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:
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.
"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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First Posner, now Harvie Wilkinson
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