Are Judges Activists Only When They Overturn Laws McCain Likes?

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.