This weekend brought two very different conservative responses to the oral arguments in the gun rights case McDonald v. Chicago. Writing at The Washington Post, George Will argues that not only should the Supreme Court extend the Second Amendment to the states, it should do so by reviving the Privileges or Immunities Clause of the 14th Amendment, which “was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.” Notice Will’s use of the word thicket, a reference to Justice Felix Frankfurter’s influential argument that the courts should practice judicial restraint by avoiding the “political thicket” and deferring to the judgment of legislative majorities.
Now contrast that with National Journal’s Stuart Taylor Jr., who boiled the case down in equally Frankfurtian terms:
Why should the words of a few congressional leaders more than 140 years ago—as seen through the diverse, distorting lenses of current Supreme Court majorities—trump the views of elected majorities today?
As Justice Stephen Breyer asked, why should equivocal evidence of what was intended in 1868 wipe out a handgun ban thought by Chicago's elected leaders to have saved hundreds of 21st-century lives?
That’s one of the classic arguments for judicial restraint: If the law is a problem (the argument goes), overturn it at the ballot box, not at the courthouse. But of course the courts were designed as a check on the other branches, not as a rubber stamp for the will of the majority. Judicial restraint would not only nullify the judiciary's constitutional role, it would leave individual rights at the mercy of lawmakers.
Thankfully the Supreme Court seems ready to enter Chicago's gun control thicket.