Real vs. Perceived Judicial Activism
Monday, June 30th, 2008 By David OwsianyToday’s Columbus Dispatch ran E.J. Dionne’s screed about the conservative justices on the U.S. Supreme Court engaging in activism to reach the decision in the Heller case, striking down Washington D.C.’s handgun ban as unconstitutional. While he throws the term “activism” around, Dionne does not define the term in any meaningful way. Fortunately, the Federalist Society’s blog regarding the recent Supreme Court term includes an interesting discussion about “activism.” Ed Whelan, president of the Ethics and Public Policy Center, provides a useful definition: “the term ‘judicial activism’ succinctly captures the Court’s wrongful invasion of the realm of representative government and the injury that invasion inflicts on the powers of American citizens.”
Under this definition, the U.S. Supreme Court has engaged in liberal judicial activism on numerous occasions, including perhaps most prominently in Roe v. Wade. Regardless of how you feel about abortion as a policy matter, the Roe v. Wade majority went out of its way to invent a right to abortion that is nowhere to be found in the text of the Constitution and effectively struck down state laws regulating abortion across the country. Even liberal scholars agree that the reasoning of Roe is indefensible.
Similarly, the Ohio Supreme Court, throughout the 1990’s up until 2002, engaged in its own series of liberal activist decisions by striking down laws providing for school funding, and reform of the workers’ compensation and personal injury systems. The court ignored the fact that the Ohio Constitution largely leaves such policy matters to the General Assembly.
In the Heller case, however, a majority of the court, relied on the text of the provision - “[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 (emphasis added)”- to conclude that the Second Amendment protects an individual right to possess handguns. Even liberal journalist Eugene Robinson, in an opinion column also published in today’s Columbus Dispatch, concludes that the Heller decision was “probably right.” He writes:
I’d like to be able to thunder about the injustice committed by an activist, arch-conservative Supreme Court that seeks to return our jurisprudence to the 18th century. I will, almost certainly, about some future outrage. But this time, I can’t.
The big problem, for me, is the clarity of the Second Amendment’s guarantee of the “right of the people to keep and bear arms.” The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.
I’ve never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written — and give it such pride of place, the No. 2 position, right behind such bedrock freedoms as speech and religion. Even Sen. Barack Obama, a longtime advocate of gun control — but also a one-time professor of constitutional law — has said he believes the amendment confers an individual right to gun ownership.
And even if the Second Amendment were meant to refer to state militias, where did the Founders intend for the militias’ weapons to be stored? In the homes of the volunteers is my guess.
More broadly, I’ve always had trouble believing that a bunch of radicals who had just overthrown their British oppressors would tolerate any arrangement in which government had a monopoly on the instruments of deadly force. I don’t mean to sound like some kind of backwoods survivalist, but I think the revolutionaries who founded this nation believed in guns.”
Tags: Liberty, Washington DC
