March 18th, 2008 • 10:34 pmActivist Justices vs. Strict Constructionist Justices
This afternoon, the Supreme Court heard arguments in the case of District of Columbia v. Heller. Based on the questions that the strict constructionist jurists asked, it appears likely that DC’s gun ban law won’t be sustained. Here’s what Stephen Breyer asked:
Justice Stephen G. Breyer noted the number of people killed by handguns and asked if it was unreasonable for a “city with a very high crime rate to say ‘no handguns here.’”
Here’s how Chief Justice John Roberts responded to Breyer’s question:
Chief Justice John G. Roberts Jr. asked: “What’s reasonable about a total ban on possession?”
Here’s the Washington Post’s reporting that makes me believe that DC’s ban will be overturned:
Justice Anthony M. Kennedy, often seen as the deciding vote on the divided court, immediately made it clear he did not accept the District’s arguments, and the views of a vast majority of federal appeals courts, that the Second Amendment provided only a collective right to gun possession in furtherance of military purpose.
The amendment states: “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.”
Kennedy said he thought the much-debated first clause was simply “reaffirming” the importance of the Constitution’s militia clause and that it clearly stated “there is a right to bear arms” that is separate.
Liberals thought that Justice Kennedy would vote like Sandra Day O’Connor. Based on his votes since Justice O’Connor retired, it’s clear that they thought wrong. While Justice Kennedy isn’t another Scalia or Roberts, it’s clear that he isn’t another Justice O’Connor either.
Here’s another part of the Post’s reporting that sounds reasonable:
But a finding of an individual right means the court must decide what kind of restrictions would be proper for legislation to impose and under what standard a court should judge them.
Solicitor General Paul D. Clement told the justices that too strict a standard would imperil the federal government’s efforts to restrict machine guns or “plastic” guns meant to avoid metal detector screening. The right to bear arms, Clement argued, “always coexisted with reasonable regulations of firearms.”
Alan Gura, representing those challenging the District law, said he agreed that the “government can ban arms that are not appropriate for civilian use,” but he said handguns clearly are not included in such a restriction.
I wouldn’t be surprised if my Second Amendment friends took exception to my comments. That said, we regulate things because they conflict with public safety. The lone exception should be the First Amendment.
When the ruling is issued, likely in late June, the Roberts Court will likely restore sanity to the Second Amendment. That’s the difference between an activist court and a strict constructionist court.
That’s why it’s vitally important to elect John McCain to succeed President Bush. If we can get another reliable strict constructionist confirmed, then we will have established sanity on the Supreme Court for another generation.
Technorati: SCOTUS, Second Amendment, John Roberts, Anthony Kennedy, Sandra Day O’Connor, Stephen Breyer, Activist Judges, Strict Constructionists, John McCain, Election 2008
Cross-posted at California Conservative
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In general I agree with your analysis, however, I would have to point out that even the First Amendment has been subjected to regulation.
The most immediate example I can think of is needing a permit to protest.
Comment by Kevin • 19Mar2008 @ 2:18 am
Fair point Kevin.
Comment by Gary Gross • 19Mar2008 @ 5:31 am
This isnt the Roberts Court its the Kennedy Court. With four solid liberal votes and four solid conservative votes Kennedy is calling the shots. The other eight should just stay home and let Anthony decide what the law is.
The most immediate example of First Amendment regulation I can think of is McLame-Foolsgold, a bill two notorious libs have inflicted on our body politic to protect incumbents.
Comment by skep41 • 19Mar2008 @ 11:04 am
I hate telling you this but Kennedy’s become far more reliable since O’Connor retired.
Comment by Gary Gross • 19Mar2008 @ 12:00 pm
I find it incredibly funny that the “strict constructionist” judges are the judges who would overturn a law, passed by elected legislatores, on Constitutional terms that are shaky at best, while the so-called activists are voting in favor of local government. The term “activist judge” has become such a conservative buzzword that it’s lost all meaning. Judges are “activist” when overturns the will of the electorate, not when they vote conservatively. After all, one of the most “activist” decisions in Supreme Court history was the Lochner case, which was as conservative as you get and has become the standard bearer for judicial over-reaching. It was only with the Warren Court in the 1960s, which read civil rights (in other words, restrictions on the government’s power to regulate citizens) into the Constitution when these rights weren’t expressly found in the text.
Even the most ardent proponent that the Second Amendment grants an individual right has to accept that this position takes some parsing of the language. It’s just not clear from the face of the amendment that the framers meant that every American citizen has an individual right to own a gun. In contrast to the 1st Amendment’s command that “Congress shall make no law” restricting the right to free speech, exercise of religion, press, etc., the language of the 2nd is vague.
Now, generally agree that the DC law was too restrictive; however, I don’t think that DC violated the constitutional right of its citizens in passing that law. My response is somewhat akin to one of the dissenters in Griswold (the infamous Warren Court era case that found a “right to privacy” in the “penumbras and emanations” of the 1st, 4th, 5th, and 9th Amendments) Because the 2nd Amendment is so vague, it is ACTIVIST to read in a fundamental, individual right. Judicial RESTRAINT cautions that, in the face of vague constitutional language, the judge should err on the side of the right of the people to pass legislation that reflects local needs, rather than strike down a democratically-passed statute. Cases like Heller really highlight the hypocrisy of Scalia, Thomas, et. al’s supposed commitment to federalism.
As an aside, if I were going to attack the DC statute’s trigger lock requirement, I’d look to the 4th, not the 2nd, Amendment. After all, how can the state know the condition of the gun you stored in your own home unless they unlawfully search your residence? Unless the police have probable cause to suspect that you have a gun in your residence that was linked to the commission of a crime, they wouldn’t be able to get a warrant to enter your home. Thus, the DC law cannot enerally be enforced without violating the 4th Amendment!
Comment by craig • 20Mar2008 @ 2:35 pm