First Posner, now Harvie Wilkinson

I don't understand either Posner or Wilkinson's reasoning. The push for democracy on abortion seems radically different than the push for democracy on gun control. There is a second amendment. There is no discussion of abortion in the constitution. The Washington Post reports this:

"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 bottom line is that this shows how fragile the 5 to 4 Supreme Court decision in Heller is. Not only do you have a very narrow majority, but with such extremely prominent judges as Posner and Wilkinson (two of the three most cited appeals court judges) and ones that are viewed as conservative, this produces some real fragility. I think it just provides yet more reason why the outcome of this presidential election will determine whether the Heller case has any real long term impact.

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Blogger Jim Lagnese said...

I am going to walk out on a limb here John, and that's dangerous for someone my size. :) It's been my observation that socialism, marxism, communism, collectivism, or whatever you want to call it has its basis in a type of materialism where humans are only the sum of their material composition, that beyond our earthly existence, humans have no soul (how else could Stalin, Hitler, Castro et el be explained in their actions, in other words, it gives them license). Promulgating abortion reinforces this. In this church of the state, the individuals locus of control is external. Guns represent an independence whereby the individual has power, and also responsibility. When you talk individual rights and responsibilities, the locus of control is internal. This in direct conflict with socialist philosophy and not in the best interest of the church of the State, particularly well armed individuals. In the context of someone that supports a socialist or marxist philosophy, it makes sense to them to be pro-abortion and anti-gun, even if they can't elucidate the details, they buy into the mantra. Call a priori reasoning if you must. Anyway, I always enjoy your articles, as they provoke thought. Thank you.

9/28/2008 4:51 PM  
Blogger John Lott said...

Thanks, Jim. While your point surely applies to some people, I guess that I don't see it as applying to either of these two judges. In Posner's case, I honestly don't know what is happening. I know Dick and I don't believe that your concern applies to him. In Wilkinson's case, I think something much more complicated is occurring. I just don't think that he believes that the court has the power of judicial review that the courts have taken since Marbury v. Madison. Thanks for your comment.

9/28/2008 5:17 PM  
Blogger Jim Lagnese said...

If that's the case, then why Roe v. Wade? There's no amendment for it, it's not mentioned anywhere. I guess would it hurt to ask?

9/28/2008 5:21 PM  

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