The Daily Caller

The Daily Caller
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Experts debate activism vs. judicial restraint on the Supreme Court

6:05 PM 07/07/2010
Brian Schneider

Dellinger, former Solicitor General Gregory Garr and Richard Epstein, law professor at the New York University Law School, also debated whether the Supreme Court, and particularly the conservative block led by Chief Justice John Roberts, has taken an activist approach in their decisions.

“Ultimately the responsibility of the court is to say what the law is and that’s what judges have to do,” said Garr. “With the McDonald opinion, I think in many cases you see the justices go into these polar camps and you would expect them to recognize it a little more and I think this term the judges did recognize it a little more.”

He continued, “For example, Justice [Samuel] Alito recognized in his opinion that there was some room for debate on the history of the 2nd Amendment and he called Justice Steven’s dissent eloquent and you’d expect to see a little more of that.”

McDonald v. Chicago has set the stage for future gun-rights cases across the country, but now the privileges or immunities clause of the 14th Amendment protects essential liberties, such as the right to bear arms.

“The only place the militia clause does not apply is to Washington D.C. and that is because there are no state interests on the other side,” Epstein explained. “So this is not an incorporation question because they just got the history backwards.”

Epstein continued, “It is absurd to say you’re going to use an incorporation argument with any clause if you have a clause designed to protect the state from federal overriding and then turn around and say it protects citizens from its own state.”

Epstein also said that framing the McDonald ruling as an attempt by the court to keep to the original intent of the framers of the Constitution is “an intellectual shamble.”

Tags: Chicago, District of Columbia v. Heller, Federal government, Heritage Foundation, Illinois, John G. Roberts, John Paul Stevens, John Roberts, Law and crime, McDonald v. Chicago, Politics, Samuel Alito, Second Amendment to the United States Constitution, Solicitor general, Supreme Court, United States, United States Constitution, Washington
  • 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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