The Heller decision has been disdained by many liberal activists as “conservative judicial activism” to sell their favorite meme: That conservatives are big hypocrites. Of course, this is little more than liberal language revisionism, inspired by linguist George Lakoff.

Judicial activism, as the left is defining it, would mean anytime a law passed by the States is overturned by Court, it is judicial activism. Really? What if a law were passed requiring criminal defendants to testify against themselves in court? Would it be judicial activism if the court overturned it? Of course not. There has been a place for judicial review in the process since 1802.

So when does judicial review become judicial activism? I think you can apply two basic standards to the question (and I’m sure some people will add others):

1) Does the decision stick to the issue at hand?

This is a critical point. From Heller, we learn simply that the total ban put in place by the District of Columbia is unconstitutional because the right to keep and bear arms is an individual right. The Court doesn’t give an exhaustive list of permissible and impermissible regulations. It does state that this ruling doesn’t mean the insane and felons have a right to keep and bear arms, nor is it addressing banning guns in certain “sensitive locations,” such as schools. Is a reauthorization on the assault weapons ban, gun registration, etc. constitutional under the court’s ruling? We won’t know and we shouldn’t. The court wasn’t considering those issues and shouldn’t take it upon themselves to decide them in advance. 

By contrast, an activist Montana Supreme Court ruling not only overturned a law regulating abortion, but advised the legislature not to send them specific other abortion regulations, or a law against assisted suicide, as they would be overturned as well. Pre-emptive judicial review is judicial activism, along with any ruling that goes beyond the scope of what has been argued and placed before the court.

2) Does the Court stick to the law and the Constitution?

In Heller, the court looked at some specific issues. What did the authors of the 2nd Amendment mean? This was the total of the decision. Liberals accuse the court of ignoring the first part of the 2nd Amendment, “A well regulated Militia, being necessary to the security of a free State,” yet the court didn’t ignore it.

The court actually spent many pages on the topic and they designated this part of the Amendment, a “prefatory clause” that explains the reason for the Amendment, but doesn’t limit the right contained in the Amendment’s operative clause granting the right to bear to arms.

This prefatory clause had the following reason for existence, the Court found: “The Anti-federalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army, or a select militia, to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”

In short, the point is that the right to keep and bear arms was a check on federal usurpation through an armed citizenry. The National Guard has nothing to do with the purpose of the Second Amendment.

Compare this sober reading of the facts to the bizarre ramblings of Justice Harry Blackmunn in the Roe v. Wade decision. Blackmunn’s argument begins by pointing out that American abortion laws had been approved in the past 110 years or so (by the same people who approved of the 14th Amendment) but that ancient pagan religions had no ban on it, that the Hippocratic Oath’s strict rules against abortion were the expression of a Pythagorean ethic, that the AMA had moved towards supporting abortion, along with American Public Health Association. What this has to do with interpreting Constitutional Amendments ratified in American in 1791 and 1868 is beyond the mere mortal, but not the activist judge.

The decision of a good judge reads like he’s interpreting the law, the decision of a bad one reads like he’s discovering it. When Supreme Court Justices concern themselves with laws in Europe, evolving social standards, or the general best policy for society, they’ve gone from interpreting the law to writing the law by fiat.

Adam Graham