Latest gun ruling a case of conservative judicial activism
Two years ago, in District of Columbia v. Heller, the Supreme Court took the unprecedented step of ruling that the Second Amendment guarantee of the right to bear arms was an individual right rather than a right tied to a “well-regulated militia.” Today, in McDonald v. City of Chicago, it ruled 5-4 that state and local governments are as bound by that interpretation as the federal government, a step that greatly restricts their ability to legislate in that arena.
Symbolically, the ruling is a big victory for the gun lobby. But its practical effect is another matter. A decade or two ago, when hot political battles were still being fought over gun control, rulings such as these would have had significant impact. But the truth is that the single-minded passion of gun-rights advocates long routed their opponents in the political arena, making gun-control arguments in the political arena all but moot.
In that sense, the Supreme Court is merely following the election returns, as Mr. Dooley long ago noted.
But it will be interesting to see how the issue plays out. In Heller, the court wrote repeatedly of the constitutional right to self-defense and singled out handguns as “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” Heller also noted that the right to bear arms is NOT “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
In addition, Heller expressly did not apply to “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.”
As Justice Stephen Breyer notes in his dissent, the rulings in Heller and McDonald strip power from state and local governments and place it in the hands not just of the federal government, but of the federal courts. In its centralization of power, its rejection of precedent and and its investment of legislative power in the courts, the court has taken a decidedly activist role.
In fact, Breyer notes, it requires judges, not legislatures, to now address a variety of questions regarding the costs and benefits of various firearms restrictions:
“Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time of day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right (to self-defense) interact with a state or local government’s ability to take special measures during, say, national security emergencies?”
“Legislators,” Breyer notes, “are able to ‘amass the stuff of actual experience and cull conclusions from it.’ United States v. Gainey, 380 U. S. 63, 67 (1965). They are far better suited than judges to uncover facts and to understand their relevance. And legislators, unlike Article III judges, can be held democratically responsible for their empirically based and value-laden conclusions.”
The Supreme Court — the ostensibly conservative, anti-activist, pro-states’ rights Roberts court — has taken those decisions out of the hands of legislatures and city councils and placed them in the hands of its colleagues in the federal judiciary.
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619 comments Add your comment
Not My Real Name
June 28th, 2010
11:07 pm
Bring it or go to beddy bye……
josef nix
June 28th, 2010
11:09 pm
Okay, Bruin, you’re over 600. I even pay attention to the ads. Tell your handlers. I’ve done my part, so, punching my time card and outta here…enjoyed…
Joe
June 29th, 2010
1:14 am
“2nd ammendment reads:
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.
How is this unclear?”
What is ‘arms’? That is what is unclear. Why can we own certain weapons and not others? If you want to follow it strictly, we should just be allowed to own muzzle loaders.
Dave
June 29th, 2010
1:25 am
Other rights that the High Court has deemed appropriate for incorporation, through the 14th Amendment to the United States Constitution, require judges to make judgment calls on a regular basis. The fact that judges will be required to fulfill their role in protecting the right is neither evidence nor argument that the right does not exist. Legislatures pass laws restricting freedom of speech in ways that are permitted by the Constitution. As a journalist you know (or should know) full well that time, place, and manner restrictions have been upheld. Obsenity is not protected speech. Political speech is limited through rules governing campaign advertising and funding. Obviously, courts play a role in determining when State Legislatures and City Councils have gone to far. It will be no different here. The “exclusionary rule” is certainly responsible for the filing of countless search and seizure motions in criminal proceedings. The exclusionary rule is not even a constitutional requirement. It is a judicially created rule implemented to provide teeth to the Constitutional right. This judicially created rule was crafted, resulted in tremedous litigation backlogs, and has been incorporated into the 14th amendment and applied to the States. Somehow judges are fully capable of protecting this right, but incapable of determining when and how to protect a fundamental right specifically set forth in the Constitution? I’m not buying your brand.
Dave
June 29th, 2010
1:39 am
I read my last comment and realized that it was a bit of a rant. I am sorry. My point is that Heller confirmed the existence of a right enumerated in the Constitution. This case simply mandates application of that right against the States. It limits the power of both the State and Federal government to infringe on the people’s right to keep and bare arms. It does not provide judges with more power than they had yesterday. It has provided them with less. It has not taken power from the States. It has returned to the people a power, right, and choice that had previously been denied to them. Everyone in Chicago is more free today than they were yesterday, because they have a choice available today that was unlawful yesterday.
Judges are fully capable of reviewing State, local, and Federal laws to determine whether they unlawfully violate the Constitution. This same exercise has taken place time and time again. Judges review searches to determine whether they violate the 4th Amendment. Judges review State laws regarding the death penalty to determine whether they conform to Constitutional limitations. Judges review abortion laws to determine whether State regulations are permissible or extend too far and abrogate the “right to privacy.” No Constitutional rights are absolute. All are tempered and measured by judicial decisions. Jay Bookman’s argument to the contrary demonstrates the desparation of his position and probably shows that he did not read the portions of Alito’s and Scalia’s opinions addressing these very points.
chuck
June 29th, 2010
2:02 am
So Jay, would it be “activism” if the court had struck down a state law that was in violation of the 14th amendment? Just so you know, activism is when the court creates a right that ISN’T in the Constitution like Roe v.Wade….NOT when they confirm a right that IS in the constitution.
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2010
4:36 am
“In our view, it is way too early to apply the fiscal brakes,” said Zach Pandl, an economist at Nomura Securities. Cutting off unemployment benefits “is a dangerous way to cut deficits when the economy is still fragile.” -Urinal
Show of hands if you’ve ever heard of “Nomura Industries,” just sayin…
obozo and the libs, they ask our enemies for economic advice.
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2010
4:43 am
It rains every day in the Atl and the reservoirs are brimming with water-
My Opinion
Listen to candidates on drought
Georgia’s ongoing water crisis defies an easy solution, or even an easy explanation. -kookman, Urinal
Yes, let’s kneecap our politicians with pointless exercises, just a suggestion…
We wouldn’t want them to create jobs, stop the oil leak, improve the economy or anything like that.
USinUK
June 29th, 2010
6:13 am
oh, all right … since whiner is too lazy to use teh google …
http://dealbook.blogs.nytimes.com/tag/nomura-holdings/
“We wouldn’t want them to create jobs, stop the oil leak, improve the economy or anything like that.”
but … but … but … I thought the gummint didn’t “create jobs” … and I thought the market was the solution to EVERYthing! .
USinUK
June 29th, 2010
6:28 am
btw … for all you applauding the Supreme’s decision … it seems to me that, if they can trample over states’ rights to implement gun controls, they can also trample over states’ rights to limit women’s access to abortion …
… just a thought for ya …
Gun Rights Predicated on Regulation « KELOLAND.com | Issues Blogs
June 29th, 2010
8:02 am
[...] can’t rely on the Second Amendment; you have to hope for judicial activism… like that exercised by the Court’s slim conservative majority Monday. About Cory Allen Heidelberger: Cory Allen Heidelberger writes, paints, bikes, and dreams [...]
Eli Jones
June 29th, 2010
8:55 am
“THIS IS WHO ELANA KAGAN IS” (OBAMA’S SUPREME COURT PICK)
She is a radical judicial activist, who agrees with former Justice Thurgood Marshall that the Constitution given to us by the Framers was “defective” and that it contained “outdated notions of liberty, justice and equality.”
Her “judicial hero” is former Israeli justice Aharon Barak, who said a judge “may give a statute a new meaning…[t]he statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”
She is anti-military and pro-homosexual. While dean of the Harvard Law School, she kicked military recruiters off campus, in defiance of a federal law which had been upheld by the Supreme Court on a unanimous vote. She said she “abhorred” the military’s ban on open homosexual service, and called it a “moral injustice of the first order.”
She believes in the supremacy of international law over the Constitution. While dean at Harvard Law, she dropped the required course in the Constitution and replaced it with a required course on international law.
She is pro-abortion and anti-life. She has contributed financially to pro-abortion groups, and believes that abortions should be taxpayer funded.
She believes that the government may ban political pamphlets and books during an election season, in violation of the First Amendment’s free speech protections.
She is anti-Second Amendment. She is “not sympathetic” to the claim that individuals have the right to keep and bear arms under the Constitution.
She is pro-Muslim. At the same time she kicked military recruiters off campus, she allowed Saudi Arabia to recruit lawyers for work on Shariah-Compliant Finance.
She is anti-capitalist and pro-socialist, once writing glowingly of “socialism’s greatness.”
Former Supreme Court nominee Robert Bork said that if Kagan is confirmed “you will have a court that is much more to the left than we have today.”
Eli Jones
June 29th, 2010
8:57 am
President Obama will be handed the power to shut down the Internet for at least four months without Congressional oversight if the Senate votes for the infamous Internet ‘kill switch’ bill, which was approved by a key Senate committee yesterday and now moves to the floor.
The Protecting Cyberspace as a National Asset Act, which is being pushed hard by Senator Joe Lieberman, would hand absolute power to the federal government to close down networks, and block incoming Internet traffic from certain countries under a declared national emergency.
Despite the Center for Democracy and Technology and 23 other privacy and technology organizations sending letters to Lieberman and other backers of the bill expressing concerns that the legislation could be used to stifle free speech, the Senate Homeland Security and Governmental Affairs Committee passed in the bill in advance of a vote on the Senate floor.
In response to widespread criticism of the bill, language was added that would force the government to seek congressional approval to extend emergency measures beyond 120 days. Still, this would hand Obama the authority to shut down the Internet on a whim without Congressional oversight or approval for a period of no less than four months.
The Senators pushing the bill rejected the claim that the bill was a ‘kill switch’ for the Internet, not by denying that Obama would be given the authority to shut down the Internet as part of this legislation, but by arguing that he already had the power to do so.
They argued “That the President already had authority under the Communications Act to “cause the closing of any facility or station for wire communication” when there is a “state or threat of war”, reports the Sydney Morning Herald.
Fears that the legislation is aimed at bringing the Internet under the regulatory power of the U.S. government in an offensive against free speech were heightened further on Sunday, when Lieberman revealed that the plan was to mimic China’s policies of policing the web with censorship and coercion.
“Right now China, the government, can disconnect parts of its Internet in case of war and we need to have that here too,” Lieberman told CNN’s Candy Crowley.
While media and public attention is overwhelmingly focused on the BP oil spill, the establishment is quietly preparing the framework that will allow Obama, or indeed any President who follows him, to bring down a technological iron curtain that will give the government a foot in the door on seizing complete control over the Internet.
As we have illustrated, fears surrounding cybersecurity have been hyped to mask the real agenda behind the bill, which is to strangle the runaway growth of alternative and independent media outlets which are exposing government atrocities, cover-ups and cronyism like never before.
Indeed, China uses similar rhetoric about the need to maintain “security” and combating cyber warfare by regulating the web, when in reality their entire program is focused around silencing anyone who criticizes the state.
The real agenda behind government control of the Internet has always been to strangle and suffocate independent media outlets who are now competing with and even displacing establishment press organs, with websites like the Drudge Report now attracting more traffic than many large newspapers combined. As part of this war against independent media, the FTC recently proposing a “Drudge Tax” that would force independent media organizations to pay fees that would be used to fund mainstream newspapers.
Scout
June 29th, 2010
9:04 am
USinUK:
You are correct ! That’s why we have the Bill of Rights that not even the States can trample on !
Dave
June 29th, 2010
4:27 pm
USinUK
Quick protocol. The Federal Government has been trampling States’ rights for 200 years. The bottom line is that you either believe the Bill of Rights applies to the States or you don’t. The selective incorporation doctrine is probably the most ridiculous modern legal contrivance. It was merely invented to leave open controversial questions. There is no defensible justification for incorporating some rights and not others. If you think that each state is permitted to establish its own religion free from Federal restraint, then you should be upset with this decision. If you believe that the State is not permitted to prescribe a state sponsored religion, place prior restraint on speech, or unreasonably search its citizens without probable cause, then you should be happy with the way this case turned out.
Mike
June 30th, 2010
10:22 am
The exceptions to the first amendment have been spelled out, no shouting “fire” in a crowded theater, etc. What I can’t determine is the rational here for the allowance of regulations on who can own a weapon. While restricting felons and mentally ill people from owning weapons seems reasonable, where does the 2nd amendment mention that? Where does it mention what type of weapons a person may own? It does mention a “well regulated militia”. If you use strict logic, it explicitly states that the right to keep and bear arms will not be infringed. It doesn’t mention what types of arms or who can own them, just that said ownership will not be infringed. It doesn’t say you need to be a citizen, adult, sane, or anything else. If you completely divorce the militia preamble from the statement, this right has none of the commonsense restrictions that the justices have said exist. The right to bear arms is absolute and no restrictions, reasonable or not, exist. Everyone has the right to own nuclear weapons and planet destroying weapons (when they are invented). If we are talking about the intent of the Founding Fathers, I suspect if you showed the effectiveness of a 9mm Beretta to a Founding Father, he would be extremely unlikely to accept the current language of the 2nd amendment to mean gun ownership is a constitutional right with no restriction.
Dave
June 30th, 2010
11:16 am
@ Mike
Your concerns regarding the Bill of Rights prescription of an absolute right to gun ownership is no different from the language governing religious freedom. For example, the Constitution says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
However, we do prohibit the free exercise of religions that call for drug use, human sacrifice, or even animal sacrifice in a manner inconsistent with health codes. There is no Constitutional justification for permitting the government to prohibit people from freely engaging in their religion. However, the Courts have determined that neutral regulations (i.e., not directed solely toward a particular religious group or groups) of general applicablity that happen to infringe upon religious liberty do not violate the Constitution.
This is the world in which we live. The Court has always used common sense to fill in the gaps left by the Constitution. In the same way that you say a Founding Father would be unlikely to accept the current language of the 2nd Amendment, if faced with todays weapons, many people argue that freedom of speech, religion, and search and siezure provisions would be quite different when faced with a world where (i) “religion” is not defacto code for forms of Protestant Christianity, (ii) people argue that child pornography is a form of speech, and (iii) the exclusionary rule allows guilty people, faced with a mountain of evidence in support of their guilt, to walk free from our justice system.
The effect of this ruling is important, but far from monumental from the perspective of Constitutional history.
Mike
June 30th, 2010
11:51 am
@Dave
Thanks for the civil and thoughtful response. I agree with the points you have made about religion. Mostly, it seems that the restrictions applied upon religion are designed to prevent someone from committing a crime by saying it is required by their religion. I guess the point that I was trying to make is that the court in this case seems to be making things up as they go along to suit their goal. If you can ban machine guns why not hand guns? Politics and not law seems to be the main deciding factor in their decision. With this much apparent leeway allowed in interpreting our rights, likely any interpretation of the 2nd amendment could be considered correct (like ownership of planet destroying weapons for all or only the military can have weapons period).
Republican
July 2nd, 2010
4:13 am
[...] up defining their term. …Gun rights, campaign spending top high court termThe Associated PressLatest gun ruling a case of conservative judicial activismAtlanta Journal Constitution (blog)Conservative media figures falsely accuse Sotomayor of testifying [...]