[ In fact, conservative jurists were quick to criticize
Heller as lacking two supposed hallmarks of judicial conservatism: an unbiased review of the evidence about the meaning of the Second Amendment and, given ambiguity about that meaning, judicial restraint. Justice Scalia’s opinion, these judicial conservatives argued, deployed an unbalanced historical analysis, reached a questionable conclusion about a constitutional right, and failed to defer to the judgments of elected officials.
J. Harvie Wilkinson III, a conservative Fourth Circuit judge,
likened Heller to
Roe v. Wade, and suggested that
Heller was a “new” form of judicial activism based in “originalism.” Conservative Seventh Circuit Judge Richard Posner
agreed in equally stark terms, writing that
Heller reflected not conservatism, but rather “freewheeling discretion strongly flavored with ideology.”
To be sure, not all conservatives agree with this critique from the right and, in any event,
Heller is now on the books and the rule of law requires lower courts to abide by it.
But the perceived judicial activism underlying
Heller is relevant to how lower court judges, especially many judicial conservatives, analyze challenges to gun laws less extreme than the handgun ban at issue in
Heller. In those cases, judges must decide whether to extend
Heller’s core holding — which, in its narrowest form, is that the Second Amendment protects the right of law-abiding citizens to possess a handgun in the home for self-defense — in order to strike down firearm restrictions in other circumstances. In making that decision, lower court judges are guided by cautionary language in
Heller itself that the Second Amendment is “not unlimited” and that the opinion should not “cast doubt on longstanding prohibitions,” which are “presumptively lawful.” ] - quotes
Following Justice Scalia’s famous opinion in District of Columbia v. Heller, conservative and liberal judges generally agree on the scope of the Second Amendment right.
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