 |
|
The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014
Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology
John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain
The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious
April 14, 2014
Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time
Eric Schulzke: First degree: How America really recovered from a murder epidemic
Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships
Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin
Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate
Justin Caba: Eating Watermelon Can Help Control High Blood Pressure
April 11, 2014
Rabbi Hillel Goldberg: Silence is much more than golden
Susan Swann: How to value a child for who he is, not just what he does
Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer
Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You
April 9, 2014
Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?
Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease
April 8, 2014
Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease
Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear
April 4, 2014
Amy Peterson: A life of love: How to build lasting relationships with your children
John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet
John Ericson: Why 50 million Americans will still have spring allergies after taking meds
Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves
April 2, 2014
Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?
Frank Clayton: Get happy: 20 scientifically proven happiness activities
Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene
|
| |
Jewish World Review
Nov. 22, 2008
24 Mar-Cheshvan 5769
Reinventing the Second Amendment
By
George Will
| 
|
|
|
|
http://www.JewishWorldReview.com |
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 that the Second Amendment protects an individual right to bear arms. Now, however, a distinguished conservative jurist argues that 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 that 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 that 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 that 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. And this right somehow contains the trimester scheme of abortion regulations.
| FREE SUBSCRIPTION TO INFLUENTIAL NEWSLETTER |
| Every weekday NewsAndOpinion.com publishes what many in the media and Washington consider "must-reading". HUNDREDS of columnists and cartoonists regularly appear. Sign up for the daily update. It's free. Just click here. |
|
Since 1973 the court has been entangled in the legislative function of adumbrating an abortion code the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.
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. But now, Wilkinson says, conservatives are delighted that Heller has put the court on a similar path.
In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated that 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. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with records of domestic violence) who may own guns? On the number of gun purchases in a month?
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 that 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.
It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side — the legislature.
When rights are unambiguously enumerated, courts should protect them vigorously. But Wilkinson says that 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 that 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.
Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.
George Will's latest book is "With a Happy Eye but: America and the World, 1997-2002" to purchase a copy, click here. Comment on this column by clicking here.
Archives
© 2006 WPWG
|
|
Columnists
Toons
Lifestyles
|
