Of Guns, Abortions, and the Unraveling Rule of Law

Essay — Volume 95, Issue 2

95 Va. L. Rev. 253
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Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation’s history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms. 

I am unable to join in the jubilation. 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. 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. 

In this Essay, I compare Heller to another Supreme Court opinion, Roe v. Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked by conservatives, while many of those same critics are roundly praising Heller. And yet the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.

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  Volume 95 / Issue 2  

Of Guns, Abortions, and the Unraveling Rule of Law

By Judge J. Harvie Wilkinson III
95 Va. L. Rev. 253

The Antitrust of Reputation Mechanisms: Institutional Economics and Concerted Refusals to Deal

By Barak D. Richman
95 Va. L. Rev. 329

Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases

By Jessica L. Chilson
95 Va. L. Rev. 389

Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887

By Kelly Elizabeth Phipps
95 Va. L. Rev. 435