The Supreme Court’s Heller ruling upholding the Second Amendment’s individual right to bear arms has created uproar among liberals. But rather than addressing Justice Scalia’s powerful logical and historical analysis of the amendment, they have attacked it as judicial activism.
However, the central issue is not judicial activism. It is not whether the court should be active, but which principles will inform its activity. In fact, activism that constrains government power in deference to constitutional protections mirrors our founders’ views.
This is clear from Federalist 78, America’s most famous statement of the intended role of our judiciary:
[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter … to guard the Constitution and the rights of individuals …
Federalist 78 asserts that judges are not to invalidate laws consistent with the Constitution, but since every law is not constitutional just because it was passed, courts are to actively strike down what is inconsistent with the Constitution. It defines the court’s proper role as neither an active subverter of those rights nor a passive accomplice in subversions by others in government, but as an active guardian of the Constitutional rights of citizens, enforcing its limitations on government power over them.
Why have liberals skirted the real issue to focus on allegations of court activism? Because a court that takes seriously the Constitution as the highest law of the land is necessarily at odds with those who insist the Constitution is a ‘living document.’ If the meaning of the Constitution can easily be altered by judicial interpretations, then it cannot be the highest law of the land in practice. But because such ‘living document’ rulings have been attacked as judicial activism, using the same language to attack Heller confuses issues and paints defending the Constitution as unprincipled.
A court actively defending the Constitution threatens precedents that liberal courts have used to create new rights out of thin air (or from ‘emanations from penumbras’ around stated rights) or have done serious violence to the meaning of the Constitution through reinterpreting what its words mean — words like ‘taking’ in the 5th Amendment, ‘commerce’ in Article 1, and even ‘no’ and ‘not’ in the Bill of Rights. But they are determined to defend those precedents, which have effectively changed the Constitution, while bypassing the process established to change it legitimately.
In fact, the approach in Heller threatens the pattern of Supreme Court activity since the 1930s. Liberal courts create new rights, expanding government powers or eroding freedoms from government control. But to prevent those Constitutional deviations from being overturned, they then insist that conservative courts must leave them in place and build upon them, out of deference to those ‘new and improved’ precedents. The result has been the ongoing erosion of Americans’ rights.
Of course, if the Supreme Court must defer to earlier precedents, there is no respectable argument for the creative interpretations (such as from the New Deal and Warren courts) liberals are now so desperate to defend, since they clearly deviated from Constitutional precedent.
Rulings such as Heller do not ignore precedents, as ‘activism’ allegations portray. Instead, they are faithful to the Constitution and the limited authority it delegated to government as the controlling precedent. But that requires overturning laws and interpretations inconsistent with the Constitution, to reinstate the rights and protections they have undermined. If such activism is to be rejected, much of the Constitution is already a dead letter, and it has become what James Madison called a mere ‘parchment barrier’ that fails to protect our rights in fact.
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Great analysis! Talk about hypocracy! When the court tries to correctly interpret the Constitution, instead of pulling rights from thin air, liberals scream about and “activist” court. That’s about as rich as it gets!
And what about the ruling on capital punishment for child rape. They justified that ruling on the grounds that the majority seemed to approve of it. Regardless of whether the ruling is right or wrong, the justification is absolutely terrible! The purpose of the Constitution is to limit the will of the majority to the rule of law, or to create a republic in other words. By forcing the Constitution to fit the mood of the majority, the Supreme Clowns destroy the republic and put in its place pure democracy. In effect, they have furthered their coup.
Or to quote from The Simpsons?:
“Hmmm. This punishment seems cruel . . .”
” . . . and unreasonable.”
But seriously how can the Constitution be intrepreted with a predictable outcome when the terms like ‘unreasonable’ and ‘except in cases in time of War or public danger’. Indeed the Bush Administration could justify its actions based on the 5th Amendment. Or who’s to say the 2nd Amendment gives an unadultered right to guns? It says ‘well-regulated militia’ not ‘non/self-regulated individuals’, ‘keep and bear’ not ‘carry and use’ and ‘arms’ not ‘guns’. Some wags have suggested even if the 2nd Amendment forbids any armament regulations (esp. guns) from the Federal Government, the State Governments have the right to regulate the crap out of it. And, besides, why just guns? Michael Moore have asked the odd gun nut if individual people should have the right to own weapons of mass destruction (presumably if they find one and afford it)? And yet, for some reason, they dicker and reply “well maybe not a nuke or something like that”. But I say why not? The Amendment says ‘arms’ not just ‘guns’ and owning a nuke or two (or three!) would be a heaps bigger detterent to Governments than a cache of hunting rifles.
oh well, if Michael Moore can make some schmuck stammer it must be a good argument. end of discussion. you win.
look up the definition or “regulate” and “prohibit” then report back. If you don’t understand the difference and how it relates, you don’t understand the argument.
also, its pretty clear you didn’t read the majority opinion. you don’t find it ignorant to rant when you haven’t a clue what you are ranting about?
Wouldn’t mind explaining the ‘truth’ then jc?
I think the semantics of your argument are flawed and only play into the hands of those wishing, in your words, to create “new rights”. The argument should be about what the government has the power to limit, restrict, control and prohibit. When you let the argument change from limiting government, to rights given by government, then you’ve already lost.
I presume your referring to me Keith. Yeah, if there are laws in certain States which have laws protecting peoples’ right to carry and use guns in public then it wouldn’t conflict with the 2nd Amendment. But gun laws which generally forbid people from carry and using guns don’t necessarily conflict with the Constitution either unless they part of a well-regulated Militia.
Quote from TLWP Sam: “I presume your referring to me Keith.”
No, I wasn’t. I was referring to the author of the original article.
Personally, I think the whole “well regulated militia” argument is a red herring. There’s no mention of militia or arms or weapons anywhere in the original articles of the Constitution, so the Federal government was not given any powers in this area. It’s not logical to think that in the Bill of Rights, a document created to ensure certain specific individual rights, that for some reason only the 2nd Amendment was written to expand Federal power, while every other amendment specifically limits it.
Keith! ‘…not logical to think that…’
You’re talking about governments! What has logic got to do with it?
TLWP Sam:
please read the court’s majority opinion. On the first page:
”
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
”
The second ammendment says:
“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.”
Please note that “the right of the people to keep and bear Arms shall not be INFRINGED.” This is a recognition means that it is a right that the people have, not one that the state has granted to them. This is extremely important (see Kieth’s comment), as it is not the job of the state (which was created by the people) to tell the people what their rights are. If that is the case, then the state can assign to the people any rights that it chooses. In other words, if the state assigns rights to the people then we have is not the rule of law, but a socialist or communist or fascist or monarchical government (which effectively differ only in the composition of the group of people who rule, that is, who get to dictate the actions and beliefs of everyone else.) As history has abundantly verified, this kind of situation leads to an erosion of both people’s freedoms and their standard of living.
Every person has the right to protect their life, liberty, and property, by the use of violent force if necessary. This right comes directly from the supposition that every person is equally important. Recognition of this right gives us a consistent way to interact with each other as individuals (i.e. you can do whatever you want just so long as you do not try to take or destroy someone else’s life, liberty, or property). Governments are instituted so that we don’t all have to use violence to protect ourselves, but can delegate that right to someone else (the police/militia/army, etc…). If we do not respect this individual right to life, liberty, and property (and the defense thereof), then we are practicing statism, in which some people are arbitrarily privileged and others are not. I sincerely hope that is not what you want.
But b, the U.S. Consitution pertains to the rights of the U.S. Federal Government. And besides by using the ’3 comma version’, the individual phrase is ‘the right of the people to keep and bear arms’. ‘Shall not be infringed’ is separate in that version hence you might conclude ‘shall not be infringed’ might as easily pertain to the militias and not ‘people’ if you use commas as total separators. But since when were commas used for connecting unrelated phrases? Last time I looked it could be either a semi-colon or definitely a full-stop. I thought wehn commas were used it impied that each phrase helps to qualify the meaning of the other phrases in the sentence.
Hence, the 2nd Amendment reads (to me):
* There are to be well-regulated militias.
* Belonging to the States to providing free security.
* These people of this milita have the right to keep and bear these armaments themselves (and not be obliged to have a central-State armoury).
* These peoples’ above rights won’t be infringed.
If the Federal and State Governments don’t want to pass any laws restricting firearms to people because it’s too much unpopular then so what? Australian had semi-similar lenient-ish gun laws until 1997 even though there’s no Aussie Constitution right.
in australia, we do not have a bill of rights, and the constitution essentially deals with the allocation of powers between the states and the federal government.
please note: gun ownership has never been given any special place by legislators. in the early colonial days, guns were widely owned by virtue of the lack of regulation, not of any enshrined rights. our nation was the product of a peaceful transition from a british penal colony, not born out of revolution like the us.
newson: “in australia, we do not have a bill of rights…”
Neither do we. Ours exists in name only, as does our entire Constitution. The US Constitution hasn’t been relevant since the civil war. If something is popular, the Supreme Court simply invents a “constitutional” justification for it. Or it simply justifies it under the interstate commerce clause. As you may have noticed in the latest Supremem Court decision on guns, a change of one vote could have gutted the second ammendment.
I don’t believe it matters how you read the amendment, its meaning is the same. Whether you interpret it to mean that the populace should be allowed to arm themselves in order to act as the militia in defense of the country, or you believe it means the people should be able to arm themselves in self-defense against a government-controlled militia, it is in either case a guard against standing armies. This is born out by the founders’ comments concerning the 2nd amendment up to and after the ratification of the Bill of Rights.
The mere fact that the federal government took it upon itself to replace the traditional militia with a standing army does not render the amendment obsolete, as many people believe. If anything, it should alarm the populace all the more that the government saw fit to usurp that which was reserved solely to the people by the Constitution in the first place.
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