|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.|
"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.
Last time I check I remember it being the Constitution of the United States, not the Constitution of the United States Buffet where you can pick and choose where rights and laws can be used or not. The right to Abortion is no where in the Constitution so that dissent doesn't apply among other reasons to gun rights.