Tuesday, October 21, 2008
How else to explain this part of his critique of the Supreme Court's faux-orginalist decision in Heller:
Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”
Now that sounds familiar!
But seriously, it's obvious to anyone who is sober that the Heller originalism dance is a charade and that, as Judge Posner notes in How Judges Think (surely the most important book on judging by a judge since Cardozo's The Nature of the Judicial Process eighty years ago), the Supreme Court is essentially "a political court."