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— Supreme Court Justice Antonin Scalia is no stranger to criticism. He gives as good as he gets.
But two recent critiques of his opinion in the landmark decision guaranteeing people the right keep guns at home for self-defense are notable because they come from respected fellow conservative federal judges.
The judges, J. Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, take Scalia to task for engaging in the same sort of judicial activism he regularly disdains.
Wilkinson was interviewed by President Bush in 2005 for a Supreme Court vacancy. His article strongly suggests that the 5-4 decision in Heller v. District of Columbia would have come out differently if he had been chosen for the court. Bush's appointees to the high court, Chief Justice John Roberts and Justice Samuel Alito, joined Scalia's opinion.
The district's elected government is trying to figure out how to maintain restrictions on gun possession in the wake of the court ruling that struck down its 32-year-old ban on handguns. The D.C. council voted this month to let residents own most semiautomatic pistols and eliminate a requirement that guns be stored unloaded or secured with trigger locks.
Congressional critics said the city did not go far enough. The House passed a bill, backed by the National Rifle Association, that broadens the rights of city residents to buy and own firearms. The Senate has yet to act.
Wilkinson said elected officials are in a better position to determine gun laws than the courts. He compared the gun case to Roe v. Wade, the abortion rights decision that conservatives consider among the court's worst.
"Heller represents a triumph for conservative lawyers. But it also represents a failure — the Court's failure to adhere to a conservative judicial methodology in reaching its decision," Wilkinson wrote in an article to be published next year in the Virginia Law Review. "In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts."
The guns case was easily the most significant opinion Scalia has written in his 22 years on the court. Yet Wilkinson faults the justice for falling victim to the same criticism Scalia leveled in a scathing dissent in the court's 1992 decision that reaffirmed the right to an abortion.
"I cannot help but recall Justice Scalia's lament ... that 'by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish,'" Wilkinson said, quoting from Scalia's dissent.
"Yet, sixteen years later, the court now takes an issue about which the nation is deeply divided and narrows democratic outlets, overlooks regional differences, and imposes a rigid national rule," he said.
Posner, writing in The New Republic last month, said of Scalia's work in Heller: "The decision ... is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology."
He called on the justices to practice "judicial modesty" and resist the temptation to put a glaze of history on decisions that reflect their personal values and policy preferences. "It would go some distance toward depoliticizing the Supreme Court," said Posner, a prolific writer who frequently comments on key issues.
Scalia has said on many occasions that ideology does not enter into his decisions. Instead, he is a proponent of determining what the words of the Constitution meant when they were written, a concept called originalism.
Just this past week, speaking at the University of Montana, Scalia repeated his claim that the court is divided between justices who believe in originalism and those such as Justice Stephen Breyer, who believe that judges sometimes must be guided by more than the language of laws, if the words are ambiguous or embody a value that must be applied to specific circumstances.
"It's not a conservative-liberal fight on the court," Scalia said. "It really isn't. It has to do with what your view of the Constitution is."
In the guns case, however, Justice John Paul Stevens performed his own analysis of the original meaning of the Second Amendment and dissented, suggesting that divining the meaning of the amendment when it was written is a close call.
Judges, Wilkinson said, "should be modest in their ambitions and overrule the results of the democratic process only where the constitution unambiguously commands it."
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