Isn’t it interesting how easy it is for the Supreme Court Justices to perform a full 360º “about face” on their legal principles when it is convenient for them? This is obvious in the recent Supreme Court case of The District of Columbia v. Heller.
As you can imagine, the conservative justices are against the gun laws while the liberal justices are in favor of them. So where by the conservative justices are traditionally formalists and the liberal justices are more activists, in this case they’ll most likely flip flop to the other side when the Supreme Court finally makes its ruling in the case.
Think about it in terms of abortion. Liberal justices argue that the U.S. Constitution implicitly gives women the right (under the 14th Amendment) to choose whether to have an abortion (within reasonable limits). The liberal justices stretch the traditional notions of constitutional privacy rights to fit the times, so to speak.
On the other hand, conservative justices reject their liberal colleagues’s activism and argue that there is no such protection in the constitution and that we should be reluctant to establish new rights without a clear public mandate for doing so. Furthermore, the federal government has no role or competence in the matter, and each state should decide, through the traditional channels of representative democracy, how it wants to treat abortion. Conservative justices, especially Justice Scalia, often seeks refuge in the “democracy” argument — judges should not pass laws, but let the legislatures decide based upon the will of the people.
In this vain, conservative judges and politicians tends to be decentralists (pro-states’ rights) while liberal judges and politicians are more centralist (in favor of empowering the federal government with greater mandates).
So here we are in The District of Columbia v. Heller. The D.C. legislature has democratically passed a law banning citizens from possessing fire arms in their homes. A group of conservative citizens wants the Court to overturn the law as violating what they perceive to be their Second Amendment right to bear arms. The D.C. government is defending its “state right” to pass important legislation that affects its citizens and the law reflects the will of its citizens.
The Second Amendment reads,
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.
And personally, I think that it is very difficult to argue, from a plain meaning or a historical point of view, that the Second Amendment does in fact create a personal right to bear arms.
Nevertheless, there is in the popular imagination of Americans a bona fide feeling that this pseudo right to bear arms not only does exist in fact, but that it is also somehow necessary for protecting their freedom.
Ironically, that is the precisely the kind of legal argument that would be used by a judicial activist to defend the legality of abortion, same sex marriage, or other legislation that protects what the people perceive to be their rights, regardless of whether those rights were explicitly stipulated in the Constitution.
Thus in effect, the DC government and the politically liberal want the Supreme Court to uphold the “state’s right” to regulate itself and to reject the more activist interpretation that the Second Amendment creates a constitutional right for individual citizens to bear arms. On the other hand, the conservative politicians and petitioners in the case want to abandon their traditional states’ rights argument. They are essentially arguing that the states do not have competency on the matter. Furthermore, they argue that neither does the federal government.
Because a potential victory on this last point could theoretically limit all state and federal efforts to impose any gun restrictions on individual citizens, even the Solicitor General, in representation of the White House, has weighed in against this more extreme interpretation of the amendment.
What is so interesting is how predictable and convenient Supreme Court Justices are on both sides of the fence when they want to be. It would be very interesting, for example, to see Scalia or Thomas stick to there state rights / let the voters decide formalist view and point the Second Amendment towards its historical context. Personally, I would rule in favor of states rights. To be honest, it wouldn’t really change much and would preserve the status quo. Most of the country is full of citizens who want guns, and no legislature today in middle America is going to vote against guns in their neck of the woods. So why not live with the will of the people? Isn’t that the conservative justices point all along?