Constitutional Law

Article on Heller and a few critics

In the New York Times. And, despite the source, almost objective.

UPDATE: Bob Levy and William Mellor respond.

Personal take: the judges are of the brand of conservatives that dislike "judicial activism" (by which standard some of the liberal wing, esp. Souter, would be conservative). OK, but I can't see why, even with that approach, they cannot draw a line between:

Roe v. Wade, which recognized a non-enumerated right, and imposed non-enumerated restrictions upon it; and

DC v. Heller, which recognized an enumerated right, and suggested non-enumerated restrictions upon it.

The non-enumerated restrictions shouldn't be an issue. In the First Amendment we have tons of those. Free exercise of religion doesn't allow human sacrifice (tho it may animal sacrifice) or polygamy, freedom of the press doesn't allow kiddie porn (tho it does of computer-generated kiddies), freedom of speech doesn't cover disturbing the peace, threatening the president, etc. Nothing in the Bill of Rights (or its history) about human sacrifice, polygamy, non-computer generated kiddie porn, disturbing the peace, etc. So do they consider these non-enumerated *exceptions* proof of impermissible judicial activism?

Hat tip to Ambiguous Ambiguae...

Full post as published by Of Arms and the Law on October 21, 2008 (boomark / email).