Posted on 07/03/2008 9:16:22 AM PDT by jazusamo
Judicial activism. Legislating from the bench. Ideological decision-making by judges.
No sooner had the Supreme Court announced its decision in District of Columbia v. Heller than critics of the 5-4 majority decision and the court's sometimes-conservative majority cried all the above. In holding that the Second Amendment granted individuals the right to keep and bear arms, the court's conservatives -- those champions of judicial modesty and originalism -- were now engaging in judicial activism of their own. Yes, everybody does it, and conservatives are just hypocrites for pretending otherwise.
The Washington Post's E.J. Dionne Jr. was at the head of the pack, with a column that appeared in The Oregonian the day after the decision. Not only was "the judicial right" guilty of this, but the ruling also showed that its talk of deferring to local authorities and elected officials on political decisions and heeding the Constitution's precise words was poppycock.
It's hard to know what accounts for the "They're activists, too" line. Is it confusion or a conscious bid to attack the judicial right's greatest strength -- the solid, winning notion that judges should interpret, not make, law? It certainly cannot be an impartial reading of Justice Antonin Scalia's majority opinion or a full understanding of judicial restraint.
Dionne thinks it's telling -- telling of dishonesty -- that Scalia spent the first 54 pages of the majority opinion explaining away the first 13 words of the Second Amendment ("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"). Dionne seems to have spent more time counting than reading. Would he have found the decision more compelling if Scalia had spent 25, 12 or no pages? Or would he have criticized it for not exploring the contemporaneous meaning and relevance of those (13) prefatory words and the (14) words that follow? Somehow I doubt he would have found any number of pages satisfactory, because he disagrees with the result. But what those 54 pages contain is honest, old-fashioned constitutional analysis -- a look at the text and context of the Second Amendment before, during and after the Framing.
But doesn't the "judicial right" favor local decision-making? Shouldn't elected city officials be able to craft policies (handgun bans) to deal with gun violence in their crime-ridden community? Not if they trample on the Constitution in the process. They cannot abrogate the First Amendment's assembly protections or the Fourth's search-and-seizure safeguards because a community wants to deal with gang violence or any other local problem. A due regard for states and local governments in our federal system and a proper judicial deference to the legislative and executive branches on political questions doesn't allow elected officials or unelected judges to ignore the Bill of Rights, and nobody on Dionne's "judicial right" has ever said otherwise.
Dionne and the Heller minority think the Second Amendment recognizes a collective right tied to "a well-regulated Militia," not any individual's right to keep and bear arms. They cite the 1939 "precedent" of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce. They think this shows the majority's contempt for precedents anathema to conservatives.
Scalia argues, however, that Miller is no precedent at all for their view. He notes that Miller did not center on the fact that the two individuals were not bearing arms for military purposes. In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the "preservation or efficiency of a well regulated militia." As Scalia wrote for the majority, "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." Bingo.
Noting Scalia's 54 pages on the 27 words of the Second Amendment, the page-counting Dionne wrote last week. "Does that reflect an honest attempt to determine the 'original' intention of the framers?"
Actually, it does. Majestically so.
David Reinhard, associate editor, can be reached at 503-221-8152 or davidreinhard@news.oregonian.com
An unfortunate rendering of the headline and author.
Judge Reinhard is such a liberal weenie.
Except that the 2nd 'grants' nothing and the decision of SCOTUS said nothing of the kind.
L
I believe that's called "projection." (Or insanity.)
That thought didn’t cross my mind but you’re right.
I think you might have misread the article. David Reinhard is a conservative defending Scalia. It is the idiot E. J. Dionne who needs to remove his head from you-know-where.
That type of gun was used to devastating effect in the trenches of WW I, to force German soldiers to abandon those trenches, and subject themselves to even more withering firepower when outside the trenches.
If anything, this should cut the OTHER way. Our armed services, and our state militias, are allowed use of some very serious firepower. Citizen militias (i.e. able bodied males, etc.) should be allowed utterly unfettered access to the same weapons, in defense of tyranny.
It will be very telling if a case comes before the USSC with that set of facts as the argument as to why normal law-abiding people should be able to own full auto machine guns, for instance.
Ted Nugent summed it up nicely with this:
“SUPREME” COURT?
I CAN DO BETTER
by Ted Nugent
It is glaringly obvious that a critical lesson in history 101 is due in America, for it appears that not only does a lunatic fringe of anti-freedom Americans dismiss our founding father’s clear declaration of independence and succinct enumeration of our God given individual rights, but some Americans have the arrogance and audacity to question whether the right to self-defense is indeed one of these individual rights. Dear God in heaven, who could be this soulless? How about 4 out of the 5 so called “Supreme” justices of the land. God help us all.
Who could be so asinine as to believe that a free man has no such right to keep and bear arms for self-defense? What kind of low life scoundrel would know that courageous heroes of the US Military would volunteer over and over again to sacrifice and die for such self-evident truths, then turn around and spit on their graves by discounting the very freedoms that these brave men and women have died to protect?
Will these supreme legal scholars also affirm an individual right to chose the religion of our individual choice? Do they authorize our individual freedom of speech? Can you imagine? Them is fighting words my friends, and the line drawn in the sand has never been more outrageous.
Recent USA Today and Gallup polls showed a whopping 73% of good Americans know damn well that we are all created equal, and that we each have an individual right to protect our life, liberty and pursuit of happiness. What kind of jackass doesn’t know this? Allow the guitar player to translate for the soul-dead amongst us.
Keep-this means the gun is mine and you can’t have it. This does not mean I will register it with a government agency. The government works for “we the people”, not the other way around, regardless of what Hillary Clinton, Ted Kennedy, Hitler, Mao Tse Tung, Pol Pot, Saddam Hussein or Barack Hussein Obama or 4 supreme justices may try to tell you.
Bear-this means I’ve got it right here, on me, either in my grasp or damn near. This does not mean locked away in a safe, trigger-locked or stored at the local sporting club.
Shall not be infringed-this of course is another way of saying Don’t tread on me, for we will not be your willing crime victims, subjects, servants or slaves, so don’t even think about it.
When the evil King’s gangsters came to collect unfair taxes from Americans, we tossed their tea into the drink. When they came to disarm us into helplessness against their old world tyrannical ways, we met them at Concord Bridge and shot them dead till they quit treading on us. Any questions children? I didn’t think so.
Corrupt men cannot be trusted, hence the right of “the people” to chose the individual church of our choice, to speak our individual ideas and beliefs, to have individual freedom from unwarranted searches and seizures, and ultimately, to exercise our individual right to keep and bear arms so that evildoers cannot do unto us that which we would not do unto them. Get it? I would love to meet the human being who would argue these points with us. We would be looking at a fascist, and of course fascists, by all historical and empirical evidence, must be eliminated.
If you value the American Way, if you believe in the words and spirit of the US Constitution and our sacred Bill of Rights, if you know in your heart that you have the right, the duty, the spiritual obligation to protect yourself and your loved ones from evil in all of its forms, then you had best contact each and every one of your elected officials right away and let them know that you know exactly what the Second Amendment says and stands for. Remind them about the “shall not be infringed” clause.
It will not be the fault of the rotten anti-Americans out there who don’t believe in individual rights that rape and pillage our Constitution, it will be the fault of those who know better but failed to speak up. Now is the time to fortify America, and we better inform the Supreme Court just who truly is the “Supreme” Court of America-We the people. Individual people with individual, God given rights. The real America. Live free or die.
I believe CDY is referring to my adding Reinhard’s name to the title following JUDGES.
And what would be the consequences of that answer?
Harriet Miers could be brought out of retirement?
He brings up an excellent point that Lawrence Henry also found the close decision frightening.
I don’t think one could be confirmed unless he completely caved to the RATS wishes, which I doubt.
Ted, I do not know if you are a lurker here, but damnit, come back to the peoples democratik republik of michigan and run for governor....please
Well, perhaps he should be reminded that the BoR doesn't "grant" anything; it merely enumerates pre-existing, natural rights.
As with religion, speech & assembly (1A), we have the right to self-defense, whether the threat comes from criminals, insurrection, enemies or tyrannical government, regardless of any written words.
The greatest irony, which seems to be missed by most, is that the 2A practically guaranteed its own affirmation. Even though it was 5-4, I believe a dissenting justice would have joined the majority if Kennedy had wavered. No one wants to play that level of brinkmanship to see if the People would really be pushed to CWII.
Not to beat a dead horse here, but Reinhard understands that. He's on our side — 100% His attack is against people who don't understand that, such as E. J. Dionne. Reinhard even calls Scalia's defence of the literal interpretation of the 2nd Amendment "majestic."
To sum up, Reinhard, good; Dionne, bad.
You’re exactly right about Reinhard being on our side. I’ve posted many of his columns and some have seen The Oregonian listed and think he’s not on our side, he is a true conservative.
Just as the key civil rights decisions dealing with race were followed by massive civil rights demonstrations, perhaps we will see a massive demonstration by gun owners refusing to enable the registration of their arms.
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