Wednesday, July 9, 2008

Guns and Judges


Judicial activism. Legislating from the bench. Ideological decision-making by judges.

No sooner had the Supreme Court announced its decision in District of Columbia v. Heller than critics of the 5-4 majority decision and the court's sometimes-conservative majority cried all the above. In holding that the Second Amendment granted individuals the right to keep and bear arms, the court's conservatives—those champions of judicial modesty and originalism—were now engaging in judicial activism of their own. Yes, everybody does it, and conservatives are just hypocrites for pretending otherwise.

The Washington Post's E.J. Dionne Jr. was at the head of the pack, with a column that appeared in The Oregonian the day after the decision. Not only was "the judicial right" guilty of this, but the ruling also showed that its talk of deferring to local authorities and elected officials on political decisions and heeding the Constitution's precise words was poppycock.

It's hard to know what accounts for the "They're activists, too" line. Is it confusion or a conscious bid to attack the judicial right's greatest strength—the solid, winning notion that judges should interpret, not make, law? It certainly cannot be an impartial reading of Justice Antonin Scalia's majority opinion or a full understanding of judicial restraint.

Dionne thinks it's telling—telling of dishonesty—that Scalia spent the first 54 pages of the majority opinion explaining away the first 13 words of the Second Amendment ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"). Dionne seems to have spent more time counting than reading. Would he have found the decision more compelling if Scalia had spent 25, 12 or no pages? Or would he have criticized it for not exploring the contemporaneous meaning and relevance of those (13) prefatory words and the (14) words that follow? Somehow I doubt he would have found any number of pages satisfactory, because he disagrees with the result. But what those 54 pages contain is honest, old-fashioned constitutional analysis—a look at the text and context of the Second Amendment before, during and after the Framing.

But doesn't the "judicial right" favor local decision-making? Shouldn't elected city officials be able to craft policies (handgun bans) to deal with gun violence in their crime-ridden community? Not if they trample on the Constitution in the process. They cannot abrogate the First Amendment's assembly protections or the Fourth's search-and-seizure safeguards because a community wants to deal with gang violence or any other local problem. A due regard for states and local governments in our federal system and a proper judicial deference to the legislative and executive branches on political questions doesn't allow elected officials or unelected judges to ignore the Bill of Rights, and nobody on Dionne's "judicial right" has ever said otherwise.

Dionne and the Heller minority think the Second Amendment recognizes a collective right tied to "a well-regulated Militia," not any individual's right to keep and bear arms. They cite the 1939 "precedent" of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce. They think this shows the majority's contempt for precedents anathema to conservatives.

Scalia argues, however, that Miller is no precedent at all for their view. He notes that Miller did not center on the fact that the two individuals were not bearing arms for military purposes. In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the "preservation or efficiency of a well regulated militia." As Scalia wrote for the majority, "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." Bingo.

Noting Scalia's 54 pages on the 27 words of the Second Amendment, the page-counting Dionne wrote last week. "Does that reflect an honest attempt to determine the 'original' intention of the framers?"

Actually, it does. Majestically so.

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