McCain flip-flops on judicial activism
June 26th, 2008 at 04:17pm Pat Cunningham
 
John McCain SAID today that the Supreme Court was right to overturn a ban on handguns in Washington, D.C. — and I agree with him on that point (though not on every aspect of his statement).
But let’s face it: This ruling was a classic example of judicial activism, which conservatives like McCain are forever bemoaning.
Just last month, McCain had this to say:
The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it…
In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of “judicial activism.” But real activism in our country is democratic. Real activists seek to make their case democratically — to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don’t seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard.
Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered “settled law,” and everything else is fair game.
OK, well then let’s examine the background of the handgun case that was decided today.
The ordinance at issue was adopted by the duly elected representatives of the people of Washington, just as similar ordinances in other locales were adopted by elected officials.
The high court had no precedent on which to rely in making its decision. Never before in the more than 200 years since the Bill of Rights was adopted has the Supreme Court said that the rights afforded by the Second Amendment apply to individuals.
Never before have any of the tens of thousands of gun-control laws in this country been overturned by the Supreme Court on Second Amendment grounds.
The folks who wanted to overturn the Washington ordinance and others like it didn’t pursue the matter in the way that McCain prescribes. They didn’t persuade the people’s elected representatives to repeal the handgun ban. No, they did what McCain said is wrong to do: They got a court to act in their favor.
Again, I don’t disagree with the overall thrust of today’s ruling. But I wish the right-wingers who are always complaining about judicial activism would finally admit that their agreement with this ruling amounts to hypocrisy.
Judicial activism is what courts do — and are supposed to do — when ruling on the constitutionality of laws and ordinances. That’s what the high court did in overturning laws against abortion, and that’s what it did today.
We can disagree with a court’s reasoning in applying the Constitution in a particular case, but let’s not be so obtuse as to say such judicial activism is always wrong regardless of the particulars.
Entry Filed under: Uncategorized
19 Comments Add your own
1. Leatherneck | June 26th, 2008 at 8:43 pm
But the Supreme Court was not “making law” today. They were just reaffirming what most of us have known for years: that the 2nd amendment of the Bill of Rights is an individual right. Prior to this, lower federal courts have ruled as such.
Why are the other 9 amendments of the Bill of Rights INDIVIDUAL rights but the 2nd amendment somehow is not?
In this decision, the Supreme Court today was not “making” law. They were not ordering up some remedy. They were just reaffirming the obvious. That is not “activism”. That is constructivism. That is “original intent”.
I have always said that state and city governments should not have passed handgun bans in the first place because 1) they are not effective and 2) these ordinances go against the spirit of the 2nd Amendment. What’s changed is that now that second part is in writing and it’s the law of the land. And it is clear for all of those who for years chose to ignore it.
2. Menlo Bob | June 26th, 2008 at 8:57 pm
So is Sauce for or against judicial activism? According to the tenor of this post he just might be for it. If not, can we assume that he has a newfound respect for the standard bearer of the Grand Old Party?
3. Menlo Bob | June 27th, 2008 at 2:30 am
“Not a flinch. Not a flicker. Not a hint of shame. By the time he’s finished, Obama will have made the Clintons look scrupulous.”
Read the whole thing.
4. Mike Carroll | June 27th, 2008 at 7:32 am
Good post Leatherneck, you are spot on. Patrick is in favor of liberal judicial activism as practiced by the Breyer types on the court.
Good link Bob. I have been calling Obama the Big O but I think Fast Eddie is more appropriate.
5. Pat Cunningham | June 27th, 2008 at 8:01 am
All right, let me try to explain this again so that even you people can understand. The point of my post is that McCain and other conservatives who complain about judicial activism but also hail the gun decision are hypocrites. The gun decision, with which I agree for the most part, is an example of judicial activism. It overturned the stated will of elected officials and did so without relying on any Supreme Court precedents. Mike says I’m in favor of liberal judicial activism, and, in fact, I usually am. What Mike doesn’t say is that most conservatives are in favor of conservative judicial activism, but they pretend that all judicial activism is wrong, and they trot out those phony arguments about the democratic process and the evil of making law from the bench. When five or more Supreme Court justices deem a law or ordinance — or even the outcome of a referendum — to be violative of the Constitution, they are engaging in judicial activism. They are making law from the bench. Actually, they are undoing law from the bench. They are saying that laws banning handguns or banning abortions or banning flag-burning or barring black folks from public transportation are null and void. It happens all the time, guys. So don’t give me that crap about the wrongness of judicial activism.
6. Menlo Bob | June 27th, 2008 at 10:53 am
If you read the text of the decision Scalia lays out the rationale for this decision being the original intent of the framers. If you want to argue that the wording of the Bill of Rights needs to take second place behind court decisions then you will not be swayed by logic.
7. Pat Cunningham | June 27th, 2008 at 11:26 am
Bob: With respect to the laws of this country, the Bill of Rights and the rest of the Constitution mean what the Supreme Court says they mean — not what you or anybody else who isn’t wearing the black robes say they mean. Over time, the Supreme Court sometimes changes its interpretation of what the Constitution means, and then the laws have to reflect the new interpretation. It’s not a question of the words in the Constitution taking “second place behind the court decisions.” The words are just words until a duly-appointed authority interprets them. It’s simply a matter of the Constitution having no legal meaning that isn’t accorded it by the Supreme Court. Of course, I don’t expect you to be swayed by this logic (if I might borrow a phrase you used). You seem to think that the words in the Constitution are manifestly clear to one and all in every case and need no court to interpret them. If the meaning of the Second Amendment is so all-fired clear, why did it take more than 200 years for the Supreme Court to come up with the intepretation it arrived at yesterday?
8. Mike Carroll | June 27th, 2008 at 1:12 pm
“If the meaning of the Second Amendment is so all-fired clear, why did it take more than 200 years for the Supreme Court to come up with the intepretation it arrived at yesterday?”
The Supreme Court, any court for that matter, only rules when there is a issue before it. Since there was little debate in this country concerning the right to own and use firearms prior to the gun debates of recent vintage, there was no issue joined before the court for it to consider.
9. Pat Cunningham | June 27th, 2008 at 1:35 pm
And the reason for that, Mike, is that the anti-gun-control movement, which is of fairly recent vintage, was afraid to take any Second Amendment case as far as the Supreme Court. Even with the right-wing domination of the current court, only a bare majority of justices said Second Amendment protections apply to individuals. The NRA, for all its macho bluster, was afraid of the supremes for years.
10. Mike Carroll | June 27th, 2008 at 2:02 pm
I don’t have a dog in this fight as I’m not a gun owner and have no plans to be one (I don’t count the WWII relics inherited from my father-in-law) but it certainly frightens the hell out of me that a bare majority of the Supremes found that the 2nd amendment says what the Founders clearly intended it to say.
The NRA has good reason to fear 4, and sometimes 5, of the Justices as do all Americans unless, of course, you feel that this country should be run by 9 old people in black robes.
11. Pat Cunningham | June 27th, 2008 at 3:01 pm
Mike: I don’t know where you get the idea that the Founders were clear in their intentions in writing the Second Amendment. The preamble about a “well regulated militia” has given scholars pause for generations. Nor are the rights afforded by the amendment all that clear. Even Scalia said the individual’s right to own guns is not absolute. The amendment says we have a right to “keep and bear arms,” but what arms? Bazookas? Grenades? Surface-to-air missiles? Machine-guns? Can I put land mines in my backyard to guard against trespassers? If I have a right to bear arms, can I bring a gun to a speech by the president of the United States? None of this stuff is as simple as the NRA crowd pretends, else the whole controversy would have been settled years ago.
12. Mike Carroll | June 27th, 2008 at 4:13 pm
Quite simple actually. Remember that the states needed to ratify the Constitution and no document that limited the right of an individual to own a firearm in those times would have been even considered. What you say scholars have struggled with today was obvious to those that lived in the time.
13. Leatherneck | June 27th, 2008 at 8:33 pm
Machine guns have been illegal since 1935. Nobody serious has suggested legalizing them or missiles, etc. We are talking about handguns, shotguns and rifles where you have to squeeze the trigger each time to fire a round. There were no machine guns, land mines, and missiles when the Bill of (Individual) Rights was written. Still, the anti-gun crowd use up this tired old argument in an attempt to make NRA members look silly, like illogical absolutists or extremists. Why? Because anti-gunners cannot win the argument on serious legal merits.
So now that we have the liberal “bazooka defense” out the way, let’s talk about “reasonable regulations”: City handgun bans are a dismal failure. In spite of the gun bans, gun crimes are up. All local regulations have done is disarm law abiding citizens and victims. You see, criminals and thugs don’t follow the law. That’s why they are criminals.
PRIOR TO THIS, there have been a number of laws and federal court cases that have established, that the militia = the citizenry and that this right is an individual right. This ruling is not something out of the blue for the first time in 200 years. Go google it and read about it and stop lying just because you don’t like the Supreme Court’s decision.
14. Mr. Baseball | June 27th, 2008 at 10:15 pm
I’m not sure where some of these opinions are coming from, but serious legal scholars on both sides of this issue have long maintained that the Second Amendment is ambiguous as is much of the Constitution. I’d recommend reading the book “Founding Brothers” to get a good understanding of how divided our founders really were and how they settled for intentionally ambigious language to appease both sides and to intentionally let later generations figure it all out. I’d also recommend the book “The Nine” to see how the Supreme Court acutally works. There is indeed judicial and political activism from both the so-called conservatives and liberals on the court. Our nation’s laws have evolved over time and that’s how the framers of the constitution intended it.
15. Pat Cunningham | June 27th, 2008 at 11:32 pm
Leatherbrain: You make no sense at all. 1) I didn’t say I don’t like the court’s decision. I said exactly the opposite. Can’t you understand what you read? 2) There have been no prior Supreme Court decisions according Second Amendment rights to individuals. The Supreme Court has never before overturned gun control laws on Second Amendment grounds. Read my post again, very slowly, and maybe you’ll learn something.
16. Pat Cunningham | June 28th, 2008 at 8:13 am
Mr. Baseball: Thanks for mentioning Joseph Ellis’ book “Founding Brothers.” I’ve read it twice, and it’s one of my faves. I like everything Ellis does. He’s our premier historian of the revolutionary period. (He was caught once padding his resume, but nobody’s ever questioned the integrity of his scholarship.)
17. Mike Carroll | June 28th, 2008 at 11:18 am
Mr. Baseball-I would suggest The Federalist Papers.
18. Leatherneck | June 28th, 2008 at 10:04 pm
There are 3 levels of federal courts: 1) federal district court, which is the most local level of federal court or the “trial court”; 2) the US court of appeals, which is the next step up, with appellate jurisdiction; and the 3) Supreme Court which is the highest court in the land.
The rulings regarding the 2nd Amendment prior to this were cases from the federal district courts and the US court of appeals. (not the Supreme Court) In these cases, it was ruled that it was an individual right and that militia= the citizenry at large. But yes, in that sense, the Supreme Court ruling is landmark because it takes precedence over the lower levels of courts. I read about these lower court cases about 20 years ago in educational pamphlets the NRA published.
I am glad that you agree with the court’s decision. I am worried because in some media quarters, the response was too “wishy-washy”. It’s just the tone and tenor of editorials I read, maybe I’m wrong. And do you know what the Trib did? Instead of applauding the decision and calling for the repeal of the ineffective handgun ban in Chicago, they did just the opposite and called for the repeal of the 2nd Amendment!! They called it an “anachronism”. So much for responsible journalism.
19. jake | November 15th, 2008 at 9:03 pm
Leatherneck: An “anachronism”, said the Trib. Yes, we no longer need the means of self-defense, we have laws to protect us and police to enforce those laws. Pay no attention to those climbing crime rates. Never mind if the police get to where they are needed just a little bit late, the Trib is building a safer, better society and we will have to sacrifice ourselves for the common good.
The only “anachonism” in the bill of rights is the freedom of the press. Technology is rapidly making the printing press a museum piece. The principle may endure as a right, but the newspaper itself won’t be around much longer.
Leave a Comment
Some HTML allowed:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <code> <em> <i> <strike> <strong>
Trackback this post | Subscribe to the comments via RSS Feed