Friday, November 30, 2007

More "Judicial Restraint" Nonsense

Bluntly speaking, "judicial restraint", whether proferred by Oliver Wendell Holmes, Jr., Felix Frankfurter or Antonin Scalia, is just another nice way of describing avoiding constitutional issues on the basis of "the will of the people" and other such nonsense.

Therefore, it is probably no surprise to hear this from the President of the Brady Campaign to Prevent Gun Violence (H/T: Cato-at-Liberty) :

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws. The District's police strongly favor them as well.

The District's decision has been attacked over and over again by outside interests more concerned with pleasing the gun lobby than respecting the will of the people. Some in Congress have tried multiple times to overrule the District's preference for strict gun regulations, but have failed each time.

In 2003, however, a wealthy benefactor decided to fund a challenge in federal court to the District's strong gun laws. A fellow of the libertarian Cato Institute, his argument lost soundly at trial.

On appeal to the federal circuit court, however, two judges handed him a "victory." They decided to ignore almost 70 years of Supreme Court precedent, over 200 years of American history, and even the text of the Constitution itself. In so doing, they imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst.

For more than 200 years, communities across America have used their right to vote for gun laws they believe are needed to protect their safety. Yet the federal appeals court decided to limit that authority with a misguided view of the Constitution. That was wrong.

The people of this country know that sensible gun laws save lives. For example, Hawaiians banned assault weapons and required a permit to purchase handguns. Californians banned assault weapons and required universal background checks for every gun purchase. Coloradans closed the gun-show loophole. Illinois residents closed the gun-show loophole and required child safety locks sold with each handgun. Michiganders require lost or stolen guns to be reported to the police. New Yorkers banned assault weapons and closed the gun-show loophole. Virginians limited handgun purchases to one a month.

All across America, the power of the people to pass laws like these was put at risk by the reasoning in the lower-court decision.


Judicial activism at its worst? That is a pretty bold claim and, given that conservatives of late, like liberals in the 1930's, have made judge-bashing a political pasttime, it is one I can not in good conscience take seriously. Moreso, there is an element of irony to the claim. When the claim of judicial activism has been leveled against the "will of the people", whether responding to decisions in Lawrence v Texas or Lochner v New York*, the "judges making policy from the bench" were, as the story goes, protecting rights that were not specifically enumerated in the Constitution (i.e. the New Deal jurisprude mindset).

Here, Mr. Helmke, takes the judges to task for ignoring the will of the people for an enumerated right, while hedging his bet by calling the Court's position on the Second Amendment "misguided". While one can get away with this given the length limits in op-ed pieces, I will at least suggest that whether the Court was misguided is hardly a settled matter. While I know my own opinion will not settle things, if individuals have inviolable natural rights, then one must have an inviolable right to defend them. This is not to suggest an absolute Second Amendment right beyond the reach of any legislation. Under current doctrine, I would argue that, as both an enumerated and an individual right, any sort of legislation that potentially conflicts with the Second Amendment should receive the highest level of scrutiny possible ("strict scrutiny" in legalese).

It also odd that one can find "deep respect with judicial precedent" and "for a close reading of the Constitution" at the same time. Those who have at least a passing knowledge of judicial precedent, especially for those who find the concept of the "will of the people", i.e. legislative supremacy, far more dangerous that judicial supremacy could ever be, know that "judicial precedent" is a wasteland of legislative supremacy that purports to be couched in the "legitimacy" of judicial restraint. Those who understand legitimacy know better.

For what it's worth, I fail to see "a right to vote for gun laws they believe are needed to protect their safety" in the Constitution (yes it looks silly but that is the point). Passing laws is not a right, it is a power, and one of unlimited scope. While public safety is a valid use of the state police power, the fact that the majority "believes" it to be necessary does not mean we are to automatically assume it so, despite what champions of unbridled majoritarianism would have us believe.

This is unsettling. Let's hope the Supreme Court comes to the correct decision.

1 comment:

KipEsquire said...

And when the District comes to seize their "blighted" homes via private-for-private eminent domain, they can rejoice in how "judicially restrianed" the Court was in Berman v. Parker and then again in Kelo v. New London.