Judicial Activism

By the Right:

WASHINGTON--In knocking down the District of Columbia's 32-year ban on handgun possession, the conservatives on the U.S. Supreme Court have shown again their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.

The court's five most conservative members have demonstrated that for all of Justice Antonin Scalia's talk about "originalism" as a coherent constitutional doctrine, the judicial right regularly succumbs to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.

...But these pragmatic judgments underestimate how radical this decision is in light of the operating precedents of the last 69 years. The United States and its gun owners have done perfectly well since 1939, when an earlier Supreme Court interpreted the Second Amendment as implying a collective right to bear arms, but not an individual right.

Here is what the Second Amendment 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."

Thursday's narrow majority spent the first 54 pages of its decision, written by Scalia, trying to show that even though the framers inserted 13 important words in front of the assertion of a right to bear arms, those words were essentially meaningless. Does that reflect an honest attempt to determine the "original" intention of the Constitution's framers?

In fact, it was the court's four more liberal justices who favored judicial modesty, deference to democratic decisions, empowerment of local officials and care in examining the Constitution's actual text and the history behind it.

It was telling that while Scalia argued the Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home"--note that the Second Amendment says nothing about "self-defense in the home"--it was Justice John Paul Stevens in dissent who called for judicial restraint. He asked his conservative colleagues where they were able to find an expansive and absolute right for gun possession.