McDonald v. Chicago

In case you have not read it (justifiable, given the 200+ pages of opinions the case generated), the Supreme Court issued a decision holding that the Second Amendment applies equally to the states.  The prior decision striking down the DC gun ban applied only to federal restrictions.  The majority opinion is pretty straightforward. 

Justice Scalia’s separate opinion is what really caught my eye.  He does an excellent take-down of Justice Stevens’ dissent, including this brilliant response to Stevens’ attempt to cast his activist position as one of judicial restraint: 


The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason.  Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution.  The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd.  If there are no right answers, there are no wrong answers either.


The rest of the opinion simply eviscerates Stevens’ approach, which cannot be described as anything more principled than “the Court should allow restrictions that I like on rights that I don’t like (guns), and the Court should not allow restrictions that I don’t like on those rights that I do like (abortion).”

 I also enjoyed this part:

 JUSTICE STEVENS next suggests that the Second Amendment right is not fundamental because it is “different in kind” from other rights we have recognized. . . .  In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation’s history and tradition.
 I would add that it is also deeply grounded in the actual words of the freaking document.  You know, the part about “the right of the people to keep and bear Arms, shall not be infringed.”  It is amazing that Justice Stevens has no qualms about implying all kinds of things that are not in the text but cannot just accept it when the Constitution actually says something in black and white.Stevens’ posturing is just more of people on the left trying to wrap themselves in the mantle of judicial restraint, while taking positions that cannot possibly be squared with it.

Published in: on June 28, 2010 at 3:14 pm  Leave a Comment  

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