One of the advantages of having attended law school is that when I read judicial opinions interpreting the Constitution I almost understand them. Not entirely, mind you, but enough at least to seem like I do in casual conversation. Of course, one of the disadvantages of a legal education is holding more debt than some small countries; I’m probably running about neck-and-neck with Lichtenstein. I should hang a digital debt counter, like the one in Times Square, in my living room.
That aside, even without a legal education, I have a reasonable amount of common sense and a pretty good nose for hypocrisy. And the Supreme Court’s ruling today in District of Columbia v. Heller; holding that the Second Amendment confers an individual right to bear arms, is practically dripping with it.
Justice Scalia, writing for a 5/4 majority, stated: "there seems to us no doubt" that this individual right does, in fact, exist. I guess that’s true if "no doubt" means that for 200-plus years such a right has never been held to exist. Its true if "no doubt" means a split among legal scholars as to whether the right conferred by the Second Amendment is an individual or collective right.
Mind you, I don’t disagree with the Court’s decision, which is probably an unpopular decision on dkos. However, stripped of the high-minded legal language, what’s left is the naked politicization of the Court. The conservative majority found a right that had never been Held by the Court to exist, to strike down a local law that had been in place for over thirty years; a law that was passed in order to deal with a uniquely urban, modern problem. A problem the Framers could have never contemplated. It is no coincidence the majority’s conclusion closely tracked the political viewpoints of the Republican presidents that appointed them.
It has been a longstanding Republican Party maxim that the role of the judiciary is to interpret the Constitution in the manner the Framers intended. Of course, the devil is always in the details, and discerning the original intent of the Framers as it existed in their late-eighteenth century agrarian world, and then applying that intent in interpreting modern laws is usually tricky at best. Therefore, most people hold a general belief in the doctrine of judicial restraint. Judicial restraint provides that judges should limit the exercise of their own power; and not strike down laws made by the elected legislature, unless those laws are obviously unconstitutional. The idea is that the legislature is best situated to solve uniquely local problems and should properly be given deference in dealing with those problems whenever possible.
The Republican Party has made quite a bit of hay railing against "judicial activism". The phrase "activist judges" has been a stump speech staple in political campaigns by republican candidates throughout my lifetime; a consistent applause line to rev up the base. In turn, republicans were supposed to appoint judges that reflected this core belief in judicial restraint.
However, a funny thing happened on the way to strict-constructionist intellectual purity. Turns out, judicial restraint doesn’t actually mean judicial restraint. What was good for the goose is decidedly less so for the gander. And the red-state blue-state politicization of the Supreme Court seems sadly complete.
I don’t know whether or not the handgun ban struck down yesterday was an effective law. I don’t live in the District of Columbia. However, I do know that the folks there were attempting to solve a critical problem; high crime and handgun violence that we, in Idaho, luckily don’t confront as often. But we have our own uniquely local problems. And, for the people that will hail this decision as a victory for Second Amendment rights, remember that when nine unelected individuals strike down a local law in Idaho, passed by its citizens to confront its own local problems.
Probably won’t seem like much of a milestone then.