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Experts debate activism vs. judicial restraint on the Supreme Court

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Brian Schneider
Contributor

What started out Wednesday as a discussion among experts about the Supreme Court’s recent rulings quickly turned into a debate about whether the current justices on the high court displayed activist tendencies or practiced judicial restraint.

In McDonald v. Chicago, the high court ruled 5-4 last month to overturn Chicago’s handgun ban. This decision followed a similar ruling in 2008 in Heller v. District of Columbia, where the Supreme Court, on another 5-4 vote, struck down a handgun ban in the nation’s capital.

“Is the true conservative vision one of individual liberty or is it of states’ rights, when they’re in conflict with one another?” Walter Dellinger, former acting solicitor general during the Clinton administration, asked rhetorically during an event at the conservative Heritage Foundation. “I think there is something of a mixed role between activism and restraint on this court [and you see this with] the McDonald decision and the 2nd Amendment. It is a cautious opinion in terms of result in that the court, as it did in Heller, leaves quite open what kinds of regulations may be consistent with the right to keep and bear arms.”

Dellinger added that in his dissenting opinion, Justice John Paul Stevens, who officially retired from the high court at the end of last month, argued that the liberty clauses in the 5th and 14th Amendments do protect the right to self-defense and thus the right to possess a handgun in the home. Still, Dellinger recounted, Stevens questioned whether the 2nd Amendment could be applied by the federal government against local governments?

“The home has long been seen as a center of insulation from the government and much of our constitutional tradition draws boundaries around the home,” Dellinger argued. “The 2nd Amendment is almost a trick as an amendment that doesn’t actually address the states at all and the fact that the framers protected some kinds of gun rights is very relevant among the 14th Amendment, but I’ve always believed that that amendment stands on its own. But this is a very great time of constitutional conflict.”

  • redstater

    I can’t believe there are still ‘experts’ who can’t figure out what the 2nd Amendment means. ‘Experts’ are people who write books 4 inches thick to explain why a sentence 6 inches long doesn’t really mean what it says.

    I don’t believe the founders intended the constitution to be deciphered by ‘experts’, as if it were some enigma to be solved. It says what it says in fairly clear language. The founders themselves expressed their intent, lest there be any doubt:

    “No freeman shall ever be debarred the use of arms.”
    —Thomas Jefferson: Draft Virginia Constitution, 1776.

    “[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.”
    —James Madison,The Federalist Papers, No. 46.

    “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”
    George Mason
    Co-author of the Second Amendment
    during Virginia’s Convention to Ratify the Constitution, 1788

    “The people are not to be disarmed of their weapons. They are left in full posession of them.”
    Zachariah Johnson
    Elliot’s Debates, vol. 3 “The Debates in the Several State Conventions on the Adoption of the Federal Constitution.”

    “And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; …”
    Samuel Adams
    quoted in the Philadelphia Independent Gazetteer, August 20, 1789, “Propositions submitted to the Convention of this State”

    “Firearms stand next in importance to the constitution itself. They are the American people’s liberty teeth and keystone under independence … ”
    George Washington
    First President of the United States

    “The great object is that every man be armed.” and “Everyone who is able may have a gun.”
    Patrick Henry
    American Patriot

    “Those who hammer their guns into plowshares will plow for those who do not.”
    Thomas Jefferson
    Third President of the United States

    “What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
    Thomas Jefferson
    to James Madison

    ************************

    • didacticrogue

      Hear, hear!

  • joltinjoe

    I come to this issue from 25 years in law enforcement, nearly 3 years as an assistant prosecuting attorney, nearly 8 years as a bill drafter for a state legislature who drafted the law that made a complete conceptual change to the concealled carry law in that state. The result of that experience convinces me beyond any doubt that the 2nd amendment means what it says: that “the right to keep ane bear arms shall not be infringed”. The Supreme Court of the United States agrees with me. Whether the use of the “incorporation” concept of the “due process” clause of the 14th amendment or the “priviliges and immunities” clause is used to grant this right to citizens of the United States is somewhat academic. My preference is to use the latter which is what Justice Thomas did. The reason is that it is more principled. The fear of upsetting other areas of “settled law” is not a sufficient reason to be less principled. The “due process clause” always leaves one question open; just what process is due? The clearer the decision is the better. Now you know!

  • chinook101

    I am the people and I have a god given right to keep and bear arms. There is no question here. There is no debate. As the saying goes,” If guns are outlawed, only outlaws will have guns.” Nuf said!

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