If the Heller case -- the one about the DC gun ban -- goes as expected tomorrow, we will hear cries from the left about "judicial activism."
You may not know what that phrase means, especially in that context, so I'll try to help out.
To a liberal who uses the phrase, a decision they dislike is "judicial activism." To a conservative, any decision which is not justified by the law is "judicial activism."
That means that a conservative can call something judicial activism even if he thinks it is the right thing, but that it was done in the wrong way (e.g., upholding a ban on medical marijuana via "interstate commerce"), while a liberal can call something judicial activism even if it follows the law completely, but they simply believe the law should be something else (e.g., the likely outcome of tomorrow's gun case).
I hope this helps you wade through the discussions tomorrow.
Cross-posted on <pudge/*>.
Posted by pudge at June 25, 2008 04:23 PM | Email ThisTo a liberal who uses the phrase, a decision they dislike is "judicial activism." To a conservative, a decision they dislike isis "judicial activism."
It's EXACTLY the same excuse on both sides. The only ones who disagree are the hard-bent conservatives and the hard-bent liberals (both of whom claim your basic point, with liberal and conservative switched).
Posted by: However on June 25, 2008 04:28 PMAnd I will vote for you!
Sorry.
Progressives love this, because to them, the Constitution is merely an inconvenience in the way of whatever the growing state wants. And they worship the state and the collective. They don't like guns, so a court ruling that effectively bans guns, even in light of the second amendment, would be fine with Progressives.
This is why we have the Constitution in the first place. If left up to the whims of man, there can never be an absolute reference. Written law is the bedrock on which we are secure.
Posted by: Jeff B. on June 25, 2008 06:06 PMToday's ruling that trashed the States' right to set criminal punishment gives me a bad feeling as to which way he will go.
Posted by: deadwood on June 25, 2008 06:16 PMTry again!
ajday: what ammo would you use for bears in that thing?
Posted by: pudge on June 25, 2008 06:49 PMAs for the 2nd Amendment, I think the real questions are not judicial activism but rather the meaning of an (indisputably) ungrammatical sentence and the acceptable limits of those rights (since I assume you don't dispute that some arms limits are allowable, e.g., the right to build a personal nuclear bomb). I can't imagine that I will criticize tomorrow's decision as judicial activism.
You challenged liberals to find a decision that they agreed with even though it was contrary to their "perspective". Heck, the ACLU does that all the time -- defending the Skokie Nazis and many horrible criminals, opposing campaign finance reform, etc. Perhaps you think the ACLU just hates America, but that's not true at all.
Posted by: Bruce on June 25, 2008 09:11 PMThe term "judicial activism" has been misused by both left and right, but the term does have meaning and can be used on occasion to criticize judges on both sides.
Sure. But what I said is still generally true. The legal left doesn't care about following the law, if they disagree with it. The legal right does. Again, generally.
As for the 2nd Amendment, I think the real questions are not judicial activism but rather the meaning of an (indisputably) ungrammatical sentence and the acceptable limits of those rights (since I assume you don't dispute that some arms limits are allowable, e.g., the right to build a personal nuclear bomb).
No, you're wrong. First, there is nothing ungrammatical about it. I don't know where you got that. It's perfectly legitimate grammar. "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." The text up to the first comma is a dependent clause. It's poor style, perhaps, but legitimate grammar. It's grammatically similar to saying, "as I am hungry, I am going to the grocery store."
Second, there is NO QUESTION WHATSOEVER what the PLAIN MEANING of the text is. None. The ONLY way to read "the right of the people to keep and bear arms shall not be infringed" as meaning something other than what it says is to read your own opinions into it.
I can't imagine that I will criticize tomorrow's decision as judicial activism.
Good. But much on the left will.
You challenged liberals to find a decision that they agreed with even though it was contrary to their "perspective". Heck, the ACLU does that all the time -- defending the Skokie Nazis and many horrible criminals, opposing campaign finance reform, etc. Perhaps you think the ACLU just hates America, but that's not true at all.
Yes, the ACLU, in terms of free speech cases, is one exception to the rule. They are less consistent on other issues.
But I don't see how opposing campaign finance reform fits here though: they only opposed it in a limited fashion, on two fronts: the parts actually related to literal speech (which is, of course, where the ACLU is at its strongest), and some of the financing reporting requirements as being overly burdensome, and potentially have the effect of silencing, speech. And I think many liberals would agree with the ACLU on both counts.
Even assuming the dependent clause is grammatical, it is ambiguous how "militia" and "people" relate. I don't really you and I can add much to the legal debate on this point, but we should both admit that this is a legitimate issue in interpreting the amendment.
Finally, would you also agree that there is some question about "shall not be infringed" means? Or do you think it means there shall be no restrictions whatsoever -- anyone (including a child or felon) can own and carry any weapon (including a nuclear bomb) anyplace (including a courthouse or police station) anytime anyhow?
Posted by: Bruce on June 25, 2008 10:29 PMThat comma was not in the original version, but yes, it's there, but commas do not generally change meaning, they clarify it. I do admit it is very clumsy and awkward, but not actually incorrect.
Even assuming the dependent clause is grammatical, it is ambiguous how "militia" and "people" relate.
It doesn't matter. The clear language simply sets up the militia as a reason WHY the right is granted to the people. But it is still granted to the people, no matter the reason why. And you cannot take it away just by attacking the reason.
Someone says, "I love this woman, so I marry her." If he stops loving her, does he suddenly become unmarried? Or if he finds out he never really loved her at all? No, of course not.
The right was granted. It can only be removed by amendment, not by attacking the clause about the militia.
I don't really you and I can add much to the legal debate on this point, but we should both admit that this is a legitimate issue in interpreting the amendment.
Not in whether the people have the right -- just like being married as above, the right is there, period -- but perhaps in what the nature of the right is.
"The people" is clear: it has exactly the same meaning as in the First Amendment, Fourth Amendment, and so on. And I do not believe there is anything to figure out about any relationship between "militia" and "people," as the right is there, period. However the relationship is between "militia" and "keep(ing) and bear(ing) arms" is an issue: does "militia" imply something about what "to keep and bear arms" means?
Finally, would you also agree that there is some question about "shall not be infringed" means? Or do you think it means there shall be no restrictions whatsoever -- anyone (including a child or felon) can own and carry any weapon (including a nuclear bomb) anyplace (including a courthouse or police station) anytime anyhow?
First, dispense with "child" and "felon." Children and felons do not have the same rights as free adults. That's silliness.
Second, no other right is completely unrestricted either. I cannot say whatever I wish in a court house, so if even the right to free speech is abridged, why not the right to bear arms?
Third, as to the extent of what constitutes arms, I am unsure on the issue, but I do not think it is relevant, in any way, to this case, or any other case that is currently working its way through the courts. If it does come up, I'll give it some more thought.
And come to think of it, the first and second points have nothing to do with this case either. The only way "shall not be infringed" is relevant here is whether banning handguns to the general public constitutes an infringment, and I think the clearly obvious answer is yes, no matter what "to keep and bear arms" could possibly mean. There's no logical way to interpret it while excluding handguns.
SCOTUS decided that the Right to Bear Arms is an individual right, not the right of the State. The State can still try to license firearms, which is a frightening prospect, but it will take either another amendment or appointment of more nitwits like Kennedy to the Court to overturn this ruling.
After the contemptible terrorist protection decision and the unbelievable intrusion into the right of states to determine punishment for crimes against individuals, this is a welcome breath of sanity.
Posted by: iconoclast on June 26, 2008 07:27 AM2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.
I haven't got through the whole thing yet...
Posted by: Andrew Brown on June 26, 2008 09:38 AM2. Like most rights, the Second Amendment right is not unlimited.
Correct.
It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose
Also correct. Just like the First Amendment is not a right to say anything whatsoever in any manner whatsoever and for whatever purposes. I am restricted from carrying a gun in courtroom, just like my right to free speech is restricted in a courtroom.
The Court’s opinion should not be taken to cast doubt on longstanding prohibitions ...
That is the only correct thing to say, EVEN IF you DISAGREE with those prohibitions: those prohibitions were not before the Court, and they should affirm them as continuing to stand, to remove any doubt. That doesn't imply, in any way, that any of those prohibitions cannot or should not be challenged, only that they were not under consideration and remain standing.
As this was the first major interpretation of the second amendment since inception, I would have really preferred that they interpret the Constitution, not uphold lesser law that clearly flies in the face of "shall not be infringed".
The things you said were correct are not backed up by the Constitution.
Posted by: Andrew Brown on June 26, 2008 11:05 AMThe things you wanted them to say were not up for review. It is wrong for the Court to overturn laws when a fair hearing to both sides is not considered. What you are asking for is not significantly different than if the Court just started making opinions without even having a case brought before them at all!
And no, what I said is correct absolutely is backed up by the Constitution, unless you think it is unconstitutional for a judge to cite someone for contempt of court for speaking out of order, which is silly. No right is unlimited. Many of our Founders commented on this.
Posted by: pudge on June 26, 2008 12:06 PMAlso see www.Glocktalk.com
Posted by: ajday on June 26, 2008 06:28 PMTo a liberal who uses the phrase, a decision they dislike is "judicial activism." To a conservative, a decision they dislike isis "judicial activism."
It's EXACTLY the same excuse on both sides. The only ones who disagree are the hard-bent conservatives and the hard-bent liberals (both of whom claim your basic point, with liberal and conservative switched).
Posted by However at June 25, 2008 04:28 PM
Well, no. Conservatives speak of original intent, and liberals speak of a 'living' constitution.
Conservatives and liberals use the same words, but mean different things.
An objective observer in your example would have to employ a comically shallow analysis.
Posted by: Das Baron Von Zippee on June 26, 2008 10:13 PM