Thursday, June 26, 2008

On Judicial Activism in the US Supreme Court

Well the pendulum has swung a complete cycle. We are again beset by an activist Supreme Court, but now, they come with a new flavor.

Judicial activism is something that the right wing used as a mallet to beat over the heads of liberal judges when they found interpretations of the law that favored progressivism. Brown v. Board of Education is one decision that comes off the top of my head, the SCOTUS decision that desegregated public schools in 1953. At the time a decision that “separate but equal” violates the equal protection clause of the 14th Amendment to the US Constitution was viewed as a radical departure from how courts should rule on cases. They said it violated the separation of powers of the 3 branches of government, and that the Judicial Branch was claiming a legislative power that they did not actually have.

But now, over a half century later, we find that the worm has truly turned.

This case is a long time coming. I wrote a little about it over a year ago when it was being ruled on by the U.S. Court of Appeals for the District of Columbia Circuit. The District of Columbia handgun law was overturned there by a 2 to 1 majority. Today, by a 5-4 split decision, the Supreme Court verified the lower court’s decision.

But it did more.

Today we see that the 2nd Amendment to the Constitution has been rewritten by these 5 activist justices. No longer is the 2nd Amendment about the military and a militia. Now it’s about individual rights.

To review. Here is the text of the 2nd 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”
Now back in March, when I commented on the Appeals Court decision, I marveled at how the Court went on a voyage through English grammar and punctuation in order to conclude that “the people” do not signify members of “the militia”. They relied on a grammatical argument to conclude that “the people” are individuals, and then went on to define this right as an individual right.

The majority on the Supreme Court didn’t spend time bandying grammatical interpretations about, they went right for the jugular and said that an individual’s right to own a firearm is supported by “the historical narrative” of practices and events both before and after the 2nd Amendment was written.

So it appears that the Supreme Court majority has exchanged a lesson in grammar, which in my opinion had flaws, with a lesson in US history.

Everyone in America owned guns in the late 18th century, so it must be a constitutional right.

Justice Stevens dissenting from the bench, said that this decision is just what it appears to be: legislation. From the Washington Post:

“He spoke dismissively of the court's ‘newly discovered right’ and said decisions about gun control should be made by legislatures.”

He also said something about which I have been raging (to myself) all day.
"Justice John Paul Stevens spoke from the bench to denounce the decision, which he said violated the court's precedent that the Second Amendment refers to a right to bear arms only for military purposes."
All day I have listened to CNN and MSNBC reporters prattle on about how this is the first time the Supreme Court has ruled on this decision. It’s not. As Justice Stevens said, there is precedent. In 1939, in United States v. Miller, the Supreme Court found that a prohibition of having a sawed-off shotgun was not in violation of the 2nd Amendment because a sawed-off shotgun does not lend itself to “some reasonable relationship to the preservation or efficiency of a well regulated militia”.

They had it right back in 1939. They got it all wrong in 2008.

That’s progress for you.

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