Is Heller like Roe v. Wade? A reply to Judge Wilkinson:

Fourth Circuit Judge J. Harvie Wilkinson, III, is the author of a forthcoming article in the Virginia Law Review, Of Guns, Abortions, and the Unraveling Rule of Law. Wilkinson criticizes the Supreme Court's decision in District of Columbia v. Heller, and argues that the majority opinion is wrong for the same reasons that Roe v. Wade was wrong: both cases violated "judicial values," such as deference to legislative decisions, avoidance of political thickets, and federalism. The draft article has attracted much favorable attention from the media, including the New York Times, Washington Post, Associated Press, and George Will.

In a working paper now available on SSRN, Nelson Lund and I critique Judge Wilkinson's equation of Heller and Roe. Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III argues that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

After addressing the Roe analogy, our article examines Judge Wilkinson's stated rules of judicial restraint. We contend that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. The article suggests that Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. Although the Wilkinson article is couched in the language of judicial restraint, it amounts to an endorsement of judicial lawlessness.