Are Judges Activists Only When They Overturn Laws McCain Likes?

Jacob Sullum | May 16, 2008

In a speech to the National Rifle Association today, John McCain argues (accurately) that he's a much stronger defender of the Second Amendment than Barack Obama. A few excerpts:

For more than two decades, I've opposed efforts to ban guns, ban ammunition, ban magazines, and dismiss gun owners as some kind of fringe group unwelcome in "modern" America. The Second Amendment isn't some archaic custom that matters only to rural Americans, who find solace in firearms out of frustration with their economic circumstances. The Second Amendment is unique in the world. It guarantees an individual right to keep and bear arms. To argue anything else is to reject the clear meaning of our Founding Fathers....

But the clear meaning of the Second Amendment has not stopped those who want to punish firearms owners—and those who make and sell firearms—for the actions of criminals. It seems like every time there is a particularly violent crime, the anti-gun activists demand yet another restriction on the Second Amendment. I opposed the ban on so-called "assault weapons," which was first proposed after a California schoolyard shooting. It makes no sense to ban a class of firearms based on cosmetic features. I have opposed waiting periods for gun purchases.

I have opposed efforts to cripple our firearms manufacturers by making them liable for the acts of violent criminals....

Senator Obama hopes he can get away with having it both ways. He says he believes that the Second Amendment confers an individual right to bear arms. But when he had a chance to weigh in on the most important Second Amendment case before the U.S. Supreme Court in decades, District of Columbia v. Heller, Senator Obama dodged the question by claiming, "I don't like taking a stand on pending cases." He refused to sign the amicus brief signed by a bipartisan group of 55 Senators arguing that the Supreme Court should overturn the DC gun ban in the Heller case. When he was running for the State Senate in Illinois, his campaign filled out a questionnaire asking whether he supported legislation to ban the manufacture, sale and possession of handguns with a simple, "Yes."

I think McCain (who also notes some of his differences with the NRA, including his support for background checks at gun shows and for campaign finance regulations that muzzle groups like the NRA close to elections) is actually too easy on Obama here. As I've noted, Obama has cited the D.C. ban as an example of gun control that's consistent with the Constitution, which makes you wonder what it would take to violate the Second Amendment as he understands it.

McCain adds that, even if the Supreme Court overturns the D.C. law, federal judges will continue to play an important role in determining which firearm restrictions pass constitutional muster. Hence supporters of the right to keep and bear arms will still need to worry about judicial appointments. That much is certainly true, but McCain runs into trouble when he tries to explain why his criteria for picking judges are superior to Obama's:

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the Framers knew these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power and efforts to encroach on individual rights would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution.

In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another's excesses, seeking to keep each other within bounds. The framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America—voters in both parties whose wishes and convictions are so often disregarded by unelected judges—are entitled to know what those differences are.

Federal courts are charged with applying the Constitution and laws of our country to each case at hand. But a court is hardly competent to check the abuses of other branches of government if it cannot control its own judicial activism.

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. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned.

McCain wants his audience to believe he will appoint judges who will strike down gun control laws that conflict with the Second Amendment. At the same time, he condemns "activist judges" who override the will of the people, as expressed by their legislative representatives, in the process "shrugging off generations of legal wisdom and precedent." But that is exactly what the Supreme Court will be doing if it declares the D.C. gun ban unconstitutional. Furthermore, that is what it ought to do, because the legal wisdom that long prevailed in this area—the idea that the Second Amendment protects no individual rights that a legislature need respect—was wrong. In this case, as in many others involving "constitutional restraint[s] on power," the Court can be true to its obligations only if it is "activist," rejecting the considered opinion of elected legislators and thereby checking "efforts to encroach on individual rights."

Jeff Jacoby made a similar point about the inadequacy of McCain's judicial philosophy in a recent Boston Globe column. A few years ago in reason, Damon Root made the libertarian case for judicial activism. 

Comments

Neil|5.16.08 @ 5:08PM|#

If we allow activist judges to destroy the fabric of our society, the terrorists will win.

Mike|5.16.08 @ 5:13PM|#

Terrorists win? They already have, they're in office...

Neil|5.16.08 @ 5:15PM|#

The Neil posting above me is not me, but nevertheless I agree with his sentiment.

Episiarch|5.16.08 @ 5:15PM|#

If we allow Mothra to destroy Godzilla, then Rodan will win.

Ska|5.16.08 @ 5:18PM|#

The title of this thread seems to fit the standard McCain philosophy re: things he doesn't like.

brian|5.16.08 @ 5:22PM|#

So Neil, you oppose the activist judges who overturned the DC gun ban?

On a different note, isn't the Supreme Court dictating what laws a sovereign governing entity can and cannot pass incredibly anti-federalism?

Neil|5.16.08 @ 5:25PM|#

So Neil, you oppose the activist judges who overturned the DC gun ban?

No, in that case the Supreme Court was upholding the federal principle.

Bohica|5.16.08 @ 5:31PM|#

The Neil posting above me is not me

Will the real Neil please stand [shut] up?

Neil|5.16.08 @ 5:35PM|#

This ad is the best anti-Obama ad I've ever seen. It could possibly decide the election.

Watch and be informed (And weep if your a Democrat fanboy).

Elemenope|5.16.08 @ 5:56PM|#

Well, McCain finally trotted out the *one* issue on which he is more pro-liberty than the opposition.

Obama deserves to be criticized, and hard, for his gun position. However, the notion that a.) McCain has respect for federal principles and/or b.) would be able to identify strict jurisprudence if it bit him on the nose is laughable.

|5.16.08 @ 6:09PM|#

Back to the topic of the original article: If a judge strikes down a law because it's unconstitutional based on the framers' original intent, is the judge being "activist" or "strict constructionist"?

If you say that such a judge is always being "activist" and "activism" is a bad thing, then you're effectively arguing that the constitution should be legally irrelevant. IMHO that's a rather silly argument, and I'm rather disappointed to see Jacob making it.

As I see it, "activist" judges are ones who overturn or rewrite legislation based on something *other* than original intent.

|5.16.08 @ 6:14PM|#

If the courts aren't allowed to tell the legislatures - and by extension, the electorate - "no, you can't do that" then what's the point of having judicial review at all? I think there are those on both sides of the aisle who would like a sovereign legislature... so long as their party controls it, of course. (The perfect libertarian government-diverting machine would involve the legislature creating an endless stream of idiot laws, which promptly get gunned down by the courts, leaving everyone else to go about their business unmolested.)

SIV|5.16.08 @ 6:51PM|#

Mccain's "gun show loophole" refers to private party transfers.I expect a Democrat congess will define a gunshow as any part of the United States.

SIV|5.16.08 @ 6:54PM|#

McCain wants his audience to believe he will appoint judges who will strike down gun control laws that conflict with the Second Amendment.

That would be all of them at the Federal level.
"Shall not be infringed" seems pretty clear on that.

|5.16.08 @ 7:02PM|#

Bramblyspam,
First, your name gets stuck in my head even when away from Reason. Just an FYI.

Second,
From your first link:

Judicial Activism: the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.

In Heller v DC if the Supreme Court decides in favor of Heller, they are deciding against both established precedent AND legislative intent. They will of course be upholding the constitution.
In deciding Raich v. Gonzales the SCOTUS upheld both legal precedent and legislative intent but decided against the Constitution.
In deciding Wickard v. Filburn they upheld legislative intent and decided against both the Constitution and precedent.
In other words, any case that is decided upon by SCOTUS will usually run afoul of one or more of the "activist" qualifiers.

The only other part of that definition is "protecting or expanding individual rights" of which NONE of these cases will fall under if Heller is decided for the City of DC.

Eric Cartman|5.16.08 @ 7:05PM|#

If we allow the Jews to hide their Jew Gold, and I lose my ten dollar bet with Kyle, the terrorists win.

economist|5.16.08 @ 7:13PM|#

Elemenope,
What about free trade, lower taxes, lower (domestic)spending and less regulation? I would say that McCain is more pro-liberty on those issues than Obama. My main issue with the man is his stance on Iraq. As it is, I'm debating about whether I should vote for McCain or vote Libertarian (compromise my principles to salvage some policy issues, or preserve my principles and leave all policy issues to the socialists). Either way, it doesn't really make a difference, because in a democracy the vast majority doesn't give a damn about principles as long as they get their welfare/subsidy/tax credit/*insert government favor*. Note that I do not necessarily consider tax credits favors, but when the government makes up the loss by taxing others more heavily, or going deeply into debt, I consider it a form of vote-buying.

Geotpf|5.16.08 @ 7:54PM|#

Here's what I would do in regards to guns:

Regulate the militia, not the guns. That is, any member of the militia should be able to purchase, own, and carry (either open or concealed) any weapon within reason (IE, eliminate all bans on "assault weapons", but probably leave earlier bans on things like fully automatic weapons and the like). Define the militia as all "adult sane non-felon citizens". Prohibit all sales to non-militia members (including private party transactions) and require background checks to prevent sales to non-militia members (but not waiting periods). Ban any other restriction by local or state governments on the ownership or ability to carry firearms.

Icl|5.16.08 @ 8:10PM|#

Hey Neil,

This one is for you.

http://www.236.com/news/2008/05/14/if_they_imd_michelle_obama_and_6493.php

|5.16.08 @ 8:22PM|#

Kwix:
First, your name gets stuck in my head even when away from Reason. Just an FYI.

I use the name in a variety of places away from Reason. I like it a lot and I've gotten many positive comments on it over the years. :-)

Abdul|5.16.08 @ 8:43PM|#

In Heller v DC if the Supreme Court decides in favor of Heller, they are deciding against both established precedent AND legislative intent. They will of course be upholding the constitution.

There's almost no precedent on this issue that the Supreme Court is bound to follow. It's mostly circuit court stuff.

I think Bramblyspam nailed it.

Elemenope|5.16.08 @ 9:23PM|#

What about free trade, lower taxes, lower (domestic)spending and less regulation? I would say that McCain is more pro-liberty on those issues than Obama.

Nah, that's the media having drunk the kool-aid. McCain is fairly down the line partisan Republican, which these days means more statism in your bedroom *and* on the trading room floor.

Travis|5.16.08 @ 10:13PM|#

Judical activism is all in the eye of the beholder. Conservatives a crying foul over the California Supreme Court legalizing gay marriage. Saying the judges are overuling democracy. Liberals will say the same thing if the Supreme Court declares the DC gun ban unconstitutional.

rambo|5.16.08 @ 10:20PM|#

Here's what I would do in regard to guns:

Any firearm I can bear should be legal; otherwise, my right to bear arms has been infringed.

In particular, I should be able to bolt a M2 on my truck, load in a belt with about 1000 rounds, and roll down the highway.

That is called bearing arms.

Of course, no politician in the US today supports a right to bear arms. All you pussies whining about your 9mm's need to wake up to that fact.

Travis|5.16.08 @ 10:24PM|#

Hey Rambo,

How is your war in Burma going.

brian|5.17.08 @ 6:34AM|#

Neil | May 16, 2008, 5:25pm | #

So Neil, you oppose the activist judges who overturned the DC gun ban?

No, in that case the Supreme Court was upholding the federal principle.

And the California judges who upheld the 14th Amendment's federal principle of equal protection under the law for gays are not?

|5.17.08 @ 9:30AM|#

Incorporation is BS. Also illegaly ratified.

jkp|5.17.08 @ 9:40AM|#

Sigh. Can we have another insane discussion about the XIVth amendment by people who don't understand what the word "quorum" means? Please.

Benjamin9|5.17.08 @ 9:59AM|#

"Any firearm I can bear should be legal; otherwise, my right to bear arms has been infringed._ -->

Total agreement here. This may be the most honest, well worded, concise, beautiful answer I have ever heard. Bravo, rambo.

|5.17.08 @ 11:33AM|#

An individualist libertarian is one who believes that the Supreme Court and other judges should decide the law as they believe it should be decided, and that includes interfering with the States internal laws when they violate individual liberty as they see it.

A paleo libertarian beleives that the Bill of Rights should only apply to the Federal Government, and that States should only abide by their own Constitution except in those things they are explicitly forbidden by Article 1 Sec 10 to enact. The Tenth Amendment otherwise guarantees they can be as wise or foolish as they want to be. They can make the Southern Baptist Church the official religion in Georgia and the Catholic Church in Maryland if they so vote and it does not violate their own Constitution. The Fourteenth Amendment should either be struck down as improperly passed or narrowly interpreted such as writers like Raol Berger have to incorporate only the barest of rights to citizens.

I think that covers the boundaries of the debate. As a practical matter, I believe that it is impossible to draw the line rigidly today. Sometimes we should be happy when the individualist line emerges as precedent, other times when the paleo belief triumphs. Until technology and wealth allow us to abandon the state and its Constitutions all together.

GILMORE|5.17.08 @ 4:16PM|#

Neil | May 16, 2008, 5:08pm | #

If we allow activist judges to destroy the fabric of our society, the terrorists will win.

Neil | May 16, 2008, 5:15pm | #

The Neil posting above me is not me, but nevertheless I agree with his sentiment.

Is it Neil, or is it... Memorex?

sorry, that was a softball. When the parody is as good as the real thing, who needs Neil?

Neil|5.17.08 @ 5:03PM|#

You know you have a winner when you post the most absurd thing you can think of and that ends up being more or less what the original would have said.

economist|5.17.08 @ 5:48PM|#

Elemenope,
Some evidence, please?

|5.18.08 @ 12:42AM|#

H. L. Mencken:

Every election is a sort of advance auction sale of stolen goods.

The French Judge|5.18.08 @ 2:49PM|#

KNEEL DOES NOT WIN. WE TAKE OFF POINTS FOR HIS BEING AMERICAN PIGDOG.

LarryA|5.18.08 @ 8:54PM|#

McCain wants his audience to believe he will appoint judges who will strike down gun control laws that conflict with the Second Amendment. At the same time, he condemns "activist judges" who override the will of the people, as expressed by their legislative representatives, in the process "shrugging off generations of legal wisdom and precedent." But that is exactly what the Supreme Court will be doing if it declares the D.C. gun ban unconstitutional.

and In Heller v DC if the Supreme Court decides in favor of Heller, they are deciding against both established precedent AND legislative intent.

That might perhaps be valid if you're addressing only D.C.'s government. However, given that nationally "legislative representatives" have passed right-to-carry in 40 of 50 states, passed hunter harassment laws in 50 of 50 states, passed gun industry frivolous lawsuit laws in more than 30 states and Congress, all in the last twenty years, and are currently passing castle doctrine and no-confiscation-during-disaster (anti Katrina) laws right and left, I doubt you can make a case for a national anti-gun "will of the people, as expressed by their legislative representatives." Certainly not one that would get anywhere close to the D.C. "complete handgun ban no long guns for self-defense" law.

As D.C. itself noted, in the Federal enclave, federalism does not apply.