Experts debate activism vs. judicial restraint on the Supreme Court

Brian Schneider Contributor
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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.”
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.”