Heller's Robert Levy on Whether the Decision Was Untoward "Judicial Activism"


Quick addendum to Damon Root's post below about conservative legal thinkers disturbed by undue "activism" in the Second Amendment-upholding Heller decision: the case's linchpin lawyer Robert Levy in the New Republic defends the decision in terms conservative judges ought to appreciate. An excerpt:

Reacting to the perceived excesses of the Warren Court and the ability of liberal interest groups to advance their agendas through the courts, many conservatives insist that courts must indiscriminately defer to the decisions of the executive and legislative branch. Yet blanket judicial deference effectively removes the courts from the meticulously crafted system of checks and balances that was designed by the Framers to prevent abuse of power. Over the years, the result of such judicial abdication has been to expand government, at all levels, at the expense of individual rights.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, through a cramped interpretation of the Constitution, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Look for my forthcoming book on the Heller case, Gun Control on Trial, and an excerpt from it in the December reason.