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Right Opens Fire on High Court's Gun Ruling

2nd Amendment call was a question for states: legal scholars

By Jason Farago, Newser Staff

Posted Oct 21, 2008 8:10 AM CDT

(Newser) – Last summer's Supreme Court decision that ruled citizens have an individual right to possess guns drew hosannas from the American right wing. But now the court's ruling is coming under attack—from conservative legal scholars. As the New York Times reports, two Reagan-appointed judges have called DC v. Heller the conservative version of Roe v. Wade, unjustly transferring a political question from the states into the courts.

For Richard Posner, an influential appeals court judge, the Heller decision "was the mistake that the Supreme Court made when it nationalized abortion rights." J Harvie Wilkinson, another appellate judge once considered for a Supreme Court seat, was even more scathing: he said Heller seemed like "a revenge of sorts for Roe, a sort of judicial tit-for-tat."

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The Supreme Court (©dbaron)

The Supreme Court's ruling on an individual right to bear arms has come in for trenchant criticism from conservative legal scholars. (©NCinDC)

Dick Heller signs an autograph outside the Supreme Court in Washington, Thursday, June 26, 2008, after the court ruled that Americans have a constitutional right to keep guns in their homes. (AP Photo/Jose Luis Magana)

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In both Roe and Heller, 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. - J Harvie Wilkinson, appellate judge

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Right Opens Fire on High Court's Gun Ruling