June 25, 2008
Judicial Activism

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 This
Comments
1. Almost right. An objective observer would modify the statement to be correct:

To 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 PM
2. However: no, you are wrong. That's the point.

Posted by: pudge on June 25, 2008 04:39 PM
3. Actually I think you both miss the issue. Judicial activism occurs when the court imposes his or her own personal opinion about what the law should be rather than apply the law or the Constitution as it was meant to be applied by those who wrote it. One of the criteria we should use in choosing our judges is that they clearly understand the difference between serving as judge and serving as legislator. I do. Vote Bond for Justice.

Posted by: Michael J. Bond on June 25, 2008 05:03 PM
4. Michael Bond: what you said is in line with what I said. I was contrasting the conservative view ("follow the law", as you say) with the liberal view ("do what I want, regardless of the law").

And I will vote for you!

Posted by: pudge on June 25, 2008 05:08 PM
5. I, for one, am perfectly happy accepting every 'strict reading' that happens to end up with a non-Conservative result.

Posted by: Al on June 25, 2008 05:12 PM
6. Al: in terms of judicial philosophy, there is really no such things as a "strict reading" -- where that means, as the textualists claim, applying the law as it is written, according to what those words meant at the time -- that is "non-conservative."

Sorry.

Posted by: pudge on June 25, 2008 05:19 PM
7. The way I see Judicial Activism, it's judges effectively legislating from the bench. Because if the judge does not agree with the law, and they don't follow the law, they are effectively making their own new law to supplant whatever it is they are ruling upon.

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 PM
8. Will Justice Kennedy again side with the the the liberal gang of four, or will he follow the Constitution on guns?

Today'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 PM
9. I have my 9th gun on order a Glock 38. This is a third pistol and may see some duty as bear protection. I also have 3 rifles and 3 shotguns (and live in Seattle!?).

Posted by: ajday on June 25, 2008 06:32 PM
10. @2 -- proves my point.

Posted by: However on June 25, 2008 06:43 PM
11. However: no, in fact, it doesn't. Me disagreeing with you does not prove your point. Your point would be proved only by showing that I am in against a decision that followed the law, or that liberals were in favor of a decision that followed the law but disagreed with their perspective.

Try again!

ajday: what ammo would you use for bears in that thing?

Posted by: pudge on June 25, 2008 06:49 PM
12. Will Justice Kennedy's psychiatrist please inform us which schizophrenic Jurist will be showing up in tomorrow's opinion? The one that upholds the Constitution or the one that would prefers to legislate from the bench....

Posted by: Rick D. on June 25, 2008 07:20 PM
13. I haven't been able to take my new Springfield XD40 Tactical for a drive yet. I may be in celebration on Friday.

Posted by: Mike H on June 25, 2008 08:59 PM
14. Pudge, if you really wanted to "help" anyone discuss a Supreme Court ruling, you would be more objective. The 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.

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). 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 PM
15. When the ACLU defends Nazis and criminals they are generally wrong too.

Posted by: Don Ward on June 25, 2008 09:22 PM
16. Bruce:

The 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.

Posted by: pudge on June 25, 2008 10:02 PM
17. I will simply say, the Supreme Court decision tommorrow, will determine the Nov election :)

Posted by: GS on June 25, 2008 10:03 PM
18. Pudge, the 2nd amendment is ungrammatical because there is an additional comma after the word "militia". That's what I thought, anyway. I just checked and actually, that comma appeared in the copy passed by the House and Senate, but not the copies raftified by the states. So perhaps I shouldn't read too much into that.

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 PM
19. Bruce:

That 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.

Posted by: pudge on June 25, 2008 11:05 PM
20. Woo-Hoo!!

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 AM
21. Pudge,
I may disagree with you in other places, but on your interpretations presented here, I believe you have hit the "proverbial" nail on the head. Good work.

Posted by: tc on June 26, 2008 07:48 AM
22. The Glock 38 shoots a new type of .45 bullet - a .45 GAP. I firmly believe in the right to arm bears.

Posted by: ajday on June 26, 2008 08:08 AM
23. ajday, no, I know it is a .45 GAP. I mean, what kind of ammo, not what caliber, for bears. FMJ? Some specialty thing?

Posted by: pudge on June 26, 2008 08:47 AM
24. I hope you decide to call today's decision judicial activism then, since even the majority decided to ignore the words "shall not be infringed".

Posted by: Andrew Brown on June 26, 2008 09:11 AM
25. Andrew Brown: I have not read the decision. Please explain.

Posted by: pudge on June 26, 2008 09:20 AM
26. This is part of what I'm referring to--

2. 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 AM
27. Andrew:

2. 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.

Posted by: pudge on June 26, 2008 09:59 AM
28. pudge,

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 AM
29. Andrew:

The 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 PM
30. What kind of ammo? I don't even have the gun yet. I special ordered it like 7 or 8 days ago at Adventure Sports in Lynnwood. I don't think they have it in yet.

Also see www.Glocktalk.com

Posted by: ajday on June 26, 2008 06:28 PM
31. Since you talked about bears, just thought maybe you'd decided on ammo. No worries!

Posted by: pudge on June 26, 2008 06:33 PM
32. 1. Almost right. An objective observer would modify the statement to be correct:

To 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
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