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September 27, 2008

Heller and the Second Amendment stir up controversy

The AP has this new piece noting that some notable judicial conservatives are assailing Justice Scalia's activism in the Heller Second Amendment case.  Here are snippets from the article:

The judges, J. Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, take Scalia to task for engaging in the same sort of judicial activism he regularly disdains....

Wilkinson said elected officials are in a better position to determine gun laws than the courts. He compared the gun case to Roe v. Wade, the abortion rights decision that conservatives consider among the court's worst....

Posner, writing in The New Republic last month, said of Scalia's work in Heller: "The decision ... is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology."

Though I do not think too much of the label "judicial activist," it does seem to be a reasonable description of Justice Scalia's work in Heller.  But this is one reason why I like the Heller outcome.  As Damon Root rightly asserts in this essay at Reason, "the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights."

September 27, 2008 at 08:29 PM | Permalink


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Scalia a judicial activist? What is Posner smoking"

All judges take an oath to uphold the Constitution. They take no oath to uphold segregation, or lynching, or "states rights". The framers of the 13th, 14th and 15th amendments
enshrined the notion that rights and immunities were to be for all persons, not just rich white males and landed gentry. These framers enacted articles giving Congress the power to enact legislation to enforce these rights. It took a hundred years and the Warren Court to begin upholding the Constitution. The "states rights" crowd crow about judicial activists who uphold our civil rights. John McCain is running around the country doing the same blame game this very moment.

Scalia should get credit for standing up for the people on his Sixth Amendment jurisprudence as well as his positon in Heller on the Second Amendment.

When some nut starts preaching about activist judges I always ask them to identify which judge and which case, they are referring to. Usually its Roe v. Wade and often it's "busing" but they cannot think up a case name.

"Well are you for separate but equal schools?" "You did not like Brown v. Board of Education?"
"Yeah, I think they went too far."

"How about Mapp v. Ohio?"
"Well, we dont live in Ohio."

"What about the right of the cops to come through a neighborhood like out in Gerald, Missouri and break into each home declaring "We dont need no warrant, I'm a federal Marshal"?"
"No, thats not right."

"The housewife who got a misdemeanor conviction for slapping the husband. Does that disqualify her from serving in the National Guard or going deer hunting?"

I'll wager that if you gave a pop quiz to Palin on five major Supreme Court cases, there would be, an instant prayer in school, followed by three out of five wrong answers. How about these five: In Re Winship; Mapp v. Ohio; Milligen; Escobedo; Heller. Or should we be asking them about that rock band from the 80's called "The Keating Five"?

Posted by: mpb | Sep 28, 2008 1:01:12 PM

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