it by saying it doesn?t amount to much, but that?s just wrong. This is serious business ? a meaningful opinion that will stand for the indefinite future.?

Glenn Harlan Reynolds Instapundit, U of Tenn.:

"But winning in the Supreme Court is just the beginning of the story. Even the biggest civil-rights victories have taken years to percolate through the lower courts, often in the face of foot-dragging or outright resistance from lower-court judges, states and municipalities.
Brown v. Board of Education declared racial segregation unconstitutional in 1954, but it took a decade or more of slogging to make its promise bear fruit - and even then Congress had to give things a boost by passing the 1964 and 1965 Civil Rights Acts.

By contrast, in the 1990s the Supreme Court decided a series of cases narrowing Congress' powers to regulate all sorts of things under the rubric of "interstate commerce." But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.
Without that pressure, the lower courts were free to ignore the Supreme Court's efforts to cut back on federal meddling - and that's what they did, to the point that some called it a "constitutional revolution where no one showed up."

If the Supreme Court's Heller decision is not to meet the same fate, Second Amendment enthusiasts will have to start bringing, and carefully litigating, follow-up cases so as to ensure that Second Amendment rights don't wind up championed mostly by "ugly" defendants such as drug dealers facing firearms charges.

Is the gun-rights movement mature enough to follow through on this week's victory? We'll find out."

But UCal Dean Ed Chemerinki is not so happy:

"What then explains the court's decision to strike down the D.C. law? Conservative political ideology. The majority followed prevailing conservative political philosophy and found that the 2nd Amendment bestows on individuals a right to have guns.

This should not be surprising. The conservative justices regularly jettison judicial restraint when it is at odds with conservative politics. They've done the same thing in cases involving affirmative action and desegregation programs.

The irony is that the same conservative justices who were so eager Thursday to find an individual liberty under the 2nd Amendment are loath to do so when a right of a criminal defendant is at stake or when it is a matter of enforcing the religion clauses of the 1st Amendment. Thursday's decision is a powerful reminder that the conservative justices are activists when it serves their political agenda."

Hat tip to Dan Gifford...

Full post as published by Of Arms and the Law on June 29, 2008 (boomark / email).