Commentary: Some conservative jurists criticize Scalia's ‘activist' opinion on gun rights

The following editorial appeared in the Charlotte Observer on Monday, Oct. 27, 2008.

In a hotly contested case from the District of Columbia four months ago, the U.S. Supreme Court ruled that the Second Amendment protects an individual's right to own a gun even if local political preference calls for controls on weapons. The ruling struck down Washington's gun control law, except for bans on possession by the mentally ill or the carrying of weapons in sensitive places such as schools. The 5-4 decision was written by Justice Antonin Scalia, perhaps the court's most conservative justice, and was widely hailed by hunters and other firearms advocates who oppose heavy restrictions on gun ownership.

But the reaction from conservative judges has been a surprise, the New York Times noted last week. Two prominent appellate justices say Scalia's majority opinion was "illegitimate, activist, poorly reasoned and fueled by politics rather than principle," the Times reported. Worse yet, the judges critical of Scalia's opinion in District of Columbia v. Heller say it was "a right-wing version of Roe v. Wade," the 1973 opinion recognizing a woman's constitutional right to have an abortion, the newspaper added.

Those are fighting words in any conservative forum. But Appellate Judge Harvie Wilkinson of Virginia, a member of the 4th U.S. Circuit Court of Appeals in Richmond, is ready for that fight. In a forthcoming article in the Virginia Law Review, Wilkinson wrote, "the Roe and Heller courts are guilty of the same sin .... The court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."

To read the rest of this commentary, go to The Charlotte Observer.